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/raid1/www/Hosts/bankrupt/CAR_Public/190304.mbx C L A S S A C T I O N R E P O R T E R Monday, March 4, 2019, Vol. 21, No. 45 Headlines ADVANCE STORES: Mullen Asserts Breach of Disabilities Act ADVANCED E: Crescent Suit Alleges Breach of Contract ALLEGHENY CASUALTY: Among Defendants in Bail Bond Premiums Case ALPARGATAS USA: Schertzer Alleges Fraud in S.D. California AMP: Final Report of Banking Royal Commission Set to Be Released ARIZONA: Faces Class Action Over Employees' Health Care BANANA REPUBLIC: Seeks Court Approval of Class Action Settlement BE AMAZED: Court Extends Time to Respond in Lynch BLACKROCK INSTITUTIONAL: Court Modifies Case Schedule Baird BRISTOW GROUP: Kokareva Sues over Plunge in Stock Price BURLINGTON COUNTY, NJ: $1.475MM Deal in Strip Search Suit OK'd CANADA: Koskie Minsky Sues AG Over Veteran Disability Pensions CLARK COUNTY, NV: CCEA Wins Class Action Arbitration CMRE FINANCIAL: "Bonaventure" Suit Alleges TCPA Violation COFFMAN INVESTMENT: Bobby King Seeks Minimum & Overtime Pay COLORADO TECHNICAL: Dawn Jones Sues over Telemarketing Calls CREDIT CONTROL: "Bagby" Suit Alleges FDCPA Violation CVS HEALTH: "Anarkat" Suit Alleges Exchange Act Violations DARTMOUTH COLLEGE: Lawyers Weigh in on Pending Class Action DELAWARE: Dep't of Corrections Faces Lawsuit Over Inmate Abuses DIETZ & WATSON: Rozeboom Settlement Has Preliminary Court Approval DIRECT ENERGY: 2nd Cir. Affirms Dismissal of G. Richards' Suit DONUTS CORP: Court Denies Dismissal Bid of Tapia FLSA Suit DYNAMIC LEDGER: Briefing Schedule Set in Tezos Securities Suit EMPIRE FINANCIAL: Monteverde Investigates SmartFinancial Sale FRONTLINE ASSET: Lebovits Asserts Breach of FDCPA in New York FYRE MEDIA: Ja Rule Apologizes Over Fyre Festival Debacle HONDA MOTORS: Faces Various Class Actions in U.S. Over Airbags HP INC: Website not Accessible to Blind People, Kiler Says HYUNDAI MOTOR: Faces Class Action Over Elantra Piston Problems INSTACART: Delivery Workers Don't Always Get Customer Tips INSTACART: Grocery Delivery Service Workers Demand Better Pay JP MORGAN: Settles Rate Rigging Class Action for US$7MM KING ARTHUR FLOUR: Website not Accessible to Blind, Dawson Says LANDS END: Garey Asserts Breach of Disabilities Act LEAF GROUP: Website not Accessible to Blind People, Dawson Says LIFETIME ENTERTAINMENT: 2d Cir. Affirms Dismissal of TCPA Suit LIVE NATION CONCERTS: Faces Fishcler Suit under ADA in New York METAGENICS INC: Inks Proposed Settlement in Medical Food Suit MICHIGAN: Court Expects to Hear Arguments in Property Tax Case NATIONAL COLLEGIATE: "Ashley" Suit Alleges Negligence NATIONAL COLLEGIATE: "Atkins" Suit Alleges Negligence NESTLE USA: Must Address Issues in Barrett Settlement NEW YORK: 2d Cir. Affirms Dismissal of M. Mitchell's Suit NFL: Plaintiffs Lose Bid to Transfer Saints Non-Call Game Case OYSTER HARBORS YACHT: Bishop Assert Breach of Disabilities Act PACIFIC GYPSUM: Removes Lopez's Labor Case to N.D. California PETZOLD'S YACHT: Bishop Alleges Violation under Disabilities Act PLYMOUTH PLACE: Keene Sues over Use of Biometric Data, Unpaid Wages PRINSTON PHARMACEUTICAL: Court Stays Judson Pending JPML Decision PUBLIC ACCESS: Class Action Over Excessive Court Doc Fees Pending PUBLIC ACCESS: Fees Harm Judiciary's Credibility, Judges Say ROCKSTAR GAMES: Grand Theft Auto Online Players to Get Incentives SAN BERNARDINO, CA: Court Dismisses Dickenson Civil Rights Suit SECURUS: Faces Class Action Over Costly Jail Telephone Charges STATE COMPENSATION: Enterprise Inc. Files Suit under Fraud STEINHOFF INT'L: PSA Wants Pension Fund to Join Class Action TEXAS: Faces Class Action Over Voting Rights Act Violation TILLY'S INC: Cal. App. Flips Demurrer to Wage Order 7 TNG GP: Court Modifies Pretrial Dates in J. Cooks' Suit U.S. REMODELERS: Removes Jackson's Labor Case to C.D. California UNITED STATES: HHS Defends Efforts to Reunite Migrant Children UNITED STATES: Local Woman Sues Over Partial Gov't Shutdown WEALTHY TRADE: Lopez-Cuyuch Seeks Unpaid Minimum and OT Wages WIRECARD AG: Rosen Law Firm Investigates Securities Claims XYLEM INC: Bishop Asserts Violation under Disabilities Act YUBA COUNTY, CA: Court OKs $1.7MM Attorney's Fees in Hedrick Suit [*] ALRC Report on Class Action Reform Presented in Parliament [*] Australia to Consult on ALRC Report on Class Action Reforms [*] D&O Premium Hike Blamed on Securities Class Action Activity ********* ADVANCE STORES: Mullen Asserts Breach of Disabilities Act --------------------------------------------------------- Advance Stores Company Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled Bartley Michael Mullen, Jr., individually and on behalf of all other persons similarly situated, Plaintiff v. Advance Stores Company Inc. doing business as: Advance Auto Parts, Defendant, Case No. 2:19-cv-00201-MPK (W.D. Penn., February 25, 2019). Advance Stores Company, Incorporated retails automotive parts and maintenance items. In the retail segment, ASC's stores offer a selection of brand name and proprietary automotive products for domestic and imported cars, and light trucks. These stores carry between 16,000 and 21,000 stock keeping units. The dealer stores consist of associate, sales center, and franchise dealers.[BN] The Plaintiff is represented by: Gary F. Lynch, Esq. Carlson Lynch Sweet & Kilpela, LLP 1133 Penn Avenue 5th Floor Pittsburgh, PA 15222 Tel: (412) 322-9243 Email: glynch@carlsonlynch.com - and – Kelly K. Iverson, Esq. Carlson Lynch Sweet Kilpela & Carpenter, LLP 1133 Penn Avenue 5th Floor Pittsburgh, PA 15222 Tel: (412) 253-4989 Email: kiverson@carlsonlynch.com - and – R. Bruce Carlson, Esq. Carlson Lynch Sweet Kilpela & Carpenter, LLP 1133 Penn Avenue 5th Floor Pittsburgh, PA 15222 Tel: (412) 322-9243 Email: bcarlson@carlsonlynch.com ADVANCED E: Crescent Suit Alleges Breach of Contract ---------------------------------------------------- Crescent Electric Supply Company, Inc. of New York, individually and on behalf of itself and all others similarly situated v. Advanced E Lighting LLC dba AER Lighting aka Advanced Energy Resources, LLC et al., Index No. 500539/2019 (N.Y. Sup. Ct., Kings Cty., January 9, 2019), is brought against the Defendants for breach of contract. Crescent entered into several agreements and contracts with Advanced to supply electrical construction, equipment, and materials and Advanced agreed to Crescent's Terms and Conditions. Despite placing several orders with Crescent, Advanced never made any payment. The Plaintiff Crescent was at all relevant times a domestic corporation authorized to do business in the State of New York with offices at 1200 Zerega Avenue, Bronx, New York 10462. Crescent was at all relevant times and continues to be engaged in the business of selling electrical materials, equipment and supplies. The Defendant Advanced E Lighting LLC dba AER Lighting aka Advanced Energy Resources, LLC is a New York limited liability company, with a principal place of business at 1316 65th Street, Brooklyn, New York 11219. [BN] The Plaintiff is represented by: Michael Korsinsky, Esq. KORSINSKY & KLEIN, LLP 2926 Avenue L Brooklyn, NY 11210 Tel: (212) 495-8133 ALLEGHENY CASUALTY: Among Defendants in Bail Bond Premiums Case --------------------------------------------------------------- RJ Vogt, writing for Law360, reports that anyone who's tried to get a California bail bond may have noticed that the nonrefundable premiums charged by various agencies hardly vary from one to the next. According to a statewide class action, that's no accident -- it's a price-fixing conspiracy. The antitrust complaint, believed to be the first of its kind by plaintiffs attorneys from Lieff Cabraser Heimann & Bernstein LLP and a host of social justice groups, claims the sureties that underwrite bonds have teamed up with their associated bail agents "to keep bail bond premiums higher than they would be if the California bail bonds market functioned competitively." The Jan 29. suit in Alameda County Superior Court seeks damages on behalf of "hundreds of thousands of people," including named plaintiffs Shonetta Crain and Kira Serna, who paid for bail while serving pretrial detention for charges that were later dropped. "Because defendants' conspiracy made bail bonds costlier for Californians, more people spent time in jail awaiting trial ... simply because they could not afford to pay defendants' supracompetitive premium rates," the complaint states. Dean Harvey, a partner at Lieff Cabraser, said in a statement that "everyone in our society deserves the benefits of competition." "Especially when their personal freedom is on the line," he added. Over 20 surety companies plus several bail agencies and associations are named as defendants in the litigation, including all three members of Allegheny Casualty International Fidelity Associated Bond, or AIA, the nation's largest bail surety administrator, and the Golden State Bail Agents Association. GSBAA President Greg "Topo" Padilla told Law360 that he's not prepared to comment specifically on the lawsuit. But he generally defended the bail industry as having done its part in keeping the justice system fair. "For years, the Golden State Bail Agents Association and others in the industry has done work at the Legislature, with judges and other entities in the criminal justice system to lower bail schedules," he said. The complaint says the industry has "nearly uniformly" relied on a default premium rate set at 10 percent of a posted bond. That rate allows them to collect as much as $308 million a year in nonrefundable fees from criminal defendants and their families, scoring an alleged 80 percent gross profit rate. The apparent uniformity in premium pricing over the past 15 years, according to the suit, comes despite a state law that allows sureties to offer rebates. Several bail agency websites actually claim that agents offering lower rates are "simply acting illegally or deceptively," such as Famous Bail Bonds and Scott Haynes Bail Bonds. The website for Bad Boys Bail Bonds states that "all bail bonds companies charge the same" 10 percent rate. But according to Stephanie Carroll, a Public Counsel attorney on the case, "we know that legally they can charge less." "This rigged system disproportionately hurts low-income folks and their families, who are often the ones scrambling to get their loved ones freed from jail and back home," she said in a statement. The suit traces the alleged conspiracy back to 2004, when a state court ruling blocked the California Department of Insurance from enforcing an anti-rebate statute. Ever since that decision, according to the CDI website, bail agents have been free to pursue competitive advantages via rebates. Following that ruling, industry leaders began loudly advocating against discounting bail premiums. American Surety Co. President and CEO William Carmichael penned a March 2005 article in which he predicted that "rampant premium discounting will result in the end of the bail bond business as we know it." "2005 will not be a year when we, as an industry, can sit passively by while competitive forces continue to encroach upon our markets," Carmichael, who also serves as the American Bail Coalition chairman, wrote. "I urge all of us to recognize the serious nature of the threats to our industry and work collectively to repel them. Leaving profit on the table, in the form of discounts or uncollected accounts receivable, is a fool's game." Mr. Carmichael did not immediately respond to a request for comment on Jan. 31, nor did representatives for AIA, the California Bail Agents Association and the Surety & Fidelity Association of America, among other contacted defendants. Only one California bail bondsman appears to have explained the availability of premium rebates online, according to the suit. Chad "The Bail Guy" Conley, who runs services in five Southern California counties, posted a 2014 outline of how state laws provide for discounts on bail premiums. In a Google Plus forum for the post, he commented that "the good ol boys club came after my license for trying to save clients money," and added that many agents "prefer price fixing" at 10 percent. Conley could not be reached for comment. "The mavericks who have opted to openly compete on price, either through lower filed rates or by advertising their lawful rebating authority, have faced retaliation from participants in the price-fixing conspiracy," the suit alleges. The litigation comes less than five months after former Gov. Jerry Brown signed a controversial law to abolish the state's entire money bail system. Originally set to go into effect this fall, the landmark law has been put on hold pending a November 2020 voter referendum that was backed by a coalition of bail industry associations, including some of the antitrust suit's defendants. Towards Justice director David Seligman, who represents the plaintiffs in the case, said in a statement that he is confident California will "someday" eradicate cash bail entirely. "In the meantime, Californians should have the power that comes from a competitive market and the ability to shop around and negotiate for cheaper bail bond premiums," he added. "The bail sureties have profited for too long off their collusive conduct on the backs of some of the most marginalized members of society." [GN] ALPARGATAS USA: Schertzer Alleges Fraud in S.D. California ---------------------------------------------------------- A class action lawsuit has been filed against Alpargatas USA, Inc. The case is styled as Kristen Schertzer, on behalf of all others similarly situated, Plaintiff v. Alpargatas USA, Inc. doing business as: Havaianas a Delaware Corporation and Does 1-50 inclusive, Defendants, Case No. 3:19-cv-00394-LAB-MSB (S.D. Cal., February 26, 2019). The docket of the lawsuit states the case type as Fraud. Alpargatas USA, Inc., doing business as Havaianas, provides footwear. The Company offers apparels for men, women, and children, as well as rain boots, and accessories. Havaianas operates in the United States.[BN] The Plaintiff is represented by: Todd D. Carpenter, Esq. Carlson Lynch Sweet Kilpela & Carpenter, LLP 1350 Columbia Street, Suite 603 San Diego, CA 92101 Tel: (619) 762-1910 Fax: (619) 756-6991 Email: tcarpenter@carlsonlynch.com AMP: Final Report of Banking Royal Commission Set to Be Released ---------------------------------------------------------------- Charis Chang and The Australian Associated Press report that no one was expecting banking royal commission to uncover the appalling behaviour that it did and it's hoped the institutions will finally face the consequences, including criminal charges. Senators Pauline Hanson and Derryn Hinch, who both pushed for the inquiry, say criminal charges should be laid after the royal commission uncovered shocking behaviour that has been labelled dishonest and inexcusable. "I believe in jail sentences, someone's got to pay for this," Ms Hanson told Sunrise this morning. Mr Hinch agreed and said some of the actions were "unconscionable". He also praised royal commissioner Kenneth Hayne QC for refusing to shake Treasurer Josh Frydenberg's hand during an awkward photo opportunity on Feb. 1. "It shouldn't have gone to the Treasurer, that report should have gone straight to the Governor-general, the Treasurer tried to milk it and Hayne to his credit said 'nope' and wouldn't shake hands and I thought, 'Good on you sunshine'," Mr Hinch said. Labor has said Prime Minister Scott Morrison voted against the royal commission 26 times during his time as treasurer. The party is warning the government not to provide any kind of protection racket for the banks in its response. "I'm not going to let the government off the hook. They didn't want this and now they are already trying to say, 'Well maybe we need to have an unethical banking sector, we don't want to go too hard against our friends in the banks'," Opposition leader Bill Shorten told the ABC's Insiders program. Commissioner Hayne QC delivered his report on Feb. 1 and the government has spent the weekend preparing a response to the findings before publicly releasing it on Feb. 4 at 4.20pm, after the stock market's close of trading. Prime Minister Scott Morrison has already said it was important to ensure banks and other players kept lending cash -- "the lubricant for the Australian economy" -- while also backing in the stability of financial markets. But Mr Shorten said this sounded like the government was already back-pedalling on making the banks accountable. "Is really what Mr Morrison is saying -- the only way to have a solid banking sector is an unethical banking sector?" he told Insiders. "I don't buy that, nor do thousands of small businesses, farmers and people who have been ripped off by the banks." He again committed Labor to "in principle" adopting all the royal commission's recommendations, saying there would have to be a "pretty amazing reason" not to. The Greens have already put out their wishlist of actions, ahead of seeing the report, which includes breaking up the banks' business model, returning oversight to the Australian Competition and Consumer Commission, and establishing a publicly owned bank. The commission took more than 10,000 submissions and held 69 days of public hearings. KEY SHOCKS AND REVELATIONS In an interim report released in September last year, Commissioner Hayne was particularly scathing about the $1 billion fees-for-no-service problem, which he labelled dishonest and inexcusable. Three of Australia's biggest financial players, CBA, NAB and AMP, admitted charging dead customers for services they were not receiving. This included AMP charging thousands of dead superannuation customers for life insurance, despite knowing there was no longer a life to insure. The scandal claimed the jobs of AMP's CEO Craig Meller and chair Catherine Brenner, led to a share price slump and sparked shareholder class actions. The inquiry's barristers recommended Australia's largest wealth manager face criminal charges for lying to the Australian Securities and Investments Commission. Mr Hayne in his interim report said AMP adopted an attitude towards the regulator that appeared to him not to be forthright and honest, but he left the matter in ASIC's hands. Dover Financial Advisers sole director Terry McMaster also sensationally collapsed while giving evidence to the royal commission after being accused of lying. Dover later agreed to stop providing financial services and Mr McMaster permanently left the industry. Following the interim report, the Australian Banking Association announced changes to its new industry code to end fees for no service and stop charging deceased estates. A woman who became one of the faces of the scandal, Jacqueline McDowall, told the commission how she and her husband lost their home and most of their superannuation after taking advice from a Westpac financial planner to sell their home and put the money into a self-managed super fund. The couple planned to buy a $1 million bed and breakfast to run in their retirement but this quickly unravelled when they told they were not actually allowed to live in their investment property. "I said, 'We sold our family home on your advice. We now don't have a family home to live in. So why would we then buy an investment property to rent to someone else when we haven't even got a property to live in ourself?'," Ms McDowall told the commission. There were also stories about aggressive sales tactics including from Freedom Insurance, which pressured an intellectually-disabled young man with Down syndrome into buying insurance over the phone. Financial company ClearView also admitted it committed criminal offences by making 300,000 unsolicited cold calls to sell life insurance. The inquiry also heard about the aggressive tactics of financial entities pushing inappropriate funeral insurance, high-interest loans and other products on to Aboriginal people with poor financial literacy. Mr Hayne said in relation to funeral insurance, the evidence pointed to predatory behaviour by insurers and salespeople. Meanwhile, a syndicate of National Australia Bank employees took $2800 bribes for fraudulent home loans with the money exchanged in white envelopes passed over the counter, the inquiry heard. THE POTENTIAL FALLOUT AMP suffered the biggest fallout over the scandal while the Commonwealth Bank earned the dubious title of the "gold medallist" for charging customers for financial advice they never received. Commissioner Hayne QC blamed greed for the widespread misconduct and his interim report said short-term profit had been pursued at the expense of basic standards of honesty. He also slammed ASIC and APRA for failing to mark and enforce the boundaries of permissible behaviour, saying the misconduct either went unpunished or the consequences did not meet the seriousness of what occurred. Both regulators have pledged to be tougher. ASIC now plans to take criminal and civil action more often, rather than negotiating resolutions with the big banks and others. It's also expected to become harder to get a loan as banks will have to do more to verify customers' income and their actual living expenses. Banks will also face pressure to radically change the way they pay staff including senior executives after Mr Hayne slammed the emphasis on rewarding sales and profits. The major banks all made changes to their remuneration practices after the independent Sedgwick review in 2017 recommended an overhaul, although the royal commission's interim report noted they continued to emphasise sales. The recommended changes will likely cover all bank staff, not just senior executives. Mr Hayne may recommend significant changes for brokers and other intermediaries in the home loan industry. He said reforms to broker remuneration agreed to by the industry, such as eliminating volume-based commissions, were limited and did not deal with the basic problem of people being encouraged to borrow more than they need. Financial advisers also face potential changes to their remuneration, most notably over grandfathered payments and trail commissions. When it comes to the insurance and superannuation industries, Mr Hayne has been considering whether cold calls to sell insurance should be banned and if some types of policies such as accidental death products should not be sold. [GN] ARIZONA: Faces Class Action Over Employees' Health Care ------------------------------------------------------- Brad Poole, writing for Courthouse News Service, reports that a transgender University of Arizona professor sued the state on Jan. 24 because the university doesn't cover gender reassignment surgery prescribed by his doctor. Russell B. Toomey, an associate professor of family studies and human development, filed the class action in federal court in Tucson on behalf of all state employees and their dependants, claiming the exclusion of a prescribed hysterectomy related to his gender reassignment violates the 14th Amendment of the Constitution and Title VII of the 1964 Civil Rights Act. All other medically required hysterectomies are covered, but not for a diagnosis of gender dysphoria, which is Toomey's diagnosis and one that many insurance plans use to qualify gender reassignment, according to the lawsuit. Toomey is represented by lawyers from the American Civil Liberties Union. "The Plan provides coverage for the same hysterectomies when prescribed as medically necessary treatment for other medical conditions. But, the Plan categorically excludes coverage for hysterectomies when they are medically necessary for purposes of ‘gender reassignment,'" the lawsuit says. That categorical exclusion violates the Constitution and the Civil Rights Act, Toomey argues. "Arizona provides the same discriminatory health plan to nearly all state employees and their dependents. That means hundreds, if not thousands, of transgender state employees or transgender dependents of state employees cannot receive medically necessary care," Toomey wrote on Jan. 24 on the ACLU blog Speak Freely. When other procedures' medical necessity is questioned, according to the lawsuit, there is an appeal process, but not for gender dysphoria. Transgender-related surgeries are automatically denied for state employees, even though all four health insurance companies that offer coverage under the state plan have opt-in standards for determining necessity of transgender surgery, the lawsuit says. Toomey was born a woman. He began testosterone therapy in 2003 and started living and identifying as a man. He had a medically prescribed mastectomy in 2004, according to the lawsuit. He is asking the state to remove the exclusion for transgender surgery and adopt a standard policy for assessing medical necessity of the surgery, the lawsuit says. "I know of at least 20 families affiliated with the University of Arizona that are harmed by the state's anti-trans health insurance policy . . . . I filed this lawsuit not only for me but also for all of the transgender and nonbinary youth and adults in Arizona whose lives would be made better by knowing that there is one less law that discriminatorily targets them," Toomey wrote on the ACLU blog. A spokeswoman for the Arizona Board of Regents did not immediately respond to a request for comment on Jan. 24 evening.[GN] BANANA REPUBLIC: Seeks Court Approval of Class Action Settlement ---------------------------------------------------------------- Christie Grymes Thompson, Esq. -- cgthompson@kelleydrye.com -- and Carmen Tracy, Esq. -- ctracy@kelleydrye.com -- writing for Kelly Drye's Ad Law Access, report that on January 14, Plaintiffs in the consolidated case of Veera v. Banana Republic, LLC, et al., filed for approval of a preliminary class action settlement after Plaintiffs Veera and Etman successfully argued that "frustration" and "embarrassment" over unclear discounts is sufficient to meet the requirements for injury. According to separate lawsuits filed against Banana Republic and The Gap, the companies displayed in-store signs promoting a class of merchandise for sale at a stated price (e.g., 40% off sweaters) or subject to a stated discount (e.g., "40% off your purchase") without clearly and conspicuously identifying the items that were excluded from the offer. The lawsuits alleged that these signs were either not accompanied by any disclosure of limitations, or were accompanied by a disclosure so small and closely colored to the sign background as to not be noticeable. In an action under California's Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumers Legal Remedies Act (CLRA), Plaintiffs claimed that, in reliance on the signs, they selected various items for purchase at the advertised discount, and out of frustration and embarrassment, ultimately bought some of the items, even after learning that the discount did not apply. Although a lower court granted summary judgment in favor of the retailers, the California Court of Appeals concluded that Plaintiffs met the requirements to allege injury. "Injury in fact is not a substantial or insurmountable hurdle," the Court noted, "Rather, it suffices to allege some specific, identifiable trifle of injury." The Court agreed with the Plaintiffs claim that, but for the allegedly misleading signs, Plaintiffs would not have made the clothing purchases (even after hearing of the non-discounted price at the register). The parties agreed upon the proposed settlement hours before the class certification hearings. The key terms of the settlement provide that The Gap will provide a one-time coupon for the purchase of up to 4 items in a Banana Republic or The Gap store at 30% off regular price to certain customers who purchased items from The Gap or Banana Republic stores in California, for use on a future purchase. The Plaintiffs in the action will also receive $8,000 each under the proposed settlement. The Gap will also pay $1 million in fees and costs, and all costs of administering the proposed settlement. A hearing is set for March 1st on the motion for preliminary approval of the settlement. This proposed settlement serves as a reminder about the importance of clearly and conspicuously disclosing the limitations of any offer, including the terms of a sale. We will watch the California Court of Appeals for further willingness to allow cases to go forward even when Plaintiffs claim little to no injury beyond "embarrassment." [GN] BE AMAZED: Court Extends Time to Respond in Lynch ------------------------------------------------- The United States District Court for the District of Nevada issued an Order extending the time to respond in the case captioned DALLAS LYNCH, on behalf of herself and all others similarly situated; Plaintiff, v. BE AMAZED SANDWICH CO., INC. d/b/a AND a/k/a CAPRIOTTI'S SANDWICH SHOP; MICHAEL SOLOMON, an individual; DOES 1 through 50; inclusive, Defendant(s). Case No. 2:18-cv-2425-APG-GWF. (D. Nev.). The parties' counsel of record that Defendants will have an extension of time up to and including to answer or otherwise respond to Plaintiff's Complaint. This is the second request for an extension of this deadline. The Complaint sets forth a purported wage and hour class action. The parties have met and had settlement discussions, and Defendants are in the process of transmitting extensive data to Plaintiff regarding the purported class members, following the review of which, the parties will be continuing their efforts to resolve this matter. A full-text copy of the District Court's January 31, 2018 Order is available at https://tinyurl.com/yco9ch9e from Leagle.com. Dallas Lynch, Plaintiff, represented by Christian James Gabroy, Gabroy Law Offices & Kaine M. Messer, Gabroy Law Offices. Be Amazed Sandwich Co., Inc., also known as Capriotti's Sandwich Shop also known as Capriotti's Sandwich Shop & Michael Solomon, Defendants, represented by Scott M. Mahoney -- smahoney@fisherphillips.com -- Fisher & Phillips, LLP. BLACKROCK INSTITUTIONAL: Court Modifies Case Schedule Baird ----------------------------------------------------------- The United States District Court for the Northern District of California, Oakland Division, issued an Order modifying the case schedule in the case captioned Charles Baird et al., Plaintiffs, v. BlackRock Institutional Trust Company, N.A., et al., Defendants. Case No. 4:17-cv-01892-HSG. (N.D. Cal.). After holding a telephonic conference on September 25, 2018, the Court granted in part the Parties' proposed modifications to the case schedule, setting, among other dates, the close of fact discovery on December 21, 2018; the close of expert discovery on class certification issues on February 28, 2019; and the completion of briefing on Plaintiffs' class certification motion on May 14, 2019. On December 10, 2018, the Court granted the Parties' Stipulation to Modify the Case Schedule, setting, among other dates, the close of fact discovery on February 4, 2019; the close of expert discovery on class certification issues on April 16, 2019; the completion of briefing on Plaintiffs' class certification motion on June 28, 2019; and the hearing on Plaintiffs' class certification motion on July 25, 2019. The Plaintiffs and the BlackRock Defendants continue to meet and confer about certain outstanding discovery disputes. The Plaintiffs and Mercer had not engaged in any substantive discovery at the time Mercer was added as a party in late August 2018, but have since worked diligently in their respective discovery efforts. Mercer and the Plaintiffs believe the parties and the Court would benefit from (1) avoiding potentially unnecessary discovery disputes before this Court, when they believe in good faith that they may resolve these issues if given the benefit of more time, and/or (2) allowing the depositions of Mercer witnesses to occur after documents are fully produced to avoid the risk that Mercer would be forced to present those witnesses for a second day of deposition. The Parties propose a modest extension of the existing case schedule by approximately fourteen days, including modifications outlined below such that the Court need not reschedule the existing July 25, 2019 hearing date on Plaintiffs' class certification motion, meaning the overall case schedule will not be enlarged by the proposed case schedule. The Parties agree there is good cause for a modest extension of the existing case schedule aside from the hearing date for Plaintiffs' class certification motion by approximately fourteen (14) days, to allow all Parties sufficient time to complete fact discovery and proceed with expert discovery related to class certification. The Parties further agree that, should the Court grant an extension on the case schedule, they will not issue any further written discovery requests on one another. The Plaintiffs will not seek to depose any current or former Blackrock or Mercer employee, other than those depositions the Parties have already noticed and/or scheduled, prior to the class certification hearing. No party will seek to depose any members of either putative class prior to the class certification hearing. Event Stipulated Deadline Close of Fact Discovery February 19, 2019 Opening expert reports on class cert. issues March 15, 2019 Rebuttal expert reports on class cert. issues April 16, 2019 Close of expert discovery on class cert. issues April 30, 2019 Motion for class certification May 21, 2019 Opposition to class certification motion June 20, 2019 Reply in support of class certification motion July 11, 2019 Class Certification Hearing July 25, 2019 at 2 p.m. A full-text copy of the District Court's January 31, 2018 Order is available at https://tinyurl.com/ya82jydc from Leagle.com. Charles Baird, individually, and on behalf of all others similarly situated, and on behalf of the BlackRock Retirement Savings Plan, Plaintiff, represented by Nina Rachel Wasow -- nina@feinbergjackson.com -- Feinberg, Jackson, Worthman & Wasow LLP, Daniel Ryan Sutter -- dsutter@cohenmilstein.com -- Cohen Milstein Sellers and Toll, PLLC, pro hac vice, Julia Horwitz -- jhorwitz@cohenmilstein.com -- Cohen Milstein Sellers Toll, Julie S. Selesnick -- jselesnick@cohenmilstein.com -- Cohen Milstein Sellers & Toll, PLLC, Karen L. Handorf -- khandorf@cohenmilstein.com -- Cohen Milstein Sellers and Toll PLLC, pro hac vice, Mary Joanne Bortscheller -- mbortscheller@cohenmilstein.com -- Cohen Milstein Sellers Toll PLLC, Michelle C. Yau -- myau@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC, pro hac vice & Todd F. Jackson -- todd@feinbergjackson.com -- Feinberg, Jackson, Worthman and Wasow LLP. BlackRock Institutional Trust Company, N.A., Blackrock, Inc., The BlackRock, Inc. Retirement Committee & The Investment Committee of the Retirement Committee, Defendants, represented by Brian David Boyle -- bboyle@omm.com -- O'Melveny Myers LLP, Adam Manes Kaplan -- akaplan@omm.com -- O'Melveny & Myers LLP, Meaghan McLaine VerGow -- mvergow@omm.com -- OMelveny and Myers LLP, Michael John McCarthy -- mmccarthy@omm.com -- O'Melveny & Myers LLP & Randall W. Edwards -- redwards@omm.com -- O'Melveny & Myers LLP. Catherine Bolz, Chip Castille, Paige Dickow, Daniel A. Dunay, Jeffrey A. Smith, Anne Ackerley, Nancy Everett, Joseph Feliciani, Jr., Ann Marie Petach, Michael Fredericks, Corin Frost, Daniel Gamba, Kevin Holt, Chris Jones, Philippe Matsumoto, John Perlowski, Andy Phillips, Kurt Schansinger & Tom Skrobe, Defendants, represented by Brian David Boyle, O'Melveny Myers LLP, Randall W. Edwards, O'Melveny & Myers LLP, Meaghan McLaine VerGow, OMelveny and Myers LLP & Michael John McCarthy, O'Melveny & Myers LLP. Amy Engel, Management Development & Compensation Committee of the BlackRock, Inc. Board of Directors, Kathleen Nedl, Marc Comerchero, Joel Davies, John Davis, Milan Lint & Laraine McKinnon, Defendants, represented by Brian David Boyle, O'Melveny Myers LLP, Meaghan McLaine VerGow, OMelveny and Myers LLP & Michael John McCarthy, O'Melveny & Myers LLP. BRISTOW GROUP: Kokareva Sues over Plunge in Stock Price ------------------------------------------------------- SVETLANA KOKAREVA, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, vs. BRISTOW GROUP INC., JONATHAN E. BALIFF, and L. DON MILLER, the Defendants, Case No. 4:19-cv-00509 (S.D. Tex., Feb. 14, 2019), is a class action on behalf of persons and entities that purchased or otherwise acquired Bristow securities between February 8, 2018 and February 12, 2019, inclusive. On February 11, 2019, after the market closed, the Company filed a Form 8-K with the Securities and Exchange Commission disclosing that it "did not have adequate monitoring control processes in place related to non-financial covenants within certain of its secured financing and lease agreements." On this news, the Company's share price fell $1.22, or nearly 40%, to close at $1.84 per share on February 12, 2019, on unusually heavy trading volume. On February 12, 2019, the Company filed a Form 8-K with the SEC to announce that (i) it had terminated its agreement to purchase Columbia Helicopters, Inc.; and (ii) Jonathan E. Baliff would retire as Chief Executive Officer and resign from the Board of Directors, effective February 28. On this news, the Company's share price fell $0.64, or nearly 35%, to close at $1.20 per share on February 13 on unusually heavy trading volume. According to the complaint, the Defendants allegedly 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, the Defendants failed to disclose to investors that (1) the Company lacked adequate monitoring processes related to non-financial covenants within its secured financing and lease agreements; (2) as a result, the Company could not reasonably assure compliance with certain non-financial covenants; (3) as a result, the Company was reasonably likely to breach certain agreements; (4) as a result, the Company had understated its short-term debt; (5) the required corrections would materially impact financial statements; (6) there was a material weakness in the Company's internal controls over financial reporting; and (7) as a result of the foregoing, the Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. As a result of the 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. Bristow is an industrial aviation services provider with major transportation operations in the North Sea, Nigeria and the Gulf of Mexico, and in most other major offshore energy producing regions of the world.[BN] Attorneys for the Plaintiff: Joe Kendall, Esq. Jamie J. Gilmore, Esq. KENDALL LAW GROUP, PLLC 3811 Turtle Creek Blvd., Suite 1450 Dallas, TX 75219 Telephone: 214-744-3000 Facsimile: 214-744-3015 E-mail: jkendall@kendalllawgroup.com jgilmore@kendalllawgroup.com - and - Lionel Z. Glancy, Esq. Robert V. Prongay, Esq. Lesley F. Portnoy, Esq. Charles H. Linehan, Esq. Pavithra Rajesh, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 BURLINGTON COUNTY, NJ: $1.475MM Deal in Strip Search Suit OK'd -------------------------------------------------------------- The United States District Court for the District of New Jersey issued an Opinion granting Plaintiffs' Motion for Final Approval of the Class Action Settlement in the case captioned TAMMY MARIE HAAS and CONRAD SZCZPANIAK, individually and on behalf of a class of similarly situated individuals, Plaintiffs, v. BURLINGTON COUNTY, et al., Defendants. Civil No. 08-1102 (NLH/JS). (D.N.J.). The Plaintiffs claim BCCF and Burlington County had an unconstitutional and illegal policy of strip-searching all individuals entering their facilities without first establishing reasonable suspicion. Specifically, Plaintiffs Haas and Szczpaniak brought claims on behalf of individuals being detained on non-indictable offenses who were subject to this alleged policy. The claims were brought under 42 U.S.C. Section 1983 and the New Jersey Civil Rights Act (NJCRA). The Settlement's Value Class Members are entitled to a share of the settlement's value. A settlement fund has been established in the amount of $1,475,000, paid into by both Burlington County and its insurer. Class Members are eligible to receive up to $400 per claim. If the Class Members exceed 3,487, the amount per claim will be reduced on a pro-rata basis. If the settlement fund is not entirely exhausted by claimants, the remaining funds will revert back to Defendants and their insurance carrier. A class action, pursuant to Federal Rule of Civil Procedure 23(e), cannot be settled without the approval of the Court and a determination that the proposed settlement is fair, reasonable, and adequate. In assessing the fairness of a class action settlement, a district court should consider several factors called the Girsh factors, including: (1) the complexity, expense, and likely duration of the litigation (2) the reaction of the class to the settlement (3) the stage of the proceedings and the amount of discovery completed (4) the risks of establishing liability (5) the risks of establishing damages (6) the risks of maintaining the class action through the trial (7) the ability of the defendants to withstand a greater judgment (8) the range of reasonableness of the settlement fund in light of the best possible recovery and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Complexity, Expense, and Likely Duration of the Litigation This factor is intended to capture the probable costs, in both time and money, of continued litigation. Generally, where bringing a litigation to its conclusion would be legally and factually complex and extremely expensive and time-consuming, this factor favors settlement. This is a class action concerning claims by 13,895 potential claimants. To bring this action to judgment via trial, this Court would likely need to consider a class certification motion, summary judgment motions, and pre-trial motions. In addition, more discovery would likely be requested and multiple appeals would likely be taken. Trial would likely be long, complex, and burdensome upon the Court and the parties. Plaintiffs estimate this process, including trial, would take another three years. This, Plaintiffs assert, could lead to less class members being able to claim a benefit. For these reasons, the Court finds this factor weighs in favor of approving the Settlement Agreement. The Reaction of the Class to the Settlement The second Girsh factor attempts to gauge whether members of the class support the settlement. This factor requires the Court to consider the objections (or lack thereof) of the class members to the settlement. When no class members, or only a small portion, object to the settlement, that fact strongly favors settlement. Here, there has been one objection to the settlement agreement, which may be fairly characterized as an objection to the incentive award, not the award to the individual class members. This fact strongly favors approving the Settlement Agreement. The Stage of the Proceedings and the Amount of Discovery Completed The third Girsh factor captures the degree of case development that class counsel had accomplished prior to settlement. Discovery in this case included: Substantial document production to determine the identity of putative class members and Defendants' policies and practices applicable to this case, A walkthrough of the Burlington County Jail and Depositions of Sgt. Williams, C.O. Leinhauser, Warden Artis (the Rule 30(b)(6) designee), Captain Schultze, Plaintiff Haas, and Plaintiff Szczpaniak. This discovery took place over the course of approximately one year, between November 2012 and September 2013. As the parties know, this case has been pending before the Court for nearly a decade. This Court finds this factor weighs in favor of approving the settlement. The Risks of Establishing Liability and the Risks of Establishing Damages The risks of litigating this case to its conclusion, as in many of the cases before this Court, are manifest and multifaceted. The parties are likely to contest certification, liability, and whether damages7 are appropriate. Liability was not certain in this case. Each of these is an issue complicated in its own right. As observed by Judge Schneider and this Court, full litigation of this matter may have required litigation of a complicated constitutional issue left unresolved in Florence, the adjudication of which may have required years of trial and likely appellate litigation including petitions before the high court. Even if the Plaintiffs were successful on all of these issues, the parties will still be left to determine which claimants are properly within the Class. These are precisely the reasons why settlement is favored by the parties in the vast majority of cases before the Court and why it should be favored in this specific case. Accordingly, these factors favor approving the Settlement Agreement. The Risks of Maintaining the Class Action through the Trial The sixth Girsh factor measures the likelihood of obtaining and maintaining a class certification if the action were to proceed to trial because the prospects for obtaining certification have a great impact on the range of recovery one can expect to reap from the class action. A district court may decertify or modify a class at any time during the litigation if it proves to be unmanageable. For that reason, the Court finds this factor to be neutral. The Ability of the Defendants to Withstand a Greater Judgment The seventh Girsh factor considers whether the defendants could withstand a judgment for an amount significantly greater than the settlement. Even if a party could afford to pay more [that] does not mean that it is obligated to pay any more than what the class members are entitled to under the theories of liability that existed at the time the settlement was reached. The Plaintiffs here explain that the Defendants are likely unable to sustain a larger judgment. In this case, a significant dispute erupted between Defendants and their insurance carrier. This, according to Plaintiffs, imposed the risk of a complete denial of coverage, which would have left the burden of this judgment solely on Defendants, a public entity with limited coffers. The Court finds this factor also favors approving the Settlement Agreement. The Range of Reasonableness of the Settlement Fund in Light of the Best Possible Recovery and in Light of All the Attendant Risks of Litigation It is difficult to ascertain what the best possible recovery would be in this factual scenario, especially for an individual plaintiff outside of the class context. Cases concerning this particular type of constitutional or statutory harm are usually tried in the class context. It appears that this would be a reasonable settlement in light of the best possible recovery and is certainly within the range of recoveries in other, similar class actions. Considering the relatively old age of the case and the dispute between Defendants and their insurer, it appears Plaintiffs are correct in asserting this is reasonable in light of the best possible recovery and the attendant litigation risks. Thus, this Court finds these two factors weigh in favor of approving the settlement. The analysis of the Girsh factors confirms that the proposed settlement is fair, reasonable, and adequate. The Court therefore approves the Settlement Agreement. A full-text copy of the District Court's January 31, 2018 Order is available at https://tinyurl.com/y8uqfrwn from Leagle.com. TAMMY MARIE HAAS, Individually and on behalf of a Class of Similarly Situated Individuals, Plaintiff, represented by CARL D. POPLAR, DAVID J. NOVACK -- dnovack@buddlarner.com -- BUDD LARNER, PC, JAMIE BETH GOLDMAN, ROBERT BRUCE WOODRUFF, SCHILLER & PITTENGER, P.C., SETH RICHARD LESSER, KLAFTER OLSEN & LESSER, LLP, WILLIAM A. RIBACK, WILLIAM RIBACK, LLC, SONYA M. LONGO -- slongo@buddlarner.com -- BUDD LARNER, PC & TERENCE W. CAMP -- tcamp@buddlarner.com -- BUDD, LARNER, P.C. CONRAD SZCZPANIAK, Plaintiff Consolidated, represented by CARL D. POPLAR, FRAN L. RUDICH, KLAFTER OLSEN & LESSER LLP, SETH RICHARD LESSER, KLAFTER OLSEN & LESSER, LLP & WILLIAM A. RIBACK, WILLIAM RIBACK, LLC. BURLINGTON COUNTY, Defendant, represented by BETSY G. RAMOS -- bramos@capehart.com -- CAPEHART & SCATCHARD, EVAN H.C. CROOK, CAPEHART SCATCHARD, MICHELLE L. COREA, CAPEHART AND SCATCHARD, P.A. & LAURA DANKS, CAPEHART & SCATCHARD PA. BURLINGTON COUNTY CORRECTIONAL FACILITY & RONALD COX, both in his individual and Representative capacity as Warden of the Burlington County Jail, Defendant Consolidateds, represented by MICHELLE L. COREA, CAPEHART AND SCATCHARD, P.A. & LAURA DANKS, CAPEHART & SCATCHARD PA. CANADA: Koskie Minsky Sues AG Over Veteran Disability Pensions --------------------------------------------------------------- Koskie Minsky LLP in Toronto commenced a class action against the Attorney General of Canada on behalf of all veterans who were in receipt of disability pensions or disability awards between 2002 and 2010 from Veteran Affairs Canada. The Statement of Claim, issued in Federal Court on January 25, 2019, alleges that the Attorney General of Canada, acting through Veteran Affairs Canada, miscalculated the disability pensions and disability awards of veterans between 2002 and 2010. As a result of this error, veterans have not received the full amount of benefits they are entitled to, or interest on those benefits. The claim alleges that the Attorney General of Canada breached its fiduciary duties, contractual obligations, and was negligent in the administration of disability pensions and disability awards. The lawsuit seeks $600 million in damages. The representative plaintiff is Jean-Francois Pelletier. From 1986 to 2005, Mr. Pelletier served as a Canadian Armed Forces Member in the Royal Canadian Navy. In 2002, he was deployed to the Gulf Region serving in Operation Apollo, Canada's military contribution to the United States-led international campaign against terrorism. Mr. Pelletier was injured in the course of his duties. Since 2002, he has received a disability pension from Veteran Affairs Canada. Veteran Affairs Canada has not disclosed the calculation error to him, or paid the disability pension benefits it owes to him from 2002 to 2010. "Veterans dedicated their lives to the service of this country and deserve to be paid the benefits owed to them", said Kirk M. Baert, the lawyer leading the case at Koskie Minsky LLP. Kirk M. Baert, Esq. 20 Queen St W, Toronto Ontario M5H 3R3 Canada Phone: (416) 977-8353 Email: kmbaert@kmlaw.ca [GN] CLARK COUNTY, NV: CCEA Wins Class Action Arbitration ---------------------------------------------------- Gabriella Benavidez, writing for FOX5 Las Vegas, reports tha the Clark County Education Association announced on Jan. 24 the union won a class action arbitration for educators throughout Clark County. According to CCEA, the arbitration affects anyone who was hired during the 2016-2017 school year and came to the Clark County School District with any prior experience, not within the past three school years, as a licensed employee. CCEA alleged CCSD had violated the Collective Bargaining Agreement by placing new hires that came to the school district as "an experienced licensed employee, but who had not been employed as a licensed employee within the the previous three school years prior to starting at CCSD." Those who were affected by the arbitration are scheduled to placed on a salary schedule "and will be made whole for all damages," CCEA said. The damages include salary backpay from the start of the person's hire and any related benefits. "This is yet another victory we have won for educators in Clark County," CCEA said in a statement.[GN] CMRE FINANCIAL: "Bonaventure" Suit Alleges TCPA Violation --------------------------------------------------------- Emma Bonaventure, individually and on behalf of all others similarly situated v. CMRE Financial Services, Inc., Case No. 2:19-cv-00179 (C.D. Calif., January 9, 2019), is brought against the Defendant for violation of the Telephone Consumer Protection Act. The Plaintiff alleged that the Defendant makes calls using an automatic telephone dialing system ("ATDS") or prerecorded voice to cellular telephone numbers whose owners have not provided prior express consent to receive such calls. The Defendant also makes calls using an ATDS or prerecorded voice to cellular telephone numbers whose owners have revoked any prior express consent to receive such calls. The Plaintiff, Emma Bonaventure, is a natural person and a citizen of California, residing in San Bernardino County, California. The Defendant CMRE Financial Services, Inc. provides accounts receivables management services to healthcare organizations. The Defendant is a California corporation with principal place of business in Brea, California. [BN] The Plaintiff is represented by: Beth E. Terrell, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 North 34th Street, Suite 300 Seattle, WA 98103-8869 Tel: (206) 816-6603 Fax: (206) 319-5450 E-mail: bterrell@terrellmarshall.com COFFMAN INVESTMENT: Bobby King Seeks Minimum & Overtime Pay ----------------------------------------------------------- BOBBY KING, Individually and on Behalf of all Others Similarly Situated, the Plaintiff vs. COFFMAN INVESTMENT COMPANY; HH, INC.; a nd GREENWOOD MANOR, LP, the Defendants, Case No. 4:19-cv-00122-KGB (E.D. Ark., Feb. 14, 2019), seeks a declaratory judgment, monetary damages, liquidated damages, prejudgment interest, and costs, including a reasonable attorney's fee, within the applicable statutory limitations period, as a result of the Defendants' failure to pay proper minimum wage and overtime compensation under the Fair Labor Standards Act, and the Arkansas Minimum Wage Act. The case is a collective action brought by the Plaintiff, individually and on behalf of all hourly-paid employees employed by the Defendants at any time within a three-year period preceding the filing of the complaint. The Plaintiff was employed as an hourly maintenance working for the Defendants' apartment home complexes in Pine Bluff and White Hall. The Plaintiff began his employment with the Defendants on or about June 2013 or 2014, and retired on October 1, 2018. According to the complaint, during the entirety of the Plaintiff's employment, the Plaintiff and other hourly employees were classified by the Defendants as non-exempt hourly employees and were paid an hourly rate. The Defendants paid the Plaintiff $11.00 per hour for 40 hours per week, regardless of how many hours he worked. The Plaintiff regularly worked more than 40 hours in a work week and recorded his time on timesheets with specific information regarding his overtime hours, including date, time, and location of after-hours repairs. The Defendants did not pay the Plaintiff overtime wages, despite him working overtime hours, the lawsuit says. The Defendants operate a residential real estate business providing multi-family housing in the form of apartment complexes.[BN] Attorneys for the Plaintiff: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford Road, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: josh@sanfordlawfirm.com COLORADO TECHNICAL: Dawn Jones Sues over Telemarketing Calls ------------------------------------------------------------ DAWN JONES, individually and on behalf of all other persons similarly situated, the Plaintiff, vs. COLORADO TECHNICAL UNIVERSITY, INC., the Defendant, Case No. 1:19-cv-00776-SCJ (N.D. Ga., Feb. 14, 2019), seeks to stop the Defendant's practice of making unsolicited telemarketing calls to the telephones of consumers nationwide, and to obtain redress for all persons injured by its conduct. According to the complaint, in an effort to solicit potential customers/students, Defendant recruited, or employed, call centers' which began making telephone calls, en masse, to consumers across the country. The Defendant or its agents purchase leads from multiple lead generators that obtain consumer contact and demographic information from a number of sources. The Defendant conducted wide scale telemarketing campaigns and repeatedly made unsolicited calls to consumers' telephones -- whose numbers appear on the National Do Not Call Registry -- without consent, all in violation of the Telephone Consumer Protection Act. The Plaintiff files the lawsuit and seeks an injunction requiring the Defendant to cease all unsolicited telephone calling activities to consumers registered on the National Do Not Call Registry. By making the telephone calls at issue in this Complaint, the Defendant caused the Plaintiff and the members of a putative Class of consumers actual harm, including the aggravation, nuisance, and invasion of privacy that necessarily accompanies the receipt of unsolicited and harassing telephone calls, as well as the monies paid to their carriers for the receipt of such telephone calls, the lawsuit suit says. Colorado Technical University, Inc. is a for-profit online school based in Colorado.[BN] Attorneys for the Plaintiff: Henry A. Turner, Esq. TURNER LAW OFFICES, LLC 403 W. Ponce de Leon Ave., Ste. 207 Decatur, GA 30030 Telephone (404) 378-6274 E-mail: hturner@tloffices.com - and - Jarrett Ellzey, Esq. W. Craft Hughes, Esq. HUGHES ELLZEY, LLP 1105 Milford Street Houston, TX 77006 Telephone: (713) 554-2377 Facsimile: (888) 995-3335 E-mail: craft@hughesellzey.com jarrett@hughesellzey.com CREDIT CONTROL: "Bagby" Suit Alleges FDCPA Violation ---------------------------------------------------- Shaniece Bagby, individually and on behalf of all others similarly situated v. Credit Control LLC, Bureaus Investment Group Portfolio No 15, LLC, and John Does 1-25, Case No. 2:19-cv-00791 (E.D. Pa., February 25, 2019), is brought against the Defendants for violation of the Fair Debt Collection Practices Act. The Plaintiff alleged that the Defendants deceived the consumer by omitting the complete and accurate requirement that every part of a consumer's dispute of a debt must be in writing. The Plaintiff is a resident of the Commonwealth of Pennsylvania. The Defendants are debt collectors. [BN] The Plaintiff is represented by: Antranig Garibian, Esq. GARIBIAN LAW OFFICES, P.C. 1800 JFK Blvd., Suite 300 Philadelphia, PA 19103 Tel: (215) 326-9179 E-mail: ag@garibianlaw.com CVS HEALTH: "Anarkat" Suit Alleges Exchange Act Violations ---------------------------------------------------------- Janak Anarkat, individually and on behalf of all others similarly situated v. CVS Health Corporation, Larry J. Merlo, and David M. Denton, Case No. 1:19-cv-01725 (S.D. N.Y., February 25, 2019), is brought against the Defendants for violations of the federal securities laws and to pursue remedies under the Securities Exchange Act of 1934. This is a federal securities class action on behalf of a class consisting of all persons other than Defendants who purchased or otherwise acquired CVS Health securities between May 21, 2015 and February 20, 2019, both dates inclusive. The Plaintiff alleged that the Defendants made false and misleading statements and failed to disclose that: (i) CVS Health’s financial condition and expected earnings were deteriorating as a result of rising costs and poor results associated with the Omnicare Acquisition; and (ii) as a result, CVS Health's public statements were materially false and misleading at all relevant times. The Plaintiff acquired CVS Health securities at artificially inflated prices during the Class Period. The Defendant CVS Health was founded in 1892 and is headquartered in Woonsocket, Rhode Island. The Company was formerly known as CVS Caremark Corporation and changed its name to CVS Health Corporation in September 2014. CVS Health, together with its subsidiaries, provides integrated pharmacy health care services, operating through its Pharmacy Services and Retail/LTC segments. CVS Health's common stock trades on the New York Stock Exchange under the ticker symbol "CVS." The Defendant Larry J. Merlo has served as CVS Health’s President and Chief Executive Officer at all relevant times. The Defendant David M. Denton has served as CVS Health’s Executive Vice President and Chief Financial Officer at all relevant times. [BN] The Plaintiff is represented by: Michael Korsinsky, Esq. KORSINSKY & KLEIN, LLP 2926 Avenue L Brooklyn, NY 11210 Tel: (212) 495-8133 DARTMOUTH COLLEGE: Lawyers Weigh in on Pending Class Action ----------------------------------------------------------- Eileen Brady, writing for The Dartmouth, reports that a pretrial conference is set to be held on Feb. 19 to establish a schedule of events as proceedings continue in the $70 million sexual misconduct lawsuit against the College. Dartmouth will continue to "defend itself as an institution" according to a College press release addressing its answer to the allegations. The statement added that the College will not defend the actions of the three former faculty members in the psychological and brain sciences department named in the suit -- Todd Heatherton, William Kelley and Paul Whalen. The College's 85-page response to the suit was filed on Jan. 15. The class action, brought by seven former and current Dartmouth students, alleges that the College allowed three professors in the psychology and brain sciences department to sexually harass and abuse female students for more than 16 years. The next official step in the court proceedings is a pretrial conference that would occur Feb. 19, according to Charles Douglas, Esq. -- chuck@nhlawoffice.com -- a Concord, New Hampshire attorney serving as the local counsel, or the attorney located in the state the case is filed in. Douglas added that if the parties can agree on a schedule of events in the case going forward, the conference may not be necessary. "If they can agree, there may not need to be a conference," he said. "But otherwise, the court wants to see the lawyers and just get an update on how long it looks like we're going to need for discovery of facts and documents prior to getting it ready for trial." Shortly after the schedule is established, the discovery period will begin, which often lasts around a year in class action, according to Deborah Marcuse, Esq. -- dmarcuse@sanfordheisler.com -- co-lead counsel for the seven plaintiffs. Marcuse added that the plaintiffs will also have the right to amend the complaint, possibly by adding new claims or new parties in the class. New claims could include those that fall under the jurisdiction if Title VII, which is the federal statute proscribing discrimination in employment, according to Marcuse. "Arguments have been made and accepted by a variety of entities regarding graduate students' status as employees," Marcuse said. "Obviously there are times when graduate students are employees in a way that everyone would recognize where they're paid to do a job, but generally speaking, there are also broader arguments to be made about graduate students as employees during the primary part of [their] graduate education because of the work that they are doing." During the discovery process, lawyers will exchange information they have acquired, including interrogatory responses -- which are written responses to questions -- and depositions, or testimonies taken under oath. Marcuse added that the discovery process may also include questions of whether the class -- currently defined as current or former graduate or undergraduate students in PBS -- should be certified. Certification means the court believes there are enough similarities among the plaintiffs to maintain one larger lawsuit. Class discovery could be done at the same time as the rest of the discovery process, or the two could be split, Marcuse said. "At some point, assuming that plaintiffs continue to wish to proceed as a class action, which I do assume at this point, we would be seeking certification of one or more classes," she said. The judge overseeing the case will be Landya B. McCafferty of the United States District Court for the District of New Hampshire. Appointed in 2013 by Barack Obama, McCafferty is the first to woman to serve as a district judge of the U.S. District Court for the District of New Hampshire. The case was reassigned to McCafferty after the original judge, Judge Joseph A. DiClerico Jr., recused himself on Nov. 27, 2018. The case may be settled if parties can come to an agreement without going to trial. If the case is not settled or resolved through other means, it may go to trial, though that could be months or years from now, according to both Douglas and Marcuse. In its 85-page Jan. 15 court filing, Dartmouth maintained that its administration was not aware of the misconduct until affected students filed reports in April 2017, at which time the school "move expeditiously to investigate" the claims. Among the steps taken was a "rigorous and objective review consisting of separate investigations of each of the former faculty members, led by an experienced external investigator who interviewed more than 50 witnesses and reviewed extensive documentation," according to the Jan. 22 press release. Based on the results of this review, the College took the "unprecedented" action of seeking to revoke the tenure and employment of all three professors, the filing states. Before this could happen, two of the involved professors resigned and the other retired, according to the statement. The filing also said that Dartmouth was aware of "isolated" sexual harassment incidents dating back to 2002, but that the incidents were handled properly.[GN] DELAWARE: Dep't of Corrections Faces Lawsuit Over Inmate Abuses --------------------------------------------------------------- Xerxes Wilson, writing for Delaware News Journal, reports that the man who said he organized the 2017 uprising and hostage standoff at Delaware's largest prison has sued state corrections officials claiming inmates have been "physically, mentally and emotionally" abused by those running the state's prisons. Dwayne Staats filed the lawsuit in Delaware District Court in January along with eight other inmates charged with the murder of a correctional officer during the Feb. 2017 uprising James T. Vaughn Correctional Center's C building. The lawsuit claims the defendants were unnecessarily beaten by police after the building was retaken and denied medical care in the months following. It also accuses corrections officials of disposing of irreplaceable items that belonged to inmates housed in C Building. The lawsuit names Delaware Department of Corrections Commissioner Perry Phelps, other current and former DOC officials, the DOC's tactical police unit and one of the state's primary contractors for inmate medical services as defendants. "The higher ranking officers and administration at (Vaughn) knew about the abuses and torment permeating throughout the environment," the hand-written complaint states. "They chose to either support or encourage these behaviors or turn a blind eye to them." Specifically, the lawsuit claims the defendants were unnecessarily beaten by tactical police that reclaimed C building without resistance following the standoff. A team of police swarmed the building, ending the 18-hour standoff. Correctional Officer Steven Floyd was found dead and a prison counselor was rescued without physical harm. Inmates testifying in the ongoing criminal trials for the uprisings have said police removed dozens of remaining inmates from the building and used unnecessary force. The federal lawsuit gives other examples. Roman Shankaras, a plaintiff in the lawsuit and defendant in a pending murder case tied to the uprising, claims police sprayed mace "all over his face," stomped on his lower back and "an unknown object got shoved near his rectum." Plaintiff Lawrence Michaels, who is also awaiting trial, claims that his mouth was forced open and mace sprayed directly down his throat as police choked him. Lt. Brian Vanes, who commanded the tactical police team, recently testified about inmates' treatment in an ongoing criminal trial tied to the uprising. He said some inmates did not cooperate with police orders to get on the floor so force was used. The lawsuit filed by the inmates claims police were not reacting to resistance. The lawsuit also claims the plaintiffs were denied medical care in the weeks after the lawsuit. Plaintiff Jarreau Ayers claims a scheduled surgery on his knee was never conducted. Ayers represented himself against murder charges for the uprising last year. A jury acquitted him of murder but found him guilty of kidnapping, assault and conspiracy. The inmates claim that corrections officials and Delaware State Police investigators trashed their belongings after the building was retaken. Staats, who was convicted of murder, kidnapping, assault and conspiracy last year, made note of his lost belongings in his own trial testimony. He discussed pictures in state's evidence of his belongings intact after the hostage standoff ended. He included those pictures as exhibits to the lawsuit. "So my stuff was deliberately thrown away," he testified in November looking up at State Police Detective David Weaver or corrections officials seated behind him. "But we'll get to the bottom of that." Each of the plaintiffs in the lawsuit are either on trial, scheduled to stand trial or have been tried for crimes associated with the uprising. Staats testified at his trial last year that he recruited fellow lifers to take control of the building so his message about the inhumane treatment of prisoners and unfair treatment of corrections employees could reach the ears of Governor John Carney. Ayers said he played a minimal role in the hostage standoff. Plaintiffs Abednego Baynes, Kevin Berry, John Bramble and Obadiah Miller are all currently on trial facing charges including first-degree murder for the uprising. Plantiffs Shankaras, Michaels and Abdul-Haqq El-Quadeer are scheduled to be tried on murder charges later this year. The men each filed the lawsuit representing themselves. Staats has since moved to have counsel appointed. The defendants in the lawsuit have not yet responded. A spokeswoman for the DOC declined to comment on pending litigation. The lawsuit parallels a similar legal challenge filed in New Castle County Superior Court late last year that seeks class-action status on behalf of more than 100 inmates. It also claims C-Building inmates were beaten, denied basic rights and had their belongings destroyed. The two lawsuits also say officials are liable for poor or malicious management of the prison system before the uprising. The alleged lapses in management include inconsistent application of rules, poor medical and mental health treatment, dysfunctional grievance system and limited access to rehabilitative programming -- issues inmates communicated to The News Journal and hostage negotiators during the 2017 standoff. Staats and others were initially represented by Stephen Hampton, who filed the class-action lawsuit last year. Mr. Hampton said he dropped Staats and others who had been criminally indicted in the case. He said their involvement in both his case and the criminal case would have hindered his lawsuit. State officials have already paid $7.5 million to settle a lawsuit filed on behalf of Floyd's family and other non-inmate hostages in the building. The lawsuit claimed poor management led to the uprising, findings echoed by a report commissioned by Carney in the weeks after the uprising. [GN] DIETZ & WATSON: Rozeboom Settlement Has Preliminary Court Approval ------------------------------------------------------------------ The United States District Court for the Western District of Washington issued an Order granting Parties' Joint Motion for Preliminary Settlement Approval in the case captioned SHARON ROZEBOOM, ANTHONY LAVALLEY, BROOKE ALCANTAR, MARY BILSKI, MATTHEW BRESLIN, MICHAEL BRODSKY, KATHY BUCKLEY, GLENN COHEN, TERESA DOAN, JOAN DURANTE, CHRISTIAN GAVILANES, MICHAEL LAGOY, LAURA LAKOWSKI, THOMAS LOBELLO, KAYODE LOTT, THOMAS MAIER, JULIUS MALEK, TINA NESBITT, NELSON ORTEGA, MARK ROHAN, RODNEY ROSS, TRENT APPROVAL OF SETTLEMENT RUSSELL, SABINA SCHOEN, STEPHEN SHRADER, KATHLEEN SUCHAN, ROBERTA SUCHAN, ROBERT TOWNSEL, DOMINICK VITALE, WARREN INDIVIDUALLY AND/OR ON BEHALF OF ALL OTHER similarly situated individuals, Plaintiffs, v. DIETZ & WATSON, INC., Defendant. Case No. 2:17-cv-01266-RAJ. (W.D. Wash.). The Parties' Settlement Agreement is preliminarily approved as fair, reasonable, and adequate based on consideration of the criteria set forth in Fed. R. Civ. P. 23(e)(2) and relevant case law. For settlement purposes only, the following Rule 23 California Settlement Class is certified pursuant to Fed. R. Civ. P. 23, pending final approval of the settlement: All individuals who are or were employed by Defendant in California as Merchandisers, also referred to as Sales Merchandisers, at any time during the period from August 21, 2013 to December 3, 2018. The Court finds that the prerequisites of Fed. R. Civ. P. 23(a) and (b)(3) have been satisfied for the Rule 23 California Settlement Class for settlement purposes only. Nichols Kaster, PLLP is appointed as Class Counsel. Nichols Kaster, PLLP is appointed as the settlement administrator to disseminate and process the Notices. Plaintiff Brook Alcantar is appointed as the Rule 23 California Settlement Class Representative. JND Legal Administration is appointed the settlement administrator to process and disseminate the settlement funds. The form, content, and distribution method of the parties' proposed FLSA Notice, Rule 23 Notice, and FLSA and Rule 23 Notice is approved. The Court finds that the notice procedure set forth in the Settlement Agreement and its exhibits provides the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort, and complies with the requirements of Fed. R. Civ. P. 23(c)(2) and the requirements of due process. The parties shall file their Motion for Final Approval at least 14 days before the Final Approval Hearing. Class Counsel shall file their motion for Attorneys' Fees, Costs, and Service Awards to the Class Representatives at least 14 days before the Final Approval Hearing. A full-text copy of the District Court's January 31, 2018 Order is available at https://tinyurl.com/ya2nvn62 from Leagle.com. Sharon Rozeboom, Anthony Lavalley, individually and on behalf of other similarly situated individuals, Brooke Alcantar, Mary Bilski, Matthew Breslin, Michael Brodsky, Kathy Buckley, Glenn Cohen, Teresa Doan, Joan Durante, Christian Gavilanes, Michael Lagoy, Laura Lakowski, Thomas Lobello, Kayode Lott, Thomas Maier, Julius Malek, Tina Nesbitt, Nelson Ortega, Mark Rohan, Rodney Ross, Trent Russell, Sabina Schoen, Stephen Shrader, Kathleen Suchan, Roberta Suchan, Robert Townsel, Dominick Vitale & Ruth Warren, Individual and/or on behalf of all other similarly situated individuals, Plaintiffs, represented by Caroline E. Bressman -- cbressman@nka.com -- NICHOLS KASTER, PLLP, pro hac vice, Rebekah L. Bailey -- bailey@nka.com -- NICHOLS KASTER, PLLP, pro hac vice, Reena I. Desai -- rdesai@nka.com -- NICHOLS KASTER, PLLP, pro hac vice & Toby James Marshall -- tmarshall@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC. Dietz & Watson Inc, Defendant, represented by Breanne Sheetz Martell -- bsmartell@littler.com -- LITTLER MENDELSON. DIRECT ENERGY: 2nd Cir. Affirms Dismissal of G. Richards' Suit -------------------------------------------------------------- The United States Court of Appeals, Second Circuit, issued an Opinion affirming the District Court's judgment granting Defendant’s Summary Judgment in the case captioned GARY W. RICHARDS, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. DIRECT ENERGY SERVICES, LLC, Defendant-Appellee. No. 17-1003-cv. (2nd Cir.). The Plaintiff appeal from the district court’s dismissed of several of his claims and granted summary judgment to Direct Energy as to the rest. Plaintiff-Appellant Gary W. Richards entered into an electricity contract with Defendant-Appellee Direct Energy Services, LLC (Direct Energy). The contract provided that, for the first twelve months, Direct Energy would guarantee Richards a fixed electricity rate that was 10% below the state-approved rate. But if Richards did not leave the contract at the end of that year, Direct Energy would begin charging him a new variable rate. The variable rate, according to the contract, would be set on a month to month basis according to Direct Energy's discretion and would reflect business and market conditions.Richards was free to terminate the contract at any time without paying a penalty. After twelve months on the discounted fixed rate plan, Richards began paying the variable rate. During this time, the variable rate was two cents more per kilowatt hour (kWh) than the state-approved rate. Richards switched electricity providers after fifteen months with Direct Energy (twelve on the discounted fixed rate, three on the variable rate), complaining that the variable rate was set too high. He then sued Direct Energy for breach of contract, deceptive and unfair trade practices, and unjust enrichment, and also sought to represent a class of all Direct Energy customers who paid the variable rate in Connecticut and Massachusetts. The district court dismissed Richards's Massachusetts state law and Connecticut unjust enrichment claims. Because Richards is a Connecticut resident who was injured in Connecticut and not Massachusetts, the court concluded that Richards lacked Article III standing to bring an unfair and deceptive trade practices claim under Massachusetts law. Richards also failed to state a claim for unjust enrichment because a plaintiff cannot plead a claim of unjust enrichment if he also pleads the existence of an express contract, as Richards had. The district court granted summary judgment to Direct Energy on Richards's remaining claims. Direct Energy was entitled to summary judgment on Richards's contract claim, the district court concluded, because Richards had not put forth sufficient evidence to create a material factual dispute about Direct Energy's bad faith, as required for his claim based on an alleged breach of the covenant of good faith and fair dealing. The district court also granted summary judgment to Direct Energy on Richards's unfair and deceptive trade practices claims under Connecticut law. Richards had argued that the Evergreen clause was deceptive because a reasonable consumer would interpret it to mean that Direct Energy would charge consumers its procurement costs, plus a fixed profit margin. The district court disagreed and held that the clause plainly gave Direct Energy discretion to set a profit margin of its choosing when determining variable rates. On appeal, Richards challenges the district court's grant of summary judgment to Direct Energy on his contract and Connecticut unfair and deceptive trade practices claims and dismissal of his unjust enrichment and Massachusetts unfair trade practices claims. Summary judgment is appropriate only if it can be established `that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Richards argues that Direct Energy breached its contract with him because it violated the implied covenant of good faith and fair dealing. Under Connecticut law, the implied covenant attaches to every contract and requires that neither party do anything that will injure the right of the other to receive the benefits of the agreement. To establish a breach of the implied covenant, the plaintiff must also show that the defendants' allegedly wrongful acts were taken in bad faith. Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive. Richards's contention that Direct Energy breached the implied covenant of good faith and fair dealing ultimately rests on his interpretation of the Evergreen clause. Again, the clause states: "After the Initial Term and during the Renewal Period, the rate for electricity will be variable each month at Direct Energy's discretion. The rate may be higher or lower each month based upon business and market conditions." In Richards's view, a reasonable consumer would understand this contract language to mean that the variable rate would fluctuate with Direct Energy's procurement costs. And because the variable rate stayed constant while procurement costs fluctuated from the winter of 2013-2014 through August 2015, Direct Energy ignored the language of the contract. Richards contends that, at minimum, his two experts attested that a reasonable consumer would interpret the Evergreen clause this way, which raises a plausible question of fact as to the clause's appropriate interpretation. He also maintains that Direct Energy acted in bad faith because Direct Energy set its variable rates too high, and lured new customers into enrolling by offering low fixed teaser rates for a set period of time. For the following reasons, the Court disagrees. Direct Energy did not evade the contract's spirit or frustrate Richards's justified expectations. The Evergreen clause states that Direct Energy had discretion to set the variable rate based upon business and market conditions. The record reflects that Direct Energy set the variable rate to achieve a target profit margin, match competitors' prices, and reduce customer losses, among other objectives. As a matter of plain meaning, these sorts of considerations constitute business and market conditions. The Evergreen clause in no way states or implies that such considerations are improper, nor does it suggest that the variable rate bears a direct relationship to Direct Energy's procurement costs. Richards's experts' testimony adds nothing to his breach of contract claim. These experts opined only on what factors the variable rate should reflect, in their view, while declining to offer an opinion on how the Evergreen clause should be interpreted. And the experts' interpretation of the Evergreen clause would be irrelevant even if they had opined on its legal meaning because the construction of unambiguous contract terms is strictly a judicial function. Courts across the country have thus rightly dismissed arguments like Richards's even at the pleadings phase. The Court therefore affirms the district court's grant of summary judgment to Direct Energy on Richards's contract claim. The Connecticut Unfair Trade Practices Act (CUTPA) prohibits unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. Under CUTPA, unfair methods of competition, unfair acts and deceptive acts are distinct categories of wrongful conduct. Richards argues that Direct Energy's variable rate pricing was (1) deceptive, (2) a per se violation of CUTPA, and (3) unfair. Richards's CUTPA claims are almost entirely duplicative of his contract claim. They are also without merit, and the Court affirm the district court's grant of summary judgment as to these claims. An act or practice is deceptive under CUTPA if the defendant makes a material representation or omission likely to mislead consumers who interpret the message reasonably under the circumstances. The deception standard is objective in nature and a representation is deceptive only if it is likely to mislead rather than merely has the tendency or capacity' to do so. Richards's deception claim is identical to his contract claim. He contends that reasonable consumers would likely interpret the Evergreen clause to mean that the variable rate would reflect the costs of procuring power plus an appropriate margin to cover the legitimate costs and risks of supplying variable rate customers. But as explained above, the contract unambiguously allowed Direct Energy to set the variable rate the way it did. Richards is also wrong, for the same reasons given above, when he claims that his experts' views about the Evergreen clause raise a question of fact on this issue. Slapping the phrase reasonable consumer into his argument does not change our earlier analysis in any way. Accepting Richards's argument to the contrary would mean, in effect, that if Direct Energy wished to retain the discretion in a contract to set its variable rate based on a range of business and market conditions, it was required to disclose every factor influencing that variable rate. But CUTPA imposes no such duty. Richards's argument that Direct Energy's variable rate pricing constituted a per se violation of CUTPA is equally unavailing. As discussed above, Connecticut requires that each contract for electric generation services contain all material terms of the agreement, including a clear and conspicuous statement explaining the rates that each consumer will be paying and the circumstances under which the rates may change. An electric company that violates this provision commits a per se unfair or deceptive trade practice under CUTPA. Richards contends that Direct Energy violated Section 16-245o(j) because it misrepresented that it set its variable rate based on `business and market conditions' when it did not. But Richards assumes, yet again, that the Evergreen clause misrepresented Direct Energy's pricing practices. The Court have already rejected that view twice in this opinion. The Court thus affirms the district court's grant of summary judgment on Richards's per se CUTPA claim. Richards's claim that Direct Energy's variable rate pricing constituted an unfair trade practice under CUTPA is also without merit. A trade practice is unfair under CUTPA if it (1) falls within the penumbra of some common law, statutory, or other established concept of unfairness (2) is immoral, unethical, oppressive, or unscrupulous or (3) causes substantial injury to consumers. The substantial injury to consumers prong covers conduct that is substantial is not outweighed by any countervailing benefits and causes an injury that consumers themselves could not reasonably have avoided. Richards's contentions do not come close to meeting this standard. Run-of-the-mill statutory violations, torts, and contract breaches do not constitute unfair trade practices. The crux of Richards's unfairness theory is, once more, his contention that Direct Energy breached the contract by failing to tie its variable rate to business and market conditions, which he interprets to mean procurement costs. But a simple contract breach is not sufficient to establish a violation of CUTPA, particularly where the count alleging CUTPA simply incorporates by reference the breach of contract claim. Richards argues that his unfairness claim extends further and does not turn on his contract claim alone. Specifically, he objects to Direct Energy's supposed practice of (1) luring consumers with teaser-rates and later (2) gouging them with variable rates that (3) consumers do not monitor. In his view, these practices raise a question of fact as to whether Direct Energy's pricing strategy was unfair. We consider each component of his argument in turn. First, offering a teaser rate is not against public policy, unethical, or substantially injurious on its own, especially when, as here, consumers can cancel the contract whenever they like without paying any fee. Richards himself is a case in point as to why this is so: He chose to sign with Direct Energy because it offered the best fixed rate available. That saved him more than $100 over the Standard Service Rate during the first twelve months of his contract with Direct Energy hardly a substantial injury. Second, Richards's contention that the variable rates were so high that "no rational consumer" would voluntarily sign a variable rate contract, is irrelevant for at least two reasons. First, he did not sign a variable rate contract; he signed a fixed rate contract that rolled over into a variable rate after a set time. As already noted, this at first saved him money, as compared to the Standard Service Rate, and ultimately cost him only about $1.67 per month above the Standard Service Rate during his time with Direct Energy. And regardless, charging high prices does not on its own give rise to a CUTPA violation. Richards's unfair practices claim thus ultimately depends on his assertion that charging a variable rate that "consumers [do] not monitor" is a violation of CUTPA. But he supplies no legal authority for this proposition. Presumably, what bothers Richards is that many Direct Energy consumers pay the variable rate when their initial fixed-rate periods expire, even though leaving their contracts would likely save them money. All sorts of companies design their business strategies with the expectation that consumers act this way. Many magazines and gyms, for example, offer initial discounts on subscriptions and membership on the assumption that they can make up the loss if customers either decide they like the product or, crucially, forget to cancel. And Connecticut law is clear that widespread business practices that are consistent with common business norms" do not violate CUTPA. It is therefore clear to us that Direct Energy's pricing strategy during the term of its relationship with Richards was not against public policy, immoral, or substantially injurious. The Court therefore conclude that Richards's CUTPA claim is without merit and that the district court's partial grant of summary judgment as to this claim should be affirmed. Richards next challenges the district court's dismissal of his unjust enrichment and Massachusetts state law claims. The Court review de novo a district court's dismissal on the pleadings, accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. The district court held that Richards failed to state a claim for unjust enrichment because he signed a contract with Direct Energy. Richards contends that this was error. He agrees with the district court that he and Direct Energy had an enforceable contract in principle. But he argues in the alternative that if this contract did not prevent Direct Energy's predatory conduct, then the contract was illusory, and he is entitled to recovery under unjust enrichment. The Court disagrees. The contract was not illusory. The implied covenant of good faith and fair dealing obliged Direct Energy to act in good faith when it set the variable rate, and good faith is enough to avoid the finding of an illusory promise. Because Richards and Direct Energy had a binding contract, Richards could not plead an unjust enrichment claim. We therefore affirm the district court on this issue. The Court turns to Richards's unfair trade practices claims under Massachusetts law. The district court dismissed these claims for lack of Article III standing because Richards was not injured in Massachusetts. This was error. A plaintiff has Article III standing if he suffered (1) an injury (2) caused by the defendant that (3) would be redressed by a favorable judicial decision. There is no question that Richards satisfies this standard: he was (1) charged money (2) by Direct Energy, and (3) seeks recompense for this charge. To be sure, whether a statute grants a plaintiff a cause of action will often turn on where the tortious conduct occurred. The Court still affirms the district court's dismissal of Richards's Massachusetts claims, however, because dismissal was proper under Federal Rule of Civil Procedure 12(b)(6). Here, Richards failed to state a claim because Massachusetts does not give plaintiffs a cause of action for unfair or deceptive acts that occur outside Massachusetts. Beyond this statutory hurdle, the United States Constitution would also bar Massachusetts from regulating, via consumer protection law, the rates that Direct Energy charged consumers in Connecticut. The Court have no occasion to address whether Article III would have prevented Richards from representing a class of plaintiffs with claims under Massachusetts law. The Court therefore affirms the district court's partial dismissal as to the Massachusetts claims. The judgment of the district court is affirmed. A full-text copy of the Second Circuit's February 4, 2018 Opinion is available at https://tinyurl.com/yyoxrops from Leagle.com. ROBERT A. IZARD -- rizard@ikrlaw.com -- (Craig A. Raabe -- craabe@ikrlaw.com -- on the brief), Izard, Kindall & Raabe LLP, West Hartford, CT, for Gary W. Richards, for Plaintiff-Appellant. MICHAEL D. MATTHEWS -- matt.matthews@mhllp.com -- (James M. Chambers -- james.chambers@mhllp.com -- Hutson B. Smelley -- hutson.smelley@mhllp.com -- Robert P. Debelak III -- bobby.debelak@mhllp.com -- on the brief), McDowell & Hetherington LLP, Houston, TX, for Direct Energy Services, LLC, for Defendant-Appellant. DONUTS CORP: Court Denies Dismissal Bid of Tapia FLSA Suit ---------------------------------------------------------- The United States District Court for the District of New Jersey issued an Opinion denying Defendant's Motion to Dismiss in the case captioned Re: Tapia, v. Glaze Donuts Corp., et al. Civil Action No. 18-8517 (SDW) (LDW). (D.N.J.). Before this Court is Defendants Glaze Donuts Corporation, Glaze Artisan Donuts, LLC, Glaze West Caldwell, LLC, and Julie Hazou's Motion to Dismiss Plaintiff Efrain Tapia's Complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff's Complaint Sufficiently States a Claim Upon Which Relief Can be Granted The Defendants employed the Plaintiff as a baker, donut maker and cleaner. During that time, the Plaintiff worked approximately ten hours a day, six to seven days a week and was paid $600.00 week, but was not paid overtime and was also not paid wages due to him. The Plaintiff filed suit in this Court on behalf of himself and others similarly situated alleging that the Defendants' failure to pay him overtime violated the Fair Labor Standards Act (FLSA) and the New Jersey Wage and Hour Law (NJWHL) and their failure to pay him wages violated the New Jersey Wage Payment Law (NJWPL). Although the Plaintiff's pleadings are general in nature, they contain allegations that, during his employment, he consistently worked in excess of sixty hours per week and was not properly paid overtime and regular wages as required by federal and state law. The Plaintiff identifies the entities and persons responsible for his employment, his weekly hours, the dates he was employed, his weekly pay, and the damages he alleges he suffered. If true, the facts as alleged would entitle the Plaintiff to relief. In addition, the Complaint is sufficient to put the Defendants on notice of the Plaintiff's claims and to permit them to defend themselves against those claims. Therefore, the Defendants' motion to dismiss will be denied. Accordingly, the Defendants' Motion to Dismiss is denied. A full-text copy of the District Court's January 31, 2018 Opinion is available at https://tinyurl.com/yb46qcx6 from Leagle.com. EFRAIN TAPIA, Individually and on behalf of all others similarly situated, Plaintiff, represented by ROMAN M. AVSHALUMOV , HELEN DALTON & ASSOCIATES, P.C. GLAZE DONUTS CORPORATION, GLAZE ARTISAN DONUTS, LLC., GLAZE WEST CALDWELL, LLC. & JULE HAZOU, Defendants, represented by STEPHEN R. BOSIN. DYNAMIC LEDGER: Briefing Schedule Set in Tezos Securities Suit -------------------------------------------------------------- The United States District Court for the Northern District of California issued an Order setting briefing schedule and continuing hearing on Motion for Class Certification in the case captioned IN RE TEZOS SECURITIES LITIGATION. This document relates to: ALL ACTIONS. Master No. 17-cv-06779-RS. (N.D. Cal.). In light of the recent addition of named plaintiffs, the proposed withdrawal of lead plaintiff Anvari, the pendency of the Substitution Motion, and the ongoing nature of discovery that the parties have served, the parties believe that it would be appropriate to continue the hearing on the Class Certification Motion and to set a briefing schedule that will allow the parties adequate time to complete relevant discovery and to brief relevant issues in advance of the hearing date and The Defendants shall file their opposition to the Class Certification Motion on or before May 15, 2019. The Plaintiffs shall file their reply in support of the Class Certification Motion on or before July 15, 2019. The hearing on the Class Certification Motion shall be continued to July 31, 2019, at 1:30 p.m., or such other date as is convenient for the Court. Except as expressly set forth herein, nothing in this stipulation shall be construed as waiving any of the parties' rights, including in connection with the Substitution Motion. A full-text copy of the District Court's January 31, 2018 Order is available at https://tinyurl.com/y6cdecnh from Leagle.com. GGCC, LLC, an Illinois Limited Liability Company, individually and on behalf of all others similarly situated, Plaintiff, represented by William Richard Restis, The Restis Law Firm, P.C., Bruce Daniel Greenberg -- bgreenberg@litedepalma.com -- Lite Depalma Greenberg LLC, pro hac vice, Jeremy Nash -- jnash@litedepalma.com -- Lite DePalma Greenberg, LLC, pro hac vice & Joseph J. DePalma -- jdepalma@litedepalma.com -- Lite DePalma Greenberg, LLC, pro hac vice. Dynamic Ledger Solutions, Inc., a Delaware Corporation, Defendant, represented by Brian E. Klein -- bklein@bakermarquart.com -- Baker Marquart LLP, Patrick Edward Gibbs -- pgibbs@cooley.com -- Cooley LLP, Donald Ross Pepperman -- dpepperman@bakermarquart.com -- Baker Marquart LLP, Jeffrey Michael Kaban -- jkaban@cooley.com -- Cooley LLP, Jessica Valenzuela Santamaria -- jvs@cooley.com -- Cooley LLP, Jessie A.R. Simpson Lagoy -- jsimpsonlagoy@cooley.com -- Cooley LLP, Samantha Anne Kirby -- skirby@cooley.com -- Cooley LLP, Scott Matthew Malzahn -- smalzahn@bakermarquart.com -- Baker Marquart LLP & Teresa L. Huggins -- thuggins@bakermarqaurt.com -- Baker Marquart LLP. EMPIRE FINANCIAL: Monteverde Investigates SmartFinancial Sale ------------------------------------------------------------- Juan Monteverde, founder and managing partner at Monteverde & Associates PC, a national securities firm headquartered at the Empire State Building in New York City, is investigating: Entegra Financial Corp. (ENFC) regarding its sale to SmartFinancial, Inc. for 1.215 shares in SmartFinancial for each share of Entegra. Click here for more information: https://www.monteverdelaw.com/case/entegra-financial-corp. It is free and there is no cost or obligation to you. Kinderhook Bank Corp. (NUBK) regarding its sale to Community Bank System, Inc. for $62 per share. Click here for more information: https://www.monteverdelaw.com/case/kinderhook-bank-corp. It is free and there is no cost or obligation to you. First Data Corporation (FDC) regarding its sale to Fiserv, Inc. for 0.303 shares of Fiserv for each share of First Data. Click here for more information: https://www.monteverdelaw.com/case/first-data-corporation. It is free and there is no cost or obligation to you. TCF Financial Corporation (TCF) for its sale to Chemical Financial Corporation for 0.5081 shares in Chemical for each TCF Financial share. Click here for more information: https://www.monteverdelaw.com/case/tcf-financial-corporation. It is free and there is no cost or obligation to you. UQM Technologies, Inc. (UQM) for its sale to Danfoss Power Solutions for $1.71 per share. Click here for more information: https://https://www.monteverdelaw.com/case/uqm-technologies-inc. It is free and there is no cost or obligation to you. Versum Materials, Inc. (VSM) for its sale to Entegris, Inc. for 1.120 shares of Entegris for each share of Versum. Click here for more information: https://www.monteverdelaw.com/case/versum-materials-inc. It is free and there is no cost or obligation to you. Reliance Bancshares Inc. (RLBS) regarding its merger with Simmons First National Corporation. Click here for more information: https://www.monteverdelaw.com/case/reliance-bancshares-inc. It is free and there is no cost or obligation to you. Monteverde & Associates PC is a national class action securities and consumer litigation law firm that has recovered millions of dollars and iscommitted to protecting shareholders and consumers from corporate wrongdoing. Monteverde & Associates lawyers have significant experience litigating Mergers & Acquisitions and Securities Class Actions, whereby they protect investors by recovering money and remedying corporate misconduct. Mr. Monteverde, who leads the legal team at the firm, has been recognized by Super Lawyers as a Rising Star in Securities Litigation in 2013, 2017 and 2018, an award given to less than 2.5% of attorneys in a particular field. He has also been selected by Martindale-Hubbell as a 2017 and 2018 Top Rated Lawyer. If you own common stock of listed companies and wish to obtain additional information and protect your investments free of charge, please visit our website or contact Juan E. Monteverde, Esq. either via e-mail at jmonteverde@monteverdelaw.com or by telephone at (212) 971-1341. [GN] FRONTLINE ASSET: Lebovits Asserts Breach of FDCPA in New York ------------------------------------------------------------- A class action lawsuit has been filed against Frontline Asset Strategies, LLC. The case is styled as Josef Lebovits, on behalf of himself and all others similarly situated, Plaintiff v. Frontline Asset Strategies, LLC, Defendant, Case No. 1:19-cv-01636 (S.D. N.Y., February 21, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Frontline Asset Strategies is a debt collection agency out of Minnesota.[BN] The Plaintiff is represented by: Daniel Chaim Cohen, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (929) 575-4175 Fax: (929) 575-4195 Email: dan@cml.legal FYRE MEDIA: Ja Rule Apologizes Over Fyre Festival Debacle --------------------------------------------------------- Scott Baumgartner, writing for Click2Houston, reports that Ja Rule is ready for the heat he's receiving for his participation in the now infamous Fyre Festival. Last month, both Netflix and Hulu released documentaries exploring the Fyre Festival debacle where droves were stranded on a Bahamian island with lackluster food and meager accommodations in April 2017 at what was billed as the mother of all destination festivals. The rapper was among its organizers and he receives a lot of flak in both docs for his part in the catastrophe, which was tweeted, live-streamed and photographed by its young attendees. But on Feb. 1, when taking the stage in New Jersey, the rapper decided to clear the air with his fans. He raised a middle finger to those in attendance and asked whose seen the new documentaries and suggested, "You might be a little mad at me." That's when he lead the crowd in a chant where everyone cursed him out. "I want y'all to repeat after me," he said, middle finger still in the air. "Get it out of your f**king system cause we ain't gonna do this s**t for the rest of the year! So get your motherf**king middle fingers up." Then he shouted, "Let me hear you say 'F**k you, Ja Rule!" Attendees joined him the call-and-response three times before moving on. When the docs dropped in January, the rapper had several exchanges on Twitter defending himself. "I feel bad for those ppl . . . but I did not and would never scam ANYONE . . . period!!!" he tweeted. "And I don't care if anyone sympathizes with me or not those are the FACTS!!!" Soon after horrifying details of the failed music festival came to light in April of 2017, Ja Rule apologized to would-be festival goers and stressed his innocence in the fall-out. "We are working right now on getting everyone out of the island SAFE that is my immediate concern," he wrote on Instagram, declaring that the event was "not a scam." "I don't know how everything went so left but I'm working to make it right by making sure everyone is refunded." "I truly apologize as this NOT MY FAULT . . . . but I'm taking responsibility. I'm deeply sorry to everyone who was inconvenienced by this." Ja Rule and his co-founder Billy McFarland were slammed with a $100 million class action lawsuit in 2017, for which the rapper denies liability. Mr. MacFarland is currently serving a six-year sentence in federal prison after pleading guilty to two counts of wire fraud and faking documents to secure investors in his company. [GN] HONDA MOTORS: Faces Various Class Actions in U.S. Over Airbags -------------------------------------------------------------- Taipei Times reports that Japanese automaker Honda Motor Co's fiscal third-quarter profit fell 71 percent from a year earlier as growing incentives, an unfavorable exchange rate and flat vehicle sales offset gains from cost cuts, the company said on Feb. 1. Tokyo-based Honda's profit totaled JPY168 billion (US$1.53 billion) from October to December last year, down from JPY570.3 billion a year earlier. Quarterly sales were unchanged at JPY3.9 trillion. An unfavorable exchange rate to Asian and other global currencies dented profitability, Honda said. Japanese exporters such as Honda are vulnerable to such fluctuations. Quality expenses that also helped bring down profits for the latest quarter were not directly related to the massive global recall of Takata Corp air bags that hurt Honda in past years, the firm said. Inflators used in the airbags that were recalled can explode with too much force. At least 23 people have died from the problem worldwide and hundreds have been injured. Honda, which makes the Accord sedan, Odyssey minvan and Asimo robot, said it is facing various class-action lawsuits in the US related to the air bags. Honda's settlements totaled JPY53.8 billion for April to December, and it could face more such expenses, the company said. Motorcycle sales improved in Vietnam and it also recorded better sales in its financial services business, Honda said. Honda raised its profit forecast for this fiscal year, which ends on March 31, by JPY20 billion from an earlier projection, to JPY695 billion. That is down 34 percent from the previous fiscal year. [GN] HP INC: Website not Accessible to Blind People, Kiler Says ---------------------------------------------------------- MARION KILER, on behalf of herself and all others similarly situated, the Plaintiff, vs. HP INC., the Defendant, Case No. 1:19-cv-01416 (E.D.N.Y., Feb. 14, 2019), seeks to put an end to systemic civil rights violations committed by the Defendant against the blind in New York State and across the United States. According to the complaint, the Defendant is denying blind individuals throughout the United States equal access to the goods and services the Defendant provides to its non-disabled customers through www.store.hp.com The Website provides to the public a wide array of the goods, services, and other opportunities offered by the Defendant. Yet, the Website contains access barriers that make it difficult, if not impossible, for blind customers to use the Website. The Defendant thus excludes the blind from the full and equal participation in the growing Internet economy that is a fundamental part of the common marketplace and daily living. In the wave of technological advances in recent years, assistive computer technology is becoming an increasingly prominent part of everyday life, allowing blind people to fully and independently access a variety of services, including shopping and purchasing products online. The Plaintiff is a blind individual. She brings this civil rights class action against Defendant for failing to design, construct, maintain, and/or own a website that is fully accessible to, and independently usable by, blind people. Specifically, the Website has many access barriers preventing blind people from independently navigating, browsing, and purchasing products on the Website using assistive computer technology. The Plaintiff uses the terms "blind person" or "blind people" and "the blind" to refer to all persons with visual impairments who meet the legal definition of blindness in that they have a visual acuity with correction of less than or equal to 20/200. Some blind people who meet this definition have limited vision. Others have no vision. Approximately 8.1 million people in the United States are visually impaired, including 2.0 million who are blind. There are approximately 400,000 visually impaired persons in New York State. Many blind people enjoy using the Internet just as sighted people do. The lack of an accessible website means that blind people are excluded from the opportunity to shop and purchase goods and from independently navigating and using the Website. Despite readily available accessible technology, such as the technology in use at Americans with Disabilities: 2010 Report, U.S. Census Bureau Reports American Foundation for the Blind, State-Specific Statistical Information, January 2015 other heavily trafficked websites, which makes use of alternative text, accessible forms, descriptive links, and resizable text, and limits the usage of tables and JavaScript, Defendant has chosen to rely on a predominantly visual interface. Defendant's sighted customers can independently browse and purchase products without the assistance of others. However, blind people must rely on sighted companions to assist them in browsing and purchasing products on the Website. By failing to make the Website accessible to blind persons, Defendant is violating basic equal access requirements under both state and federal law, the lawsuit says. Hewlett-Packard Company was an American multinational information technology company headquartered in Palo Alto, California.[BN] Attorneys for the Plaintiff and the Class: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Telephone: 212-465-1188 Facsimile: 212-465-11 HYUNDAI MOTOR: Faces Class Action Over Elantra Piston Problems -------------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Hyundai Elantra class action lawsuit alleges the cars have piston problems that cause knocking engines to eventually fail. However, Hyundai says the arguments set forth by Elantra owners don't merit a lawsuit, much less a class action. According to the plaintiffs, the clicking noise occurs in 2011-2016 Elantras equipped with 1.8-liter Nu engines that suffer from oil sludge that can cause owners to pay up to $10,000 to replace the engines. Plaintiff Elizabeth Brown purchased a new 2013 Hyundai Elantra Limited in August 2013 from New Jersey Hyundai dealer Avenel Sansone Auto Group. The plaintiff claims she noticed a clicking/ticking noise in October 2017 that seemed to be coming from the engine when she started the car. She didn't take the car to a dealer but says about a week later her son was driving when he heard a loud pop before the engine failed. The Elantra had about 64,000 miles on it when it was towed to Sansone for repairs. According to the class action lawsuit, the dealership found the engine was "full of oil sludge, which was caused by her failure to timely change the oil in her vehicle." Ms. Brown alleges the Elantra is covered by a 10-year/100,000-mile powertrain warranty, but Hyunda argues the warranty has conditions that customers must meet. In this case, the plaintiff was told the warranty requires proof of abiding by the maintenance schedule, but Hyundai and the dealership determined the Elantra wasn't covered "due to inadequate maintenance." Plaintiff Thomas Pearson purchased a 2015 Hyundai Elantra in December 2014 and alleges his engine "catastrophically failed" in July 2018. Hyundai says the plaintiff doesn't allege the Elantra suffered any symptoms related to piston problems including any clicking or ticking noise. The car had 76,000 miles on it when the plaintiff was told he had exceeded the mileage limit under the new vehicle limited warranty. However, the powertrain warranty was still good so Hyundai replaced the engine under warranty. In its motion to dismiss the class action, Hyundai says the only "harm" claimed by the plaintiff is that Hyundai should have reimbursed him in full for rental car fees. According to the automaker, the plaintiff has no claims at all because Hyundai replaced his engine under warranty, leaving his claims moot. Plaintiff Janeshia Martin purchased a used 2015 Hyundai Elantra in May 2015 from a non-Hyundai dealership, but in 2018 the engine allegedly failed on two occasions. Hyundai notes she never mentioned any symptoms of alleged piston problems but was told the engine would need to be replaced due to "metal shavings in the oil." The dealership said because the Elantra had 74,000 miles on the odometer the engine replacement wouldn't be covered under the new vehicle limited warranty. In addition, the powertrain warranty was no good because she purchased the car used. The plaintiff claims a "Hyundai dealer" replaced her engine for $3,000, but Hyundai notes the plaintiff never says she had to pay for the replacement. Plaintiff Nicholas Moore purchased a used 2013 Hyundai Elantra in December 2014 from a non-Hyundai dealer, but more than two years after he bought the car it started making a ticking noise. Hyundai says the plaintiff claims "Hyundai denied his warranty claim," but the plaintiff didn't say why. The automaker says the new vehicle warranty was no good because the car had too many miles, and the powertrain warranty wasn't in force because he purchased a used Elantra. According to the class action lawsuit, Hyundai must have known about the alleged engine problems based on complaints submitted to the National Highway Traffic Safety Administration (NHTSA). However, Hyundai argues only two of 24 complaints predate Brown's purchase of her vehicle, only "three predate Pearson's and Moore's purchases of their vehicles, and only five predate Martin's purchase of her vehicle." Some of those complaints never mention anything about a clicking or ticking noise and several complaints specifically say Hyundai "was not notified of the failure." Hyundai further argues the plaintiffs failed to plead the most basic elements of fraud because they have not identified a single misstatement by Hyundai that prompted their decisions to buy the cars. Hyundai also says claims about denied warranty coverage are baseless because none of the plaintiffs "allege that they performed regular (or any) maintenance on their vehicles, nor do they allege that they retained (or ever had) copies of any maintenance records." Hyundai questions how the plaintiffs would even know alleged piston problems caused failed engines considering none of the customers claim they maintained their vehicles. The Hyundai Elantra class action lawsuit was filed in the U.S. District Court for the District of New Jersey, Newark Division - Brown, et al., v. Hyundai Motor America, et al. The plaintiffs are represented by Sauder Schelkopf LLC, Migliaccio & Rathod LLP, and Levin Sedran & Berman. CarComplaints.com has engine complaints from Elantra drivers: Hyundai Elantra - 2011 / 2012 / 2013 / 2014 / 2015 / 2016 [GN] INSTACART: Delivery Workers Don't Always Get Customer Tips ---------------------------------------------------------- Olivia Solon, writing for NBC News, reports that tips paid to workers at on-demand delivery services including Instacart and Doordash are being used to substitute a portion of workers' wages rather than directly boosting their income, according to online forums dedicated to gig economy workers, and reports to worker rights groups. While the companies insist they have been transparent with their workers about the pay structure, consumer protection groups have criticized the practice as deceptive to consumers and unfair to workers. "Any consumer in the United States thinks that the money they are paying in a tip is 100 percent on top of anything else the service provider might be paid," said Carmen Balber, executive director of Consumer Watchdog, a nonprofit that advocates for consumers. Towards the end of 2018, Instacart started rolling out a new earnings structure that it claimed offered more transparency to its 70,000 contracted workers. Prior to the change, drivers would get a base rate plus a fixed fee for every item ordered and the tip would be added on top. Under the new payment system, the company calculates a "batch payment," which varies according to the nature of the items the "shopper" (contracted worker) must pick from the shelves and deliver. Shoppers would earn more if they had to carry five-gallon bottles of water versus a small bag of fruit and vegetables, for example. On top of the batch payment, the shopper is paid for mileage driven as well as small bonuses during peak hours. Instacart said it guarantees a minimum per-job payment of $10. If the total pay is under $10, Instacart will supplement the pay to hit $10. If the customer tips at checkout, that tip is used to supplement the batch payment to hit the $10 minimum. Only once the $10 minimum is reached does the tip amount start to boost the worker's take-home pay. Hundreds of workers have been posting screenshots and reports of their earnings through the on-demand apps to Reddit and other online forums, which appear to show the company using customer tips to subsidize workers' base pay. Some workers report that the new payment structure has reduced their earnings by 30 to 40 percent. In one case a shopper shared screenshots showing they received a "batch payment" of just $0.80 from Instacart because the customer had paid a $10 tip, bringing the total fee for the job to $10.80. When the driver queried why they hadn't earned more for the job, an Instacart community support representative responded, "The reason that your batch incentive was low for this particular order is because of the tip amount." Instacart told NBC News this was an extreme edge case and said that it would introduce a new $3 minimum batch payment to prevent this from happening in the future. Instacart's handling of tips and treatment of drivers is the subject of a class-action lawsuit filed in California's Superior Court on behalf of Los Angeles-based worker Sarah Lozano and other Instacart "shoppers." Instacart told NBC News it does not comment on pending litigation. The complaint alleges that Instacart "intentionally and maliciously misappropriated gratuities in order to pay plaintiff's wages even though Instacart maintained that 100 percent of customer tips went directly to shoppers. Based on this representation, Instacart knew customers would believe their tips were being given to shoppers in addition to wages, not to supplement wages entirely." Arns Law, the firm that filed the lawsuit, obtained a $4.6m settlement from Instacart in 2017 after filing another class action relating to worker compensation at the on-demand delivery startup. Instacart did not admit any wrongdoing, but agreed to change the way it explained fees to customers. Phoenix Di Corvo, a Seattle-based graphic designer and Instacart shopper, told NBC News that she saw a big drop in income when Instacart introduced a new pay structure in November 2018, as reported by Business Insider. Prior to November, Ms. Di Corvo said she would get an $8.75 base rate plus a fixed fee ($0.40) for each item ordered. Any tip added at checkout would be paid on top of that. A typical 12-item order would yield $13.55 before tip, she said. "Now you will see a 12-item order for $12-14, but $6 of that is the tip," she said, adding that she had to start working much longer hours to make up the shortfall. "Just imagine if I went to dinner and I got my bill and put my tip in and the restaurant said 'OK, we are now going into adjust Susan's pay for the day,'" Ms. Di Corvo said. "It's ridiculous!" It's a similar situation with Doordash, which updated its pay structure in late 2017. Drivers get a pay guarantee depending on the size and complexity of the delivery job. If that pay guarantee is $6 and the customer doesn't tip, Doordash pays the full fee to the courier. However, if the customer tips $5, the courier still only gets $6 and the portion that Doordash pays drops to just $1. Both companies insist that workers receive 100 percent of customer tips. "This is technically true, but it's not how people think about tips. A tip is supposed to be a supplement to a worker's pay, not a substitute," said Sage Wilson at Working Washington, a workers' organization that fights to improve labor standards and represents almost 2,000 Instacart shoppers. Both companies said that the payment structure helps to more fairly and consistently distribute customer tips to guarantee a certain level of earnings for drivers on every trip. "Since implementing this pay model more than a year ago, we've seen a significant increase in Dasher retention, percentage of on-time orders, and Dasher satisfaction," Doordash spokeswoman Becky Sosnov said. "Doordash technically doesn't 'steal' your tip, they give it to you," wrote one Doordash driver on Reddit earlier this month. "But they use it to subsidize what they pay out of pocket which is basically the same thing at the end of the day." "Since implementing this pay model more than a year ago, we've seen a significant increase in Dasher retention, percentage of on-time orders, and Dasher satisfaction," Doordash spokeswoman Becky Sosnov said. Kaylania Chapman, a former worker for both Instacart and Doordash, said she stopped working for these services after her income fell so significantly. She discovered her tips were being partially absorbed by the company after a regular Instacart customer asked her if she'd received a $10 tip and showed her the receipt for the order. Ms. Chapman had not received a significant boost to her pay from the tip. "I am very disappointed. To me that's not showing good company ethics at all," Ms. Chapman said. "I made really good money, but then they started to change the pay scale," she told NBC News. The workers are now calling on customers to either tip in cash or to add the tip only after the job is completed to ensure they are fairly paid. Working Washington launched an online petition demanding that Instacart stop the practice of what it describes as "tip theft." "We're constantly reviewing and evaluating feedback from our shopper community to ensure they're fairly compensated for the work they're doing on behalf of our customers," Instacart spokeswoman Natalia Montalvo said in a statement. "Last year, we introduced new earnings features designed to pay our shoppers more consistently for their time and effort while also keeping average shopper earnings the same." But not every on-demand delivery company treats tips in this way. UberEats asks customers to tip the driver only after the food has been delivered and the payment for the delivery has been taken. The company confirmed to NBC News that any tip paid at this point directly benefits the driver, and two UberEats drivers backed up that statement. [GN] INSTACART: Grocery Delivery Service Workers Demand Better Pay ------------------------------------------------------------- Lisa Fickenscher, writing for New York Post, reports that Instacart has a problem delivering to its workers. That message is growing on social media among a small army of the digital delivery service's workers who pick and pack groceries to customers' homes and offices. Thousands have signed petitions demanding better pay and treatment by the $7.6 billion unicorn, which has raised nearly $2 billion over the past seven years largely on the promise that it gives grocers a fighting chance to compete with Amazon. The complaints are mounting as Instacart faces the loss of its prize Whole Foods contract in December -- as Amazon takes control of Whole Foods' delivery services -- just as Instacart faces an onslaught of competition from such startups like Mercato, Jyve, which just raised $35 million, and Roadie, which inked a deal this month with Walmart. "There are at least a dozen alternatives to Instacart today compared with just a few years ago," Brittain Ladd, a digital consultant and former Amazon executive, told The Post. "And as retailers learn about the problems that Instacart is having with its own gig workers they may question their relationship with the company." After criticism over the past several months, including a shocking incident recently in which a driver was paid just 80 cents for a 69-minute grocery run, the company responded on Feb. 1 with a concession. Instacart introduced a $3 minimum for each job," to prevent some of the extreme edge cases we've seen recently," said Instacart's chief product officer, David Hahn, in a statement. That seemingly paltry move seemed to amp up workers' protests, which includes Change.org petitions with more than 2,400 signatures from mostly Instacart drivers complaining about increasingly heavier hauls -- like cases of water -- in which they receive the same compensation as lighter fare like potato chips. Others are focused on a change Instacart made late last year in how it compensates its hourly workers, which has resulted in them earning up to 40 percent less money. Under the old system, workers got a base rate for each job of about $10, depending on their market, plus 40 cents for each item they pick up, according to a petition with about 3,000 signatures sponsored by Working Washington, a worker advocacy group. The new system is inscrutable, they say, and relies on customers' tips for a big part of their compensation. Shoppers and drivers are promised a different amount for each job, including mileage reimbursement of 60 cents per mile as well as customer tips. The problem, say thousands of shoppers, is that when customers provide a tip in the app Instacart pays a lower base pay from its own coffers for the job, which is tantamount to "tip stealing," they say. Instacart told The Post that its shoppers earn more than $15 an hour and defended its new payment system as being "consistent with the practices of other on-demand delivery companies. We're deeply committed to fair compensation." Instacart shopper Michelle Eaton, of Palm Springs, Calif. disagrees. "I will never succeed at making even minimum wage working for Instacart because I cannot beat the company algorithms that are squarely set to make me fail," Eaton, a grad student, told The Post. She calculated Instacart paid her between $5 and $6 an hour when she subtracted the mileage reimbursement from her pay and factored in the costs of the unreimbursed miles she drove from one delivery job to the next. "A reimbursement is not pay," she said. It's not the first time the company has landed in hot water for labor issues. Instacart settled three class action lawsuits, including one for $4.6 million in 2017 over whether the company had the right to classify employees as independent contractors. "Instacart is building its business model on the assumption that this is legal," said Jahan Sagafi -- jsagafi@outtengolden.com -- a partner in Outten & Golden, which represented the workers in the $4.6 million case. "But it's not at all clear that they are independent contractors." [GN] JP MORGAN: Settles Rate Rigging Class Action for US$7MM ------------------------------------------------------- Sarah Danckert, writing for Sydney Morning Herald, reports that the big four banks are under pressure to settle a massive class action after US investment bank JPMorgan agreed to hand over millions to drop out of a case that alleges it and and a host of other banks rigged one of Australia's key interest rates. In another major blow for the big four banks ahead of the release of the final report of the banking royal commission on Feb. 4, JPMorgan has also agreed to hand over millions of pages of evidence detailing trades made by it and its competitors. JPMorgan will pay $US7,000,000 ($9.6 million) in cash to the consumers bringing the action led by well known US commodities trader, Richard "Prince of the pit" Dennis. The multi-billion pension fund Orange County Employees Fund is also preparing to join Mr Dennis as a plaintiff in the case. Mr Dennis is suing 17 international banks, including the big four Australian banks, for allegedly rigging the bank bill swap rate from 2003 onwards. Mr Dennis was a purchaser of products that were based on that rate and alleges he lost million from the rate rigging. The bank bill swap rate, or the BBSW, is one of the most important interest rates in the economy and helps set the interest rates on loans to large corporate entities. Westpac Banking Corporation, National Australia Bank, ANZ Banking Group and Commonwealth Bank were individually sued by the Australian Securities and Investments Commission which alleged each bank had rigged or attempted to rig the bank bill swap rate for their own financial benefit. NAB, ANZ, and CBA settled the case, with NAB and ANZ each handing over about $50 million and CBA $25 million after admitting to attempting to rig the rate. Westpac was later found to have engaged in unconscionable conduct for its alleged attempts at rate rigging. The Australian banks have been vigorously defending the New York class action. In a letter to the court in New York, lawyers for Mr Dennis and OCEF said the settlement was an "ice breaker" and included "non-monetary cooperation". "JPMorgan's documentary cooperation will include what the plaintiffs understand to be millions of pages of documents previously produced by JPMorgan to government investigators, as well as data relating to loans, trades, and other transactions involving the Australian bank bill swap reference rate ("BBSW") markets at issue in this action." The plaintiffs said they agreed to settle with JPMorgan because unlike other banks they are suing, JPMorgan was not subject to any sanction in Australia, but said the bank was in a position to provide evidence against its rivals. "Moreover, JPMorgan entirely denies any and all wrongdoing in the BBSW market. Plaintiffs have alleged that JPMorgan did participate in the agreement by assisting other defendants." NAB, ANZ, CBA and Westpac declined to comment. [GN] KING ARTHUR FLOUR: Website not Accessible to Blind, Dawson Says --------------------------------------------------------------- LESHAWN DAWSON, on behalf of himself and all others similarly situated, the Plaintiffs, v. THE KING ARTHUR FLOUR COMPANY, INC., the Defendant, Case No. 1:19-cv-01435-AJN (S.D.N.Y., Feb. 14, 2019), alleges that the Defendant failed to design, construct, maintain, and operate its website at www.kingarthurflour.com to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired people, a violation of the Plaintiff's rights under the Americans with Disabilities Act. According to the complaint, the Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read website content using his computer. The Plaintiff uses the terms "blind" or "visually-impaired" to refer to all people with visual impairments who meet the legal definition of blindness in that they have a visual acuity with correction of less than or equal to 20 x 200. Some blind people who meet this definition have limited vision. Others have no vision. Based on a 2010 U.S. Census Bureau report, approximately 8.1 million people in the United States are visually impaired, including 2.0 million who are blind, and according to the American Foundation for the Blind's 2015 report, approximately 400,000 visually impaired persons live in the State of New York. The 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, the lawsuit says. King Arthur Flour Company, formerly the "Sands, Taylor & Wood Company", is an American supplier of flour, ingredients, baking mixes, cookbooks, and baked goods. The company was founded in Boston, Massachusetts, in 1790, and is now based in Norwich, Vermont.[BN] Attorneys for the Plaintiff: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12 th Fl. Brooklyn, NY 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: Joseph@cml.legal - and - Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003-2461 Telephone: (212) 228-9795 E-mail: nyjg@aol.com danalgottlieb@aol.com LANDS END: Garey Asserts Breach of Disabilities Act --------------------------------------------------- Lands End, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled Kevin Garey, on behalf of himself and all others similarly situated, Plaintiff v. Lands End, Inc., Defendant, Case No. 1:19-cv-01663 (S.D. N.Y., February 22, 2019). Lands' End, Inc. operates as a multi-channel retailer in the United States, the United Kingdom, Germany, and Japan. The company operates in two segments, Direct and Retail. It offers casual clothing, accessories, footwear, and home products. The company sells its products online through landsend.com, and affiliated specialty and international Websites; direct mail catalogs; and retail locations primarily at Lands' End Shops at Sears, Lands' End stores, and international shop-in-shops. As of February 2, 2018, it operated 174 Lands’ End Shops at Sears; and 14 Lands’ End stores. Lands' End, Inc. was founded in 1963 and is headquartered in Dodgeville, Wisconsin.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com LEAF GROUP: Website not Accessible to Blind People, Dawson Says --------------------------------------------------------------- LESHAWN DAWSON, on behalf of himself and all others similarly situated, the Plaintiffs, v. LEAF GROUP LTD. d/b/a SAATCHI ART, the Defendant, Case No. 1:19-cv-01428-RA (S.D.N.Y., Feb. 14, 2019), alleges that Defendant failed to design, construct, maintain, and operate its website at www.saatchiart.com to be fully accessible to and independently usable by the 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 products and services offered thereby and in conjunction with its physical locations (its "Studios"), is a violation of the Plaintiff's rights under the Americans with Disabilities Act ("ADA"). According to the complaint, the Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read website content using his computer. The Plaintiff uses the terms "blind" or "visually-impaired" to refer to all people with visual impairments who meet the legal definition of blindness in that they have a visual acuity with correction of less than or equal to 20 x 200. Some blind people who meet this definition have limited vision. Others have no vision. Based on a 2010 U.S. Census Bureau report, approximately 8.1 million people in the United States are visually impaired, including 2.0 million who are blind, and according to the American Foundation for the Blind's 2015 report, approximately 400,000 visually impaired persons live in the State of New York. The 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, the lawsuit says. Leaf Group, formerly Demand Media Inc., is an American content company that operates online brands including eHow, LIVESTRONG.COM and marketplace brands Saatchi Art and Society6.[BN] Attorneys for the Plaintiff: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Fl. Brooklyn, NY 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: Joseph@cml.legal - and - Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003-2461 Telephone: (212) 228-9795 E-mail: nyjg@aol.com danalgottlieb@aol.com LIFETIME ENTERTAINMENT: 2d Cir. Affirms Dismissal of TCPA Suit -------------------------------------------------------------- The United States Court of Appeals, Second Circuit, issued an Order affirming the District Court’s judgment granting Defendant’s Motion to Dismiss in the case captioned KEVIN McCABE, Plaintiff-Appellant, TODD C. BANK, Appellant, v. LIFETIME ENTERTAINMENT SERVICES, LLC, Defendant-Appellee. No. 18-1149. (Cal. App.) Plaintiff-Appellant Kevin McCabe and Appellant Todd Bank appeal from order of the United States District Court for the Eastern District of New York (Korman, J.), adopting in full the report and recommendation of Magistrate Judge Sanket J. Bulsara, which granted the motions of Lifetime Entertainment Services, LLC (Lifetime) to dismiss the putative class action suit alleging Telephone Consumer Protection Act (TCPA) violations and sanction Bank for filing a time-barred claim. We assume the parties' familiarity with the underlying facts, procedural history, and specification of issues for review. Bank filed a putative class in the Southern District of New York alleging that Lifetime violated the TCPA by calling Time Warner Cable subscribers in New York with a prerecorded advertisement. Tolling The Court reviews de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor. In American Pipe, the Supreme Court considered whether class-action proceedings toll the statute of limitations period when a class action ultimately is not certified. Am. Pipe, 414 U.S. at 552-53. The Supreme Court held that the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action. The district court therefore properly dismissed McCabe's TCPA claims as untimely. Because McCabe's individual claims were time barred, the district court also properly dismissed the class claims as moot. Sanctions The denial of a motion for sanctions under Rule 11 is reviewed for abuse of discretion. A pleading, motion or other paper violates Rule 11 either when it has been interposed for any improper purpose, or where, after reasonable inquiry, a competent attorney could not form a reasonable belief that the pleading is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law. Sanctions Against Bank The district court did not abuse its discretion by sanctioning Bank. The arguments Bank presented to the district court were frivolous, and his arguments have been consistently rejected by this Court and by other circuits. Giovanniello, 726 F.3d at 107. Bank's post-argument briefing, which we have considered, reiterates these points. Bank did not point to any judicial or scholarly criticism of Giovanniello, failed to assert that the Second Circuit had previously overlooked an argument, and cited only outdated and abrogated cases or cases that had no bearing on the issues to support his argument. Bank contends that his citations to older or abrogated cases provided persuasive authority that sufficed to justify his arguments as not frivolous. Where, as here, the law of this Circuit is clearly contrary to a litigant's arguments, such cases cannot constitute a good-faith argument that existing law should be reversed. Given that McCabe's complaint and opposition to the motion to dismiss were frivolous, the district court did not abuse his discretion by sanctioning Bank. Sanctions Against Lifetime's Counsel McCabe argues that the district court abused its discretion by denying his motion for sanctions against Lifetime's counsel. But because Lifetime's motion was meritorious, Lifetime's motion was not frivolous and did not warrant sanctions under Rule 11 or 28 U.S.C. Section 1927. The Court have considered the remainder of McCabe's and Bank's arguments and find them to be without merit. Accordingly, the judgment of the district court is affirmed. A full-text copy of the Second Circuit's January 31, 2018 Opinion is available at https://tinyurl.com/y9at2tms from Leagle.com. Todd C. Bank, Kew Gardens, N.Y., Appearing for Appellants. Sharon L. Schneier -- sharonschneier@dwt.com -- Davis Wright Tremaine LLP, (Eric J. Feder ericfeder@dwt.com, on the brie), New York, N.Y., Appearing for Appellee. LIVE NATION CONCERTS: Faces Fishcler Suit under ADA in New York --------------------------------------------------------------- Live Nation Concerts, Inc. doing business as: Bonnarroo is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled Brian Fischler, individually and on behalf of all other persons similarly situated, Plaintiff v. Live Nation Concerts, Inc. doing business as: Bonnarroo, Defendant, Case No. 1:19-cv-01059 (E.D. N.Y., February 21, 2019). Live Nation Concerts, Inc. doing business as: Bonnarroo is a Live Nation is leading the way in the live concert business.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. Lipsky Lowe LLP 630 Third Avenue Fifth Floor New York, NY 10017 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com METAGENICS INC: Inks Proposed Settlement in Medical Food Suit ------------------------------------------------------------- ILYM Group Inc., a neutral third party that has been court appointed as Claims Administrator for this case, disclosed that Class Counsel, Kirk B. Hulett, Alex Tomasevic and Michael T. McColloch, have reached an agreement to resolve a class action pending against Metagenics, Inc. in the United States District Court for the Central District of California. The lawsuit alleges that Metagenics Inc. made false and misleading statements about some of its "Medical Food" products and that they should not have been labelled as "Medical Food." Under the terms of the settlement, Metagenics, Inc. denies any liability but agreed to fund a $1.3 Million settlement to fully resolve this matter without the time and expense of a court proceeding. The settlement has been preliminarily approved by the United States District Court for the Central District of California, Grivas v. Metagenics, Inc., Case no. 15-cv-01838-CJC-DFM and is subject to the court's final approval. The Settlement Class consists of all persons who purchased any of the following Metagenics products labelled as "Medical Foods" in the United States since November 9, 2011: UltraMeal Plus, UltraMeal Plus 360, UltraGlycemX, and UltraClear. The settlement fund will be used to pay an incentive award to the named plaintiff, the notice and claims administration costs, attorneys' fees and costs, and to eligible Class Members who submit a claim under the procedures implemented by the Court overseeing the settlement. For more information call ILYM Group, Inc. toll free at (855) 309-1484 or visit the settlement website at http://www.medicalfoodsettlement.com. The deadline to request exclusion from the settlement or object to the settlement is March 17, 2019. The deadline to file a claim is April 26, 2019. Alex Tomasevic, Esq. Nicholas and Tomasevic LLP 225 Broadway, 19th Floor San Diego, CA 92101 Telephone: (619) 325-0492 Fax: (619) 325-0496 Email: alex@nicholaslaw.org atomasevic@nicholaslaw.org [GN] MICHIGAN: Court Expects to Hear Arguments in Property Tax Case -------------------------------------------------------------- Joe Barnett, writing for Detroit News, reports that can Oakland County confiscate a citizen's personal property for $8.41 in unpaid taxes? This question will likely be answered by the Michigan Supreme Court later this year. The case at hand involves Uri Rafaeli, who failed to pay the interest owed on property taxes for a rental property in Southfield several years ago. Oakland County eventually foreclosed on his property for the $8.41 plus $277 in additional interest and fees. Similarly, Oakland County seized Andre Ohanessian's property in Orchard Village for a $6,000 tax debt. The county proceeded to auction Mr. Rafaeli's property for $24,500 and Mr. Ohanessian's property for $82,000 -- and then kept the surplus proceeds. Lower state courts have agreed the officials acted properly under Michigan's General Property Tax Act, which requires officials to take property for any amount of unpaid taxes and keep all the proceeds if they sell it. However, attorneys for Mr. Rafaeli and Mr. Ohanessian argue that the law is unconstitutional, at least as applied by Oakland County officials. "Whether considered a taking or a forfeiture, the confiscation of surplus equity fails the Michigan Constitution, the United States Constitution, and the central purpose of government: the protection of individual liberties and property," noted the plaintiffs' brief requesting a hearing before Michigan's highest court. The Takings Clause of the Fifth Amendment to the U.S. Constitution states the government cannot take private property "for public use, without just compensation." Article X, Section Two of the Michigan Constitution states "private property shall not be taken for public use without just compensation," and it goes on to specify that public use does not include "the taking of private property for transfer to a private entity for the purpose of economic development or enhancement of tax revenues." Oakland County has certainly enhanced its tax revenues through property takings. The county made $22.5 million from tax foreclosure auctions from 2006-15, according to The Detroit News. Oakland isn't the only county profiting from property takings. Thousands of properties across the Wolverine State are seized and sold for tax debts each year. In fact, attorney Philip Ellison has filed lawsuits against several counties for keeping the profits from tax auctions, including a class action lawsuit over the practice. Unfortunately, Michigan isn't the only state where this shady practice of property-taking occurs. Massachusetts, Minnesota, North Dakota and Oregon have laws that either require or allow the government to keep all the profits from the sale of private property. Of course government officials have the right to seize property for nonpayment of taxes and sell it to satisfy the debt. Yet Michigan residents should be outraged that government officials are seizing the equity the owners have in their property -- far in excess of the taxes owed -- potentially leaving them with mortgage payments for property they no longer own. The Michigan Supreme Court is expected to hear oral arguments in this case after reviewing the written briefs and could issue an opinion later this year. If the court fails to protect the rights of Michigan property owners, hopefully the Legislature will right this wrong. Joe Barnett is a research fellow with The Heartland Institute. [GN] NATIONAL COLLEGIATE: "Ashley" Suit Alleges Negligence ----------------------------------------------------- Augustus Ashley, individually and on behalf of all others similarly situated v. National Collegiate Athletic Association, Case No. 1:19-cv-00809 (S.D. Ind., February 25, 2019), is brought against the Defendant for negligence, breach of express contract and fraudulent concealment. The Plaintiff seeks to obtain redress for injuries sustained a result of the Defendant's reckless disregard for the health and safety of generations of University of Arkansas, Monticello student-athletes. The Plaintiff alleged that for decades, the Defendant NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. The Plaintiff Augustus Ashley is a natural person and citizen of the State of Florida. The Defendant NCAA is an unincorporated association with its principal place of business located at 700 West Washington Street, Indianapolis, Indiana 46206. The Defendant is the governing body of collegiate athletics that oversees twenty-three college sports and over 400,000 students who participate in intercollegiate athletics, including the football program at UAM. [BN] The Plaintiff is represented by: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 E-mail: efile@raiznerlaw.com NATIONAL COLLEGIATE: "Atkins" Suit Alleges Negligence ----------------------------------------------------- Patricia Atkins, as attorney-in-fact of Patrick Atkins, individually and on behalf of all others similarly situated v. National Collegiate Athletic Association, Case No. 1:19-cv-00808 (S.D. Ind., February 25, 2019), is brought against the Defendant for negligence, breach of express contract and fraudulent concealment. The Plaintiff seeks to obtain redress for injuries sustained a result of the Defendant's reckless disregard for the health and safety of generations of Illinois State University student-athletes. The Plaintiff alleged that for decades, the Defendant NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. Plaintiff Patricia Atkins is a natural person and citizen of the State of South Carolina. Patrick Atkins is also a natural person and citizen of the State of South Carolina. On January 10, 2017, Plaintiff Patricia Atkins was appointed attorney-in-fact of Patrick Atkins. The Defendant NCAA is an unincorporated association with its principal place of business located at 700 West Washington Street, Indianapolis, Indiana 46206. The Defendant is the governing body of collegiate athletics that oversees twenty-three college sports and over 400,000 students who participate in intercollegiate athletics, including the football program at ISU. [BN] The Plaintiff is represented by: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 E-mail: efile@raiznerlaw.com NESTLE USA: Must Address Issues in Barrett Settlement ----------------------------------------------------- The United States District Court for the Eastern District of Arkansas, Jonesboro Division, issued an Order requesting issues to be addressed in the case captioned SKY BARRETT, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. NESTLE USA, INC.; and NESTLE PREPARED FOODS COMPANY, Defendants. No. 3:18-cv-167-DPM. (E.D. Ark.). The Court notes the joint motion for preliminary approval of the proposed settlement. Here are the issues that the Court requests the parties address, inter alia: Should Section 12(b) carve out class members who opt out? In the class notice, the first shaded box would be more accurate if reversed: Your Options and Legal Rights. In the notice, the first box says the class action settlement agreement and release is described above, but the release slice is not described above. Should there be another box describing opt out as a stand-alone option? One could do so without objecting to the settlement, right? In the notice under the what rights am I giving up by submitting a claim form? section, should the second sentence be revised to cover the opt-out possibility? Please consider Even if you do not file a claim form, because you are a member of a certified class for settlement purposes, unless you opt out of the class you will give up your right to file a case under Arkansas state law that claims. The Barrett-specific agreement is a side agreement, which needs to be disclosed to class members. The notice should do so. A full-text copy of the District Court's February 4, 2018 Order is available at https://tinyurl.com/y4c8cbc6 from Leagle.com. Sky Barrett, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Joshua Sanford, Sanford Law Firm & Joshua Lee West, Sanford Law Firm. Nestle USA Inc & Nestle Prepared Foods Company, Defendants, represented by Eric R. Magnus -- Eric.Magnus@jacksonlewis.com -- Jackson Lewis P.C. & O. John Norris, III -- John.Norris@jacksonlewis.com -- Jackson Lewis P.C. NEW YORK: 2d Cir. Affirms Dismissal of M. Mitchell's Suit --------------------------------------------------------- The United States Court of Appeals, Second Circuit, issued an Order affirming the District Court's judgment granting Defendants' Motion for Summary Judgment in the case captioned MELINDA MITCHELL, individually and on behalf of a class of all others similarly situated, HARVEY MITCHELL, individually and on behalf of a class of all others similarly situated, Plaintiffs-Appellants, v. CITY OF NEW YORK, a municipal entity, NYC POLICE OFFICER JAMES SCHUESSLER, Shield No. 28718, POLICE OFFICER JOSEPH BRINADZE, NYPD CAPTAIN JOSEPH GULOTTA, NYPD SERGEANT DANIELLE ROVENTINI, NYPD LIEUTENANT KATHLEEN CAESAR, RICHARD ROES 1-50, NEW YORK CITY POLICE SUPERVISORS AND COMMANDERS, JOHN DOES, 1-50 NEW YORK CITY POLICE OFFICERS, individually, and in their official capacities, jointly and severally, Defendants-Appellees. No. 18-588. (2nd Cir.). Appellants Melinda Mitchell and Harvey Mitchell, putatively on behalf of themselves and all others similarly situated (Plaintiffs), appeal from the judgment of the United States District Court for the Southern District of New York (Kaplan, J.) granting summary judgment to defendant police officers (City Defendants) regarding claims of false arrest because the officers were protected by qualified immunity. Melinda and Harvey sued, bringing a putative class action alleging Section 1983 claims for false arrest, malicious prosecution, abuse of process, and excessive force. After discovery, the parties cross-moved for summary judgment. The district court granted appellees' motion for summary judgment in its entirety. The City Defendants moved for summary judgment on qualified immunity grounds, and the district court granted that motion. Plaintiffs timely appealed. Because the district court assumed the absence of probable cause for the arrests, the only issue on appeal is the question of whether Wesby dictates that the officers here were entitled to qualified immunity. Qualified immunity protects officials from damages liability if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Clearly established' means that, at the time of the officer's conduct, the law was sufficiently clear that every `reasonable official would understand that what he is doing' is unlawful. Wesby, 138 S. Ct. at (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). A police officer is entitled to qualified immunity in the context of a false arrest claim if there was at least arguable probable cause at the time the officer arrested the plaintiff. In assessing arguable probable cause, the inquiry is whether any reasonable officer, out of the wide range of reasonable people who enforce the laws in this country, could have determined that the challenged action was lawful. But the question in determining whether the City Defendants are protected by qualified immunity turns on the question of arguable probable cause a lesser showing. The only truly distinguishing fact between this case and Wesby is that in Wesby, the police officers made more of an effort to determine if the house was truly abandoned. That is not enough of a difference to deny the City Defendants qualified immunity. Accordingly, the order of the district court is affirmed. A full-text copy of the Second Circuit's January 31, 2018 Order is available at https://tinyurl.com/yb6yfnkl from Leagle.com. Jeffrey A. Rothman (Jonathan C. Moore, Beldock Levine & Hoffman LLP, Joshua S. Moskovitz -- moskovitz@bcmlaw.com -- Bernstein Clarke & Moskovitz, on the brief), New York, N.Y., Appearing for Appellants. Melanie T. West, Assistant Corporation Counsel, (Richard Dearing, Devin Slack, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, N.Y., Appearing for Appellees. NFL: Plaintiffs Lose Bid to Transfer Saints Non-Call Game Case -------------------------------------------------------------- Frank Zotter Jr., writing for The Ukiah Daily Journal, reports that on Jan. 30, NFL Commissioner Roger Goodell announced that he would not step in to overturn what most people concede was a blown call (or, rather, a "non-call") in the Saints-Rams NFC Championship Game. Late in the fourth quarter, on a third down play, the Saints were driving for a score when their quarterback, Drew Brees, threw toward Tommylee Lewis near the 5-yard line. But Rams cornerback Nickell Robey-Coleman knocked Lewis down before he could catch the ball. The officials probably should have called pass interference, which would have given the Saints a first down on the five-yard line with a lot of time left. Instead, the officials ruled the pass incomplete, and the Saints' had to settle for a field goal. Mr. Goodell stated that he had never considered ordering, e.g., that the game be replayed or at least that the Saints be given some kind of "mulligan" for those last few minutes. He acknowledged the disappointment of New Orleans' fans, but said, "[The rule] is clear. The commissioner will not apply his authority in cases of complaints . . . concerning judgmental errors or routine errors by game officials." This didn't stop a Saints fan named Tommy Badeaux (is there any way to tell he was from Louisiana?) from filing a class action lawsuit against the NFL and Commr. Mr. Goodell "on behalf of New Orleans Saints Season Ticket Holders, New Orleans Saints National Fan Base [also known as] The Who Dat Nation and any party with interest that has been affected by the outcome." Um, yeah, whatever. Mr. Badeaux' lawsuit, which also named his wife as a plaintiff, ended up in the federal court for the Eastern District of Louisiana (possibly not the most . . . neutral place that could have heard the case). The lawsuit sought both money damages and that Goodell be ordered to overturn the result and have the end of the game be replayed. The case had actually been filed in Louisiana state court (gosh . . . an even more neutral site), but the defendants were able to get the case transferred to federal court. Mr. and Mrs. Badeaux fought tenaciously to get the case transferred back to state court -- perhaps remembering that, in 2010, when the Saints made their first Super Bowl appearance, Louisiana state Judge Michael Bagneris spontaneously continued a jury trial for eight days because "Saintsmania permeates the City of New Orleans [and] [m]any prospective jurors . . ., several attorneys involved in this litigation, and Court personnel plan on traveling to the promised land -- the Super Bowl." One suspects that by "Court personnel," Judge Bagneris meant "me." Well, federal Judge Susie Morgan disappointed the Badeauxes -- and presumably New Orleans Saints Season Ticket Holders and the, um, Who Dat Nation -- with her ruling, which she issued on January 31, a day after Commr. Goodell announced that he wasn't going to intervene. Sadly, she did not follow the example of so many other judges involved in such lawsuits -- by, e.g., writing an opinion in verse, or making smarmy comments, such as beginning her opinion, "Question: When should an attorney say 'No' to a client? Answer: When asked to file a lawsuit like this one." No, she wrote a completely conventional opinion, patiently working her way through both federal and Louisiana state law, explaining why she had to deny the Badeauxes' request for a court order. "Conventional opinion," incidentally, means "almost unintelligible, even to an attorney." Seemingly lost in this dispute, though, is that this wasn't a situation where the Saints were trailing late in the game and then the bad call handed the game to the Rams. Instead, the Saints were only denied a (possible) touchdown. The Saints then kicked a field goal, giving them a 3-point lead. Then the Rams tied it up again with 15 seconds left in regulation. So the game went into overtime -- and the Saints won the coin toss -- but then a pass from quarterback Brees was intercepted by a Rams player, which led to the Rams winning the game. So, despite the officials' mistake, there were three subsequent scores in the game -- and the Saints had possession in overtime but lost because Brees was intercepted. But let's assume that Judge Morgan ordered that the last two minutes of regulation be replayed. And this time, with the score tied, suppose Brees threw an interception that was run back for a touchdown. Then the game ends, during regulation, with the Rams ahead. Would the Badeauxes have a lawsuit for that? [GN] OYSTER HARBORS YACHT: Bishop Assert Breach of Disabilities Act -------------------------------------------------------------- Oyster Harbors Yacht Basin Management Corp. d/b/a Oyster Harbors Marine is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled Cedric Bishop and on behalf of all others similarly situated, Plaintiff v. Oyster Harbors Yacht Basin Management Corp. d/b/a Oyster Harbors Marine, Defendant, Case No. 1:19-cv-01627 (S.D. N.Y., February 21, 2019). Oyster Harbors Marine has been serving customers with the highest level of professionalism in yacht sales, brokerage, and service.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. 150 E. 18 St. Suite PHR New York, NY 10003 Tel: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com PACIFIC GYPSUM: Removes Lopez's Labor Case to N.D. California ------------------------------------------------------------- Pacific Gypsum Supply, Inc. and Gypsum Management and Supply, Inc. remove case, EDUARDO LOPEZ LOPEZ on behalf of himself and others similarly situated, the Plaintiff, vs. PACIFIC GYPSUM SUPPLY, INC. D/B/A J & B MATERIALS, INC.; GYPSUM MANAGEMENT AND SUPPLY, INC.; and DOES 1 to 100, inclusive, the Defendants, Case No. C18-02320 (Filed Nov. 19, 2018), from the Superior Court of the State of California for the County of Contra Costa to the United States District Court for the Northern District of California on Feb. 14, 2019. The Northern District of California Court Clerk assigned Case No. 3:19-cv-00823 to the proceeding. The Plaintiff's complaint alleges that the Defendants failed to pay prevailing wages; provide compliant meal breaks; provide compliant rest breaks; pay all vacation wages due; adequately indemnify employees for employment-related losses/expenditures; provide complete and accurate wage statements; and timely pay unpaid wages due at time of separation of employment in violation of California Labor Code.[BN] Attorneys for the Defendants: Maggy Athanasious, Esq. LITTLER MENDELSON, P.C. 2049 Century Park East, 5th Floor Los Angeles, CA 90067.3107 Telephone: 310 553 0308 Facsimile: 310 553 5583 E-mail: mathanasious@littler.com PETZOLD'S YACHT: Bishop Alleges Violation under Disabilities Act ---------------------------------------------------------------- William J. Petzold, Incorporated d/b/a Petzold's Yacht Sales is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled Cedric Bishop and on behalf of all others similarly situated, Plaintiff v. William J. Petzold, Incorporated d/b/a Petzold's Yacht Sales, Defendant, Case No. 1:19-cv-01634 (S.D. N.Y., February 21, 2019). William J. Petzold, Incorporated d/b/a Petzold's Yacht Sales is a Boat Sales/Dealers in Rhode Island.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. 150 E. 18 St. Suite PHR New York, NY 10003 Tel: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com PLYMOUTH PLACE: Keene Sues over Use of Biometric Data, Unpaid Wages ------------------------------------------------------------------- MICHAEL KEENE, individually, and on behalf of all others similarly situated, the Plaintiff, vs. PLYMOUTH PLACE, INC. d/b/a PLYMOUTH PLACE SENIOR LIVING, and KRONOS, INC., the Defendant, Case No. 2019CH01953 (Ill. Cir. Ct., Feb. 14, 2019), seeks to put a stop to and redress the Defendants' unlawful collection, use, storage, and disclosure of Plaintiffs and the proposed Class's sensitive and proprietary biometric data, in violation of the Biometric Information Privacy. The Plaintiff also brings this matter individually against Defendant Plymouth Place for violating the Illinois Minimum Wage Law. The action alleges that Plymouth Place and Kronos unlawfully collect, store, and use Plaintiff Keene's and all other similarly-situated employees' biometric data. It further alleges that Defendant Plymouth Place wrongful withheld Plaintiff Keene's wages by failing to pay Plaintiff Keene all wages due for all hours worked, as well as for retaliatory discharge. The Plaintiff seeks to remedy Defendant Plymouth Place's illegal practices, whereby Plymouth Place deliberately deprived Plaintiff of earned wages and terminated Plaintiff in violation of the IMWL. Plymouth Place, Inc. operates a retirement community that offers nursing and rehabilitation services in Chicago. It provides independent living apartments.[BN] Attorneys for the Plaintiff: Ryan F. Stephan, Esq. James B. Zouras STEPHAN ZOURAS, LLP 100 N. Riverside Plaza, Suite 2160 Chicago, IL 60606 Telephone: 312 233 1550 Facsimile: 312 233 1560! E-mail: lawyers@stephanzouras.com PRINSTON PHARMACEUTICAL: Court Stays Judson Pending JPML Decision ----------------------------------------------------------------- The United States District Court for the Eastern District of California stays the case captioned JOHN JUDSON AND JO ANN HAMEL, individually and on behalf of a class of similarly situated individuals, Plaintiffs, v. PRINSTON PHARMACEUTICAL INC.; SOLCO HEALTHCARE U.S., LLC; HUAHAI U.S., INC.; TEVA PHARMACEUTICAL INDUSTRIES, LTD.; and, TEVA PHARMACEUTICALS USA, INC. Defendants. Case No. 1:18-cv-01405-DAD-EPG. (E.D. Cal.). Plaintiff in Kruk v. Zhejiang Huahai Pharmaceutical Co., Ltd., et al., No. 18-cv-005944 (N.D. Ill.) filed in the JPML a Motion to Transfer Actions to the District of New Jersey Pursuant to 28 U.S.C. § 1407 for Coordinated or Consolidated Pretrial Proceedings. See In re: Valsartan N-Nitrosodimethylamine (NDMA) Prods. Liab. Litig., MDL No. 2875 (J.P.M.L. Oct. 22, 2018) (the Motion to Transfer, attached as Exhibit A). The JPML is scheduled to hold a hearing on the Motion to Transfer on January 31, 2019.3 As such, a stay pending the JPML's ruling would be limited, would last for a brief, definite period, and will not result in undue prejudice to any of the Parties. All deadlines are vacated until further order of Court. This action is stayed pending the ruling by the Judicial Panel on Multidistrict Litigation on the Motion to Transfer Actions to the District of New Jersey Pursuant to 28 U.S.C. Section 1407 in In re: Valsartan N-Nitrosodimethylamine (NDMA) Prods. Liab. Litig., MDL No. 2875 (J.P.M.L. Oct. 22, 2018). A full-text copy of the District Court's January 31, 2018 Order is available at https://tinyurl.com/ycaxlq6m from Leagle.com. John Judson, on behalf of themselves and others similarly situated & Jo Ann Hamel, on behalf of themselves and others similarly situated, Plaintiffs, represented by Allan Kanner -- Kanner@kanner-law.com -- Kanner & Whiteley, LLC & John Randolph Davis -- jdavis@slackdavis.com -- Slack Davis Sanger, LLP. Prinston Pharmaceutical Inc., Doing business as Solco Healthcare LLC, Solco Healthcare U.S., LLC & Huahai US Inc., Defendants, represented by Meredith Proctor Grant -- mpgrant@duanemorris.com -- Duane Morris, LLP. PUBLIC ACCESS: Class Action Over Excessive Court Doc Fees Pending ----------------------------------------------------------------- Adam Liptak, writing for The New York Times, reports that the federal judiciary has built an imposing pay wall around its court filings, charging a preposterous 10 cents a page for electronic access to what are meant to be public records. A pending lawsuit could help tear that wall down. The costs of storing and transmitting data have plunged, approaching zero. By one estimate, the actual cost of retrieving court documents, including secure storage, is about one half of one ten-thousandth of a penny per page. But the federal judiciary charges a dime a page to use its service, called Pacer (for Public Access to Court Electronic Records). The National Veterans Legal Services Program and two other nonprofit groups filed a class action in 2016 seeking to recover what they said were systemic overcharges. "Excessive Pacer fees inhibit public understanding of the courts and thwart equal access to justice, erecting a financial barrier that many ordinary citizens are unable to clear," they wrote. The suit accuses the judicial system of using the fees it charges as a kind of slush fund, spending the money to buy flat-screen televisions for jurors, to finance a study of the Mississippi court system and to send notices in bankruptcy proceedings. A 2002 law allows -- but does not require -- the judicial system to charge for access to the records, but "only to the extent necessary" to pay for "services rendered." The judicial system says the law allows it to charge the current fees and to spend the proceeds on a variety of programs. People seeking free access, the judicial system's brief said, can visit the courthouse. Last year, Judge Ellen S. Huvelle of the Federal District Court in Washington accepted the challengers' basic theory and said the judicial system had misused some of the money. The case is now on appeal to the United States Court of Appeals for the Federal Circuit, and the challengers have attracted an impressive array of supporting briefs from retired judges, news organizations, civil rights groups and a sponsor of the 2002 law. Judge Shira A. Scheindlin, who served on the Federal District Court in Manhattan from 1994 to 2016 and signed a supporting brief, said the issue was straightforward. "There should be full public access to court records," she said. "It's an infinitesimal amount of money when you look at the total budget for the court system." The federal judiciary's budget is about $7 billion. Fees from Pacer generated about $145 million in recent years, or about 2 percent of the total. Judge Scheindlin said Pacer fees were particularly harmful to litigants who represent themselves, to academic researchers who want to explore systemic issues like sentencing disparities and to journalists at smaller news outlets. There is one shining exception to the federal judiciary's hostility to free electronic access to its records. In late 2017, the Supreme Court started its own electronic filing system, making virtually all documents filed with the court available online at no cost. "The Supreme Court's system is terrific, and it's a model for how courts can do this," said Deepak Gupta, a lawyer for the groups challenging the Pacer fees. "It demonstrates that there isn't any practical obstacle to making filings available for free." Pacer does make some exceptions to its 10-cents-a-page charges. Judicial opinions are free. For other documents, there is a $3 cap. People whose fees are less than $15 in a quarterly billing cycle are charged nothing. Courts also have some discretion to waive the fees. Curiously, they are generally prohibited from exempting "members of the media." That policy is bad for democracy, said a brief filed on behalf of the Reporters Committee for Freedom of the Press and 27 news media groups, including The New York Times. "As news outlets across the country face leaner budgets," the brief said, "few can readily afford daunting fees for court records, especially independent journalists and community news media companies." As a practical matter, Pacer has created a two-tier system, lawyers for former Senator Joseph I. Lieberman, who sponsored the 2002 law, wrote in a supporting brief. "Whether an individual is able to access these critical documents will often turn on their financial circumstances," the brief said. "That is at odds with the principle that all Americans should have equal access to the courts and to the documents that are essential to understanding the operation of our government." The pending lawsuit makes a relatively modest argument, saying that the judicial system has charged more than the 2002 law allowed. But there is a larger point here, one grounded in the First Amendment. "Public scrutiny of judicial proceedings enhances their quality, ensures their fairness and safeguards their integrity," a supporting brief from the American Civil Liberties Union and other groups said. The public has a right to know what goes on in its courthouses. Exercising that right should not require paying the government a dime a page or anything at all. "Federal courts need to be providing this access without charge," said Stephen W. Smith, who was until recently a federal magistrate judge in Houston and who signed a supporting brief. "There are too many downsides to creating these barriers. If you don't give effective access to these records, it undermines courts' legitimacy." [GN] PUBLIC ACCESS: Fees Harm Judiciary's Credibility, Judges Say ------------------------------------------------------------ Amanda Bronstad, writing for Law.com, reports that charging user fees for court records harms the credibility of the federal judiciary, according to seven retired federal judges including former U.S. Court of Appeals for the Seventh Circuit Judge Richard Posner in an amicus brief filed in a class action over PACER fees. The brief was one of five filed on Jan. 23 before the U.S. Court of Appeals for the Federal Circuit, which is hearing an appeal of a 2018 court ruling about the legality of user fees that the Administrative Office of U.S. Courts charges for access to court records via its Public Access to Court Electronic Records system, or PACER. Other briefs came from former U.S. Sen. Joe Lieberman, several "next-generation legal research platforms and databases," the Reporters Committee for Freedom of the Press and 27 media organizations, the American Civil Liberties Union, the Cato Institute and others, all in support of the plaintiffs, who were represented by Deepak Gupta of Gupta Wessler in Washington, D.C. The federal judges, who also included former Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York and former Judge W. Royal Furgeson of the U.S. District Court for the Western District of Texas, took no position in the case. But they insisted that, as a policy, PACER should not be charging fees at all. "Opening up judicial records by removing the PACER paywall would be consistent with the best traditions of judicial transparency," wrote their counsel, Sean Marotta, a partner at Hogan Lovells in Washington, D.C., in the brief. "And with greater judicial transparency comes more legitimacy in the public's eyes." Marotta declined to comment, as did Department of Justice spokeswoman Kelly Laco. Gupta, who filed his opening brief before the Federal Circuit on Jan. 16, did not respond to a request for comment. Both sides asked the Federal Circuit to take up an interlocutory appeal of Senior Judge Ellen Huvelle's order, which granted the federal government's summary judgment in part but denied a summary judgment motion by the plaintiffs, which are three organizations: the National Veterans Legal Services Program, the National Consumer Law Center and the Alliance for Justice. At issue is how the federal judiciary can spend revenues from PACER fees, which are 10 cents per page and totaled $920 million from 2010 to 2016—the period of the certified class in the case. Plaintiffs, who brought the class action three years ago, have argued that the revenues should be limited to costs associated with PACER. They have insisted that the E-Government Act of 2002, sponsored by Lieberman, sought to impose such limits after the federal judiciary began boosting PACER fees. Lieberman's amendment added statutory language that permitted such fees "only to the extent necessary." The Constitutional Accountability Center in Washington, D.C., wrote the brief for Lieberman, who represented Connecticut in the Senate from 1989 to 2013, in support of the plaintiffs. "The government's policy of charging fees that are greater than necessary to cover the costs of providing access to those documents plainly violates the law that Congress passed," Brianne Gorod, Esq. the center's chief counsel, wrote in an email. The federal government has argued that the appropriations committee expanded its authority over PACER fees. But in her March 31 order last year, Huvelle, of the District of Columbia, found neither side was entirely correct. She disagreed that PACER revenues were as limited as plaintiffs contended but struck down several expenditures that the government had defended, such as those for courtroom technology, web-based juror services and victim notification. In his appeal, Gupta said that's the only part the judge got right. "This appeal concerns whether the unlawful excess identified by the district court was too little (the plaintiffs view), too much (the government's view), or just right," he wrote. The federal judges behind the brief have some experience on the topic. Furgeson was chairman of the Judicial Resources Committee of the Judicial Conference of the United States, and Scheindlin was on the Administrative Office of U.S. Court's Task Force on Electronic Public Access from 2009 to 2012. The brief specifically identifies the harm that PACER fees have on pro se litigants -- an area of interest for Posner, who founded the Posner Center of Justice for Pro Se's after retiring from the bench in 2017. "Free access to PACER can help these petitioners -- and their friends and family who are often helping from the outside -- to prepare a meaningful case," Marotta wrote. "And it can help court efficiency: they could hone their case and forego frivolous claims." The judges also noted that there was no technical barrier to providing free access to court records, citing the U.S. Supreme Court's electronic filing system and recent changes in the 2019 budget that comply with the court's order. They suggested that "artificial scarcity," rather than necessity, might be the real motive behind charging for court records. "When the government enjoys an information monopoly over the public, it has a perverse incentive to seek rents that exceed actual cost," Marotta wrote. "The Judiciary appears to have fallen prey to this incentive."[GN] ROCKSTAR GAMES: Grand Theft Auto Online Players to Get Incentives ----------------------------------------------------------------- Tanner Dedmon, writing for comicbook, reports that Grand Theft Auto Online players have free in-game money waiting for them all throughout February, but they'll have to log in every weekend to get the incentives. GTA$ is the currency players use to purchase things in Grand Theft Auto V's online component, and assuming they log in ever weekend throughout February, those players can get $1 million each to use however they see fit. There will be $250,000 gifted to players every weekend so long as they long in to receive it with that money being deposited in players' accounts the following weekend. Rockstar Games' recent announcement about the game's most recent update confirmed the recurring gifts throughout February and explained how players can take part. "As the result of a class-action settlement with the citizens of Los Santos, Alan Jerome Productions -- the fine people who brought you the blood-thirsty hybrid of automotive combat and gladiatorial competition that is Arena War TV -- has been ordered to compensate the people of Southern San Andreas with up to GTA$1M each," Rockstar Games' announcement said. "Jump into GTA Online each weekend in February and you'll be awarded a GTA$250K gift that will be waiting for you in your Maze Bank account when you log in the following weekend." Players might just need that money if they plan on taking part of something else the update had to offer: The RC Bandito. The remote-controlled car requires players to own an Arena to have the car added to their workstations, but if they meet those requirements, they'll get a tiny death machine on wheels that's able to be outfitted with all kinds of weapons and tools. "All the danger, none of the personal risk," Rockstar Games said. "The little car with the big payload hits the streets of Los Santos, ready to be customized with a range of explosive surprises including Kinetic and EMP mines, plus a collection of unique visual modifications and more. If you want the pleasure of seeing your enemies flee in panic from a speeding toy car, this is the only game in town." There are also eight new RC Bandito Races that'll pay out Double GTA$ and RP to give players a way to make even more money. [GN] SAN BERNARDINO, CA: Court Dismisses Dickenson Civil Rights Suit --------------------------------------------------------------- The United States District Court for the Central District of California issued an Order dismissing the complaint in the case captioned JESSE L. DICKENSON, Plaintiff, v. JEFFREY HAGA, ET AL., Defendants. Case No. EDCV 18-2464-DOC (KK). (C.D. Cal.). Plaintiff, who is currently incarcerated at West Valley Detention Center in California, constructively filed1 a Complaint against defendants County of San Bernardino, Deputy John Doe, Deputy Norega, and Chief Executive Medical Examiner Jeffrey Haga (Defendants) in their individual and official capacities.Plaintiff alleges Defendants have policies and practices which fail to protect inmates from violence and subject inmates to harmful, inhumane conditions of confinement. The Plaintiff seeks to bring the action on behalf of himself and similarly situated class members under Federal Rule of Civil Procedure 23. As Plaintiff is proceeding in forma pauperis, the Court must screen the complaint and is required to dismiss the case at any time if it concludes the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. Under Federal Rule of Civil Procedure Rule 8(a), a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. In determining whether a complaint fails to state a claim for screening purposes, the Court applies the same pleading standard as it would when evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). PLAINTIFF FAILS TO STATE A SECTION 1983 CLAIM AGAINST ANY INDIVIDUAL DEFENDANT Applicable Law Section 1983 prohibits persons acting under color of law from depriving individuals of their constitutional rights. To state a claim against a defendant for violation of civil rights under Section 1983, a plaintiff must allege that the defendant deprived him or her of a right guaranteed under the Constitution or a federal statute. Here, Plaintiff fails to allege specific facts to support a claim against any individual defendant. Plaintiff does not set forth a short and plain statement of his claims to demonstrate individual defendants were directly and personally involved in inflicting the alleged injury. Absent specific allegations identifying what actions each defendant took against Plaintiff and how such actions violated Plaintiff's rights, the Complaint fails to provide Defendants with fair notice of Plaintiff's claims or the grounds upon which they rest. As such, Plaintiff's claims against each individual defendant are subject to dismissal. If Plaintiff wishes to amend his complaint, Plaintiff must state each claim separately and identify proper defendants for each claim. In addition, Plaintiff should clearly, precisely, and briefly identify the legal basis and the facts underlying each claim. Hence, in an amended complaint, Plaintiff should clearly state: (1) What actions were committed by each alleged defendant; (2) When and where the alleged actions were committed by each defendant; (3) What harm resulted from alleged actions by each defendant; and (4) What statute or constitutional right was violated because of the alleged actions by each defendant. A full-text copy of the District Court's January 31, 2018 Order is available at https://tinyurl.com/y7obl3xv from Leagle.com. Jesse L. Dickenson, Plaintiff, pro se. SECURUS: Faces Class Action Over Costly Jail Telephone Charges -------------------------------------------------------------- Heather Bellow, writing for The Berkshire Eagle, reports that Jennifer Thurston's family spends up to $50 a week on phone calls to stay in touch with her while she is in custody. It's a lot for a family struggling with poverty and poor health. "My husband's on disability," said Thurston, an Adams woman serving time for embezzlement. "He doesn't have a lot of money." Phone calls are sometimes the only comfort for families who live far from the Western Massachusetts Regional Women's Correctional Center, run by the Hampden County Sheriff's Department, where Thurston and other women from surrounding counties are held both before trial and while serving sentences. But the calls are costly because they must be made through an outside company -- much more costly than for people outside jails. Calls at the jail cost 12 cents per minute. While this is one of the lowest rates in jails across the state, and 42 percent lower than the 21-cents-per-minute rate cap set by the state Department of Telecommunications and Cable, critics say the cost penalizes poor people. "It is perverse to rack up [phone] charges for a vulnerable population," said Brian Highsmith, an attorney with the National Consumer Law Center in Boston. "It's their only lifeline to the outside world." Prisoners and their families pay the jail's phone company, Global Tel-Link Corp., in order to make and receive calls. The company then returns a percentage of that revenue back to the jail, which the jail uses to pay some of its costs, including security costs of call monitoring. In Hampden County, the revenue pays for valuable programs and activities, says Sheriff Nicholas Cocchi. The revenue returned to the jail provides library services, education supplies, teachers and mentors, GED testing, culinary training and other programs. The department also uses the money to pay the Pioneer Valley Transportation Authority to run a dedicated bus from downtown Springfield to the Ludlow men's jail, at an $118,000 yearly cost. "Each inmate pays a small fee per individual call which then results in a pool of funds directed right back into inmate programs," Cocchi said in an email. The jail also gives inmates unlimited free phone calls to their attorneys, and five free calls. But the expenses make families rush through phone calls. "She has to [talk] a hundred miles an hour to get it all out, in case we get cut off," said Wahya Wolfpaw, of Worcester, while her daughter was in jail. Global Tel-Link Corp. is one of two corrections phone companies that dominate the national $1.2 billion per year industry. It paid the Hampden County department $725,000 for phone calls to and from all its facilities between July 2016 and June 2017, according to records supplied by the department. Phone calls to and from the women's jail during that same period netted the department $110,000. Opponents see the system as unethical and predatory. Companies are using jails and prisons as a profit center, they say, and shifting what should be governmental costs onto people who are poor and powerless. More than eight states agree. New York, California and Michigan are among states that have reduced the cost of calls by outlawing or curbing revenue-sharing. Around the country, lawsuits have been filed over excessive jail and prison phone costs. Activists and attorneys say the families of prisoners, most of them poor, should not be shouldering what is the responsibility of the state, and paying significantly more for phone calls than free citizens. Highsmith and attorneys for Prisoners' Legal Services of Massachusetts are among several groups representing four people in a class-action lawsuit against the Bristol County Sheriff, and Securus, the company that charges inmates 16 cents per minute, and $3.16 for the first minute, even for redials made after the first is disconnected. Highsmith and other attorneys are pushing a consumer protection argument. They liken the setup to an illegal kickback scheme in which state institutions are indirectly extracting extra revenue by outsourcing with a private-sector company. A Global Tel-Link representative declined to comment. The practice will end altogether in New York City jails, after Mayor Bill de Blasio in August signed a bill to stop call charges that earn the city $5 million per year. The Federal Communications Commission tried to cap the rates lower than the current 21 cents per minute for out-of-state calls, citing concerns about "excessive rates and egregious fees on phone calls paid by some of society's most vulnerable people." Global Tel-Link opposed the move. When FCC Commissioner Ajit Pai was seated in 2017, the commission dropped its court efforts to fight Global Tel-Link's appeal. The interim rate cap remains at 21 cents per minute for out-of-state calls. But for most calls within the state, there is no cap. Peter Wagner, an attorney and executive director of the Prison Policy Initiative in Northampton, said sheriffs choose phone providers based on how much commission they'll get. "This is a regressive tax," Wagner said. "Why do we charge the poorest families in the state to pay for what the government thinks is an essential service?" Wagner's organization collects nationwide data from jails and prisons about this phone call commission structure. The Berkshire County Jail and House of Corrections, for instance, takes a 45 percent cut of profits earned by Securus, which has cornered most of this U.S. market, but charges inmates 20 cents per minute, and $3.20 for the first minute. The Hampden County jails, though charging 12 cents per minute, take an even larger share. Global Tel-Link pays the department a commission of 70 percent. "[The Hampden Sheriff] may advertise the low rate, but they could have used their negotiated rate to give a far lower rate to the families of Western Massachusetts [inmates]," Wagner said. "The 12 cents could be less than 4 cents. The jail could change this in five minutes." Wagner said sheriffs should be asking state legislators for program money instead. "Why didn't they convince the legislature to pay for the bus?" he asked. "They use the [money] to benefit projects they think are important rather than going to the legislature. If it's a social good, then the state should pay for it." Wagner said Berkshire County families pay exorbitant phone costs, but those commissions don't help them with public transportation to the jail. Sen. Mark Montigny, D-New Bedford, has sponsored a bill to eliminate commissions to jails and prisons, to charge inmates the same rate for comparable residential service, and for phone contracts to be negotiated based on the lowest rate. Montigny did not respond to calls and emails seeking comment. [GN] STATE COMPENSATION: Enterprise Inc. Files Suit under Fraud ---------------------------------------------------------- A class action lawsuit has been filed against State Compensation Insurance Fund. The case is styled as Enterprise Inc. Michael Reynolds dba Reynolds Termite Control individually and on behalf of all others similarly situated, Plaintiff v. State Compensation Insurance Fund, Defendant, Case No. 19STCV05738 (Cal. Super. Ct., Los Angeles Cty., February 21, 2019). The docket of the lawsuit states the case type as Contractual Fraud. The State Compensation Insurance Fund is a workers' compensation insurer that was created as a "public enterprise fund" by the U.S. state of California, and today has partial autonomy from the rest of the state government.[BN] The Plaintiff is represented by: Drew E. Pomerance, Esq. Roxborough, Pomerance, Nye & Adreani, LLP 5820 Canoga Avenue Suite 250 Woodland Hills, CA 91367 Tel: (818) 992-9999 STEINHOFF INT'L: PSA Wants Pension Fund to Join Class Action ------------------------------------------------------------ African News Agency reports that South Africa's Public Servants Association, which represents government employees and pensioners, said on Feb. 4 the concerns it had previously raised about the Public Investment Corporation (PIC) had been vindicated by allegations of corruption and impropriety against the fund manager's board and senior officials. Last Feb. 1 the PIC board asked Finance Minister Tito Mboweni to relieve it of its duties, citing the destabilising impact of "events in the recent past", including allegations of impropriety levelled against at least four directors. "The PSA has consistently stated that involvement of politicians and their business cronies in the running of the PIC was a disaster in the making," PSA general manager Ivan Fredericks said on Feb. 4. "The PSA appeals to the minister to listen to the PSA's voice of reason and hope. The union may not be aligned to any political party but the distinction between us and his comrades is that the PSA is driven by ethical standards and a love for the country," Mr. Fredericks said. He warned that Mr. Mboweni's failure to include public worker representatives in the interim PIC board "will have far-reaching implications". The association also urged the board of the Government Employees Pension Fund, which invests public workers' pensions through the PIC, to act on the revelations from the ongoing inquiry into the asset manager. "The PSA believes there is prima-facie evidence at hand to initiate legal proceedings against the PIC board that abrogated its fiduciary responsibilities," said the association. It warned that if the GEPF board fails to act and recover the losses owing to the depreciation in share-price value, "the PSA will hold each one of them responsible for those losses". The association said the GEPF should also join the international class action against Steinhoff International Holdings after it lost pension money invested by PIC in the retail giant when it was caught in an accounting scandal in December 2017. [GN] TEXAS: Faces Class Action Over Voting Rights Act Violation ---------------------------------------------------------- Dylan McGuinness, writing for ExpressNews.com, reports that legal challenges are continuing to mount against state officials who said nearly 100,000 people on Texas' voter rolls may not be citizens, a claim that met swift resistance from civil rights advocates. Luis Vera, national general counsel for the League of United Latin American Citizens, said he will file a motion for a more expedited injunction on Feb. 4 in the organization's lawsuit against Secretary of State David Whitley and Attorney General Ken Paxton. Mr. Whitley's office asked counties to send notices to those identified, asking them to prove their citizenship. The injunction would block further action based on the advisory. LULAC's lawsuit equated their actions to a "witch hunt" intended to intimidate voters -- especially naturalized citizens. A judge will likely set a hearing, Mr. Vera said. On ExpressNews.com: State hedges on claim that 100,000 Texas voters aren't citizens, faces federal lawsuit The request comes after the Campaign Legal Center joined the lawsuit on Feb. 1, adding constitutional concerns and a class-action lawsuit to the initial allegation that the state's advisory to county officials violated the federal Voting Rights Act. On the same day, the Mexican American Legal Defense and Educational Fund filed a separate suit in Corpus Christi, which contends that state officials singled out naturalized citizens because they were born outside the country. Mr. Whitley's office said it can't comment on pending litigation. LULAC's class-action suit features Julie Hilberg, 54, who claims she was wrongly included on the state's list. Ms. Hilberg's attorneys say her case illustrates the state's failed methodology in compiling the list. The people the state identified had obtained driver's licenses or personal ID cards as far back as 23 years ago showing they were legal residents but not citizens. They also had current voter registrations, the state said. Critics said that approach didn't account for people who became naturalized citizens after obtaining their licenses. The lawsuit alleges it was specifically designed to target them. Ms. Hilberg, who lives in Poteet and chairs the Atascosa Democratic Party, is a United Kingdom native who received a driver's license in 2014 as a legal permanent resident. One year later, she became a citizen in a Bexar County naturalization ceremony, the lawsuit says. Her license does not expire until 2020, and she was not required to notify the Department of Public Safety of her new citizenship. "After Defendant Whitley issued the Advisory, Ms. Hilberg became concerned she may appear on this 'list' of alleged noncitizens and could be removed from the registration list," the lawsuit said. Atascosa County Elections Administrator Janice Ruple confirmed she was on the list, despite her citizenship, according to Ms. Hilberg and the lawsuit. Reached by phone on Feb. 2, Ms. Hilberg deferred to her attorneys. In a statement, she said she never expected her voting rights would be jeopardized after becoming a citizen. "I am passionate about democracy as an American and Texan, and hold my voting rights dear," she said. "I want to stand up on behalf of the tens of thousands of people that may have been unfairly flagged by this flawed system and deprived of their constitutional rights." The attorneys in the case said others have reached out with similar concerns that they might be included on the list. "Individual voters may have specific stories, but the ways in which they are impacted are very similar and arise from the nature of the program, which is to target people who at some point were not citizens," said Danielle Lang, a co-director of Campaign Legal Center's voting rights program. Mr. Vera, of LULAC, said other plaintiffs would be added to the class-action suit. On ExpressNews.com: Texas officials launched voter purge with big splash, little accuracy The state's claim started unraveling within days of its announcement, as Whitley's office conceded that thousands of people were wrongly included on the list and county officials discovered other errors. Counties were asked to send notices to affected voters asking them to prove citizenship within 30 days or they would be removed from the rolls, though the state's letter said it was up to local officials to determine whether the information provided enough reason to doubt the voters' citizenship. At least one county had already sent notices to voters that shouldn't have received them. Most other county officials have said they would proceed with caution after thousands of people on the list were confirmed as citizens. On Feb. 1, Mr. Whitley's office sent a follow-up advisory to counties. "As you know, list maintenance activities are an ongoing process, and we thank you for your collaboration and feedback thus far," Keith Ingram, the state elections director, wrote to county officials. "The data we provide to you is the starting point, and your data matches should be reviewed before you send out any Notices of Examination." [GN] TILLY'S INC: Cal. App. Flips Demurrer to Wage Order 7 ----------------------------------------------------- The Court of Appeals of California, Second District, Division Three, issued an Opinion reversing the judgment of the District Court granting Defendant's Demurrer to Evidence Without Leave to Amend in the case captioned SKYLAR WARD, Plaintiff and Appellant, v. TILLY'S, INC., Defendant and Respondent. No. B280151. (Cal. App.). This appeal, which follows an order sustaining a demurrer without leave to amend, concerns the practice of on-call scheduling. Plaintiff Skylar Ward challenges the on-call scheduling practices of her former employer, Tilly's, Inc. (Tilly's), as violating wage order No. 7-2001 (Wage Order 7), which regulates the wages, hours, and working conditions in the mercantile industry. Among other things, Wage Order 7 requires employers to pay employees reporting time pay for each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work. Demurrer; Dismissal Order Tilly's demurred to the complaint, asserting that it failed to state a cause of action. It contended that the first cause of action for reporting time pay failed as a matter of law because requiring employees to call in to ask whether to report for work did not constitute reporting for work within the meaning of Wage Order 7. The second, third, and fourth causes of action were derivative of the first cause of action and, therefore, failed for the same reason. The trial court sustained the demurrer without leave to amend. It explained: This court is persuaded that Defendant's interpretation of the phrase report to work to mean that an employee physically appears at the workplace is a correct analysis and interpretation. The court finds that by merely calling in to learn whether an employee will work a call-in shift, Plaintiff and other employees do not report to work as contemplated by Wage Order 7. As such, Plaintiff is not entitled to reporting-time pay under the Wage Order, and the First Cause of Action for failure to pay reporting time pay fails. STANDARD OF REVIEW On appeal from an order of dismissal after an order sustaining a demurrer, our standard of review is de novo, i.e., the Court exercise our independent judgment about whether the complaint states a cause of action as a matter of law. Wage Orders and the Industrial Welfare Commission In 1913, the Legislature established the Industrial Welfare Commission (IWC) and spurred by concerns over inadequate wages and poor working conditions delegated to the agency authority for setting minimum wages, maximum hours, and working conditions. The IWC began issuing industry- and occupation-specific wage orders in 1916, and it revised those wage orders from time to time. Although the Legislature defunded the IWC in 2004, its wage orders remain in effect. Wage orders are issued pursuant to an express delegation of legislative power, and thus they have the force of law. The IWC's wage orders originally applied only to women and children, but since the 1970's they have applied to all employees, regardless of age and gender. The specific wage order applicable in this case is Wage Order 7, which governs all persons employed in the mercantile industry, other than persons employed in administrative, executive, or professional capacities. The mercantile industry is any industry, business, or establishment operated for the purpose of purchasing, selling, or distributing goods or commodities at wholesale or retail; or for the purpose of renting goods or commodities. Regulatory History and Purpose The Court Interpretation Is Not Limited by the IWC's Understanding of Wage Order 7 At the Time It Was Adopted The contemporaneous understanding of report for work is not dispositive of our analysis, however. To the contrary, our Supreme Court has held in construing statutes that predate their possible applicability to new practices or technology, courts have not relied on wooden construction of their terms. Fidelity to legislative intent does not make it impossible to apply a legal text to technologies that did not exist when the text was created. Drafters of every era know that technological advances will proceed apace and that the rules they create will one day apply to all sorts of circumstances they could not possibly envision. Thus, in applying existing statutes to new circumstances, the Court must maintain our usual deference to the Legislature in such matters and ask ourselves first how that body would have handled the problem if it had anticipated it. As relevant to the present case, Wage Order 7 does not reference telephonic reporting, nor is there evidence that the IWC ever considered whether telephonic reporting should trigger the reporting time pay requirement. To paraphrase our Supreme Court, such an omission is not surprising because neither the practice of on-call scheduling nor the cell phone technology that makes such scheduling possible existed when the IWC adopted the reporting time pay requirement in the 1940's. The Court therefore next consider whether, had the IWC been prescient enough to anticipate cell phones and telephonic call-in requirements, it would have intended the reporting time pay requirement to apply. Wage Order 7's History and Purpose In 1913, the California Legislature established the IWC to adopt minimum wages, maximum hours, and standard working conditions for the protection of women and minors. The first minimum wage orders were issued in early 1916, and by 1923 minimum wage orders had been adopted to cover most industries. The IWC revised nearly all of its industry orders in 1942 and 1943. Recommendations to the IWC provided by the Canning and Preserving Industries Wage Board in 1942 described the need for reporting time pay as follows: Allowing a large number of workers to come to the plant when there is little or no work for them is serious abuse. The testimony to the Wage Board showed that able employers through the information collected by their organization eliminated this evil almost entirely. Incompetent employers are able, however, to make the worker pay for their incompetency. It is an obvious advantage to the employer to have plenty of workers around for all emergencies if he does not have to pay for them. This history thus reveals, as our Supreme Court has said, that the IWC's purpose in adopting reporting time pay requirements was two-fold: to compensate employees and encourage proper notice and scheduling. With these twin goals in mind, the Court turns to the question before us whether, had the IWC considered the issue, it would have concluded that telephonic call-in requirements trigger reporting time pay. The Wage Order's History and Purpose Are Consistent With Requiring Reporting Time Pay for On-Call Shifts The Court concludes that had the IWC confronted the issue, it would have determined, as the Court does, that the telephonic call-in requirements alleged in the operative complaint trigger reporting time pay. The Court notes as an initial matter that the on-call practices plaintiff alleges have much in common with the specific abuse the IWC sought to combat by enacting a reporting time pay requirement in 1942. Like requiring employees to come to a workplace at the start of a shift without a guarantee of work, unpaid on-call shifts are enormously beneficial to employers: They create a large pool of contingent workers whom the employer can call on if a store's foot traffic warrants it, or can tell not to come in if it does not, without any financial consequence to the employers. This permits employers to keep their labor costs low when business is slow, while having workers at the ready when business picks up. It thus creates no incentive for employers to competently anticipate their labor needs and to schedule accordingly. For all of these reasons, the concludes that requiring reporting time pay for on-call shifts is consistent with the IWC's goals in adopting Wage Order 7. Reporting time pay requires employers to internalize some of the costs of overscheduling, thus encouraging employees to accurately project their labor needs and to schedule accordingly. Reporting time pay also partially compensates employees for the inconvenience and expense associated with making themselves available to work on-call shifts, including forgoing other employment, hiring caregivers for children or elders, and traveling to a worksite. Finally, reporting time pay makes employee income more predictable, by guaranteeing employees a portion of the wages they would earn if they were permitted to work the on-call shifts. Tilly's urges that reporting time pay for on-call shifts is inconsistent with the IWC's intent, which it characterizes solely as compensating the employee for transportation costs and loss of time. Tilly's contends that making a phone call to check one's schedule is not something that the IWC intended to compensate, since it does not involve transportation costs or loss of time in the same way that actually reporting for work does. There are several problems with Tilly's analysis, most significantly that it reads one of the IWC's primary purposes encouraging proper notice and scheduling out of the legislative and regulatory history. As the Court have said, the IWC identified its intention to encourage proper notice and scheduling when it first adopted a reporting time pay requirement in 1943, and it reiterated those concerns subsequently. Based on the foregoing, the Court concludes, contrary to the trial court, that an employee need not necessarily physically appear at the workplace to report for work. Instead, reporting for work within the meaning of the wage order is best understood as presenting oneself as ordered. Report for work, in other words, does not have a single meaning, but instead is defined by the party who directs the manner in which the employee is to present himself or herself for work that is, by the employer. Reporting Time Pay for On-Call Shifts Is Consistent With Supreme Court Authority Our conclusion that employees may be owed reporting time pay for on-call shifts is consistent with our Supreme Court's recent decision in Augustus, 2 Cal.5th 257. The plaintiffs in that case were security guards who were required to keep their pagers and phones on during 10-minute rest breaks and to respond to calls as needed. Plaintiffs sued, asserting that by requiring them to remain on-call during breaks, the employer was not providing them with true rest breaks. The trial court granted the plaintiffs' motion for summary adjudication, concluding that an on-duty or on-call break is no break at all. The Court of Appeal disagreed and reversed, concluding that simply being on call is not inconsistent with a period of rest. The Supreme Court granted review and reinstated the grant of summary adjudication for the security guards. It observed that applicable law required hourly employees be provided rest periods, but it did not define the term. Nonetheless, the court said, one cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods. The court explained: Although Wage Order 4 is silent as to on-call rest periods, our construction of the rest period requirement cannot be reconciled with permitting employers to require employees to remain on call. As the Court explained, a rest period means an interval of time free from labor, work, or any other employment-related duties. And employees must not only be relieved of work duties, but also be freed from employer control over how they spend their time. This very case provides an apt example. The trial court determined it was undisputed that [the employer's] policy required plaintiffs to keep radios and pagers on, remain vigilant, and respond if the need arose. Given these intersecting realities, on-call rest periods do not satisfy an employer's obligation to relieve employees of all work-related duties and employer control. In the context of a 10-minute break that employers must provide during the work period, a broad and intrusive degree of control exists when an employer requires employees to remain on call and respond during breaks. An employee on call cannot take a brief walk five minutes out, five minutes back if at the farthest extent of the walk he or she is not in a position to respond. Employees similarly cannot use their 10 minutes to take care of other personal matters that require truly uninterrupted time like pumping breast milk or completing a phone call to arrange child care. The conclusion that on-call rest periods are impermissible is not only the most logical in light of our construction of Wage Order 4, subdivision 12(A), but is the most consistent with the protective purpose of the Labor Code and wage orders. Tilly's Public Policy Arguments Are Not Persuasive Tilly's suggests that requiring reporting time pay for on-call shifts is unworkable and will have absurd unintended consequences. These claims are without merit. First, Tilly's contention rests on a misreading of the statutory language. Wage Order 7 requires reporting time pay if an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work. In other words, an employee is owed reporting time pay only if upon reporting for work, she is denied the opportunity to work. In Tilly's example, the employee was not denied the opportunity to work to the contrary, she was directed to work the on-call shift. She thus has no colorable claim to reporting time pay. Second, Tilly's suggests that if on-call shifts trigger reporting time pay, the employees will be entitled to compensation merely for ascertaining their schedules something Tilly's says has never been compensable. Tilly's frames the issue this way: Employees undoubtedly must ascertain when they are supposed to work. Sometimes schedules will be posted weeks or days in advance. And sometimes, as here, employees will not know their schedules until they call in, either two hours beforehand or the day before. No matter how far in advance it takes place, however, the act of ascertaining one's working schedule does not constitute reporting for work. Third, Tilly's contends that permitting employees to earn reporting time pay for calling in prior to the start of a shift is unworkable because there is no limit to how far in advance of a shift an employee might report for work. If an employee called in two days before, or three days before, or a week before, or two weeks before, in each case she would be performing exactly the same act: ascertaining by phone, in advance of a shift, whether to actually report for it. In so urging, Tilly's attacks a straw man because it is the employer, not the employee, who directs how employees report for work. As the Court have said, the Court do not hold that employees are entitled to reporting time pay whenever they contact their employer to determine what their schedule is. The Court holds only that if, as plaintiff alleges in this case, the employer requires the employee to call in two hours before the start of a shift, and the employee does so but is not put to work or is furnished less than half said employee's usual or scheduled day's work, then the employer is liable for reporting time pay. The judgment of dismissal and order sustaining the demurrer are reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion. A full-text copy of the Cal. App.'s February 31, 2018 Opinion is available at https://tinyurl.com/y4awhkjr from Leagle.com. McNicholas & McNicholas, Patrick McNicholas and Michael J. Kent, Frank Sims & Stolper and Scott H. Sims -- ssims@lawfss.com -- Bridgford, Gleason & Artinian and Michael H. Artinian -- Mike.Artinian@bridgfordlaw.com -- Esner, Chang & Boyer,Andrew N. Chang -- achang@ecbappeal.com -- Holly N. Boyer -- hboyer@ecbappeal.com -- and Steffi A. Jose -- sjose@ecbappeal.com -- for Plaintiff and Appellant. O'Melveny & Myers, Apalla U. Chopra -- achopra@omm.com -- Adam J. Karr -- akarr@omm.com -- Ryan Rutledge -- rrutledge@omm.com -- and Briana LaBriola for Defendant and Respondent. Greenberg Traurig, Mark D. Kemple -- kemplem@gtlaw.com -- and Ryan C. Bykerk- bykerkr@gtlaw.comfor -- Amicus Curiae Abercrombie & Fitch Stores, Inc. TNG GP: Court Modifies Pretrial Dates in J. Cooks' Suit ------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order granting Modification of Pretrial Dates in the case captioned JEANNETTE COOKS, an individual; ALWENA FRAZIER, an individual; and AUDREY L. BROWN, an individual for themselves and on behalf of all others similarly situated, Plaintiffs, v. TNG GP, a Delaware General Partnership; THE NEWS GROUP, INC., a Delaware Corporation; THE NEWS GROUP, L.P., a Delaware partnership; SELECT MEDIA SERVICES, L.L.C., a Delaware Limited Liability Company, and, DOES 1 through 10, inclusive, Defendants. Case No. 2:16-CV-01160-KJM-AC. (E.D. Cal.). The Class Certification Scheduling Order is modified as follows: All discovery shall be completed by August 23, 2019. Plaintiffs shall file a Motion for Class Certification no later than September 30, 2019. Opposition to Motion for Class Certification to be filed no later than October 18, 2019. Reply Briefing to Motion for Certification to be filed no later than November 8, 2019. The hearing on Plaintiffs' Motion for Class Certification is scheduled for November 15, 2019 at 10:00 a.m. in Courtroom 3 of this Court. A full-text copy of the District Court's February 4, 2018 Order is available at https://tinyurl.com/y35h3e6h from Leagle.com. Jeannette Cooks, Plaintiff, represented by Jeff Geraci -- jgeraci@ckslaw.com -- Cohelan Khoury and Singer, M. Catherine Starr, The Martinez-Senftner Law Firm, Michael D. Singer -- msinger@ckslaw.com -- Cohelan Khoury & Singer & Olivia Sanders, Law Offices of Olivia Sanders. TNG GP, News Group, Inc. & Select Media Services, L.L.C., Defendants, represented by Jerome L. Rubin -- jrubin@williamskastner.com -- Williams Kastner & Gibbs, PLLC, pro hac vice, Michael John Nader – michael.nader@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C. & Anthony J. DeCristoforo -- anthony.decristoforo@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart, PC. The News Group, L.P., Defendant, represented by Anthony J. DeCristoforo, Ogletree Deakins Nash Smoak & Stewart, PC & Michael John Nader, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. U.S. REMODELERS: Removes Jackson's Labor Case to C.D. California ---------------------------------------------------------------- Home Depot U.S.A, Inc., has removed the case captioned as, MARCK JACKSON, as an individual and on behalf of all others similarly situated, the Plaintiff, vs. U.S. REMODELERS, INC., dba HOME DEPOT INTERIORS, a Delaware Corporation; U.S. REMODELERS, INC. dba U.S. HOME SERVICES, an unincorporated association; THE HOME DEPOT U.S.A. INC., a Delaware Corporation; CRAIG A. MENEAR, an individual; and DOES 1 to 100, inclusive, the Defendants, Case No. 19STCV00656 (Filed Jan. 10, 2019) from the California Superior Court, County of Los Angeles, to the U.S. District for the Central District of California on Feb. 14, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-01163 to the proceeding. The Plaintiff works as a sales consultant for Home Depot earning commissions. The Plaintiff alleges that Home Depot misclassified him as an outside salesperson, and, as a result, failed to compensate him for all wages and overtime compensation due, provide him with required meal and rest breaks, provide accurate itemized wage statements, and maintain appropriate time records, pursuant to the California Labor Code. Home Depot is an American home improvement supplies retailing company that sells tools, construction products, and services. The company is headquartered in Atlanta, Georgia.[BN] Attorneys for Home Depot U.S.A., Inc.: Donna M. Mexias, Esq. William J. Edelman, Esq. AKIN GUMP STRAUSS HAUER & FELD LLP 580 California Street, Suite 1500 San Francisco, CA 94104 Telephone: (415) 765 9500 Facsimile: (415) 765 9501 E-mail: dmezias@kingump.com wedelman@kingump.com UNITED STATES: HHS Defends Efforts to Reunite Migrant Children -------------------------------------------------------------- Julie Small, writing for KQED News, reports that a top official with U.S. Department of Health and Human Services is defending his agency's efforts to identify migrant children separated from parents at the border -- and the agency's narrow definition of which children must be accounted for under a federal judge's order. In a court declaration filed on Feb. 1, Jonathan White, a commander with the U.S. Public Health Service Commissioned Corps who is leading HHS's efforts to reunify separated families, said his team had identified all the separated children in the custody of the Office of Refugee Resettlement, part of HHS, as of June 26, 2018. That's the date U.S. District Judge Dana Sabraw issued an injunction to stop family separations and ordered the government to promptly reunite children with their parents. Judge Sabraw's order came in a class action lawsuit -- Ms. L vs. U.S. Immigration and Customs Enforcement -- which challenged the Trump administration over family separation. Mr. White said in his declaration that the total number of children his agency was responsible for returning to their families is 2,816. That's an increase over previous tallies. In July 2018, ORR reported that there were 2,654 affected children. Officials later revised the number to 2,737. The vast majority of those children have since been released to their parents or another close relative. But last month, the inspector general for HHS issued a watchdog report, which found that thousands of additional children may have been taken from their parents at the border beginning in 2017, "before the accounting required by the court." Judge Sabraw asked the government to respond to the inspector general's report, which states, "Public attention has focused largely on children separated from their parents who are covered by a widely reported federal court order. But, more children, over a longer period of time, have been separated from their parents or guardians and referred to the Office of Refugee Resettlement (ORR) for care." Attorneys with the American Civil Liberties Union, which is representing plaintiff parents in the Ms. L case, say the government should be held accountable for the earlier separations -- and ensure that all those children are also returned to their parents. "We believe that even if the family were separated and the children were released from U.S. custody before June 26, those families should be included," said Lee Gelernt, the lead attorney in the case. "What we suspect is that many parents believed that the only way to get their child out of government custody was to agree to allow the child to be sent to a foster family or some other sponsor . . . And we have no idea if those parents have now gotten their children back or not." But in his declaration, Mr. White said it was unfeasible to try to account for children who had been separated from parents and then released by ORR prior to the June injunction. People who had waited two years or longer to see an immigration judge could now see their cases pushed to the back of the line. "HHS has no statutory authority over discharged children, much less routine contact with all of them," he wrote. "ORR grantees would face significant hurdles if they tried to collect information from separated children who were discharged before June 26, 2018." Mr. White said that over the past year and a half, close to 90 percent of unaccompanied or separated children released from ORR were placed with a parent or close relative. So he reasoned that any children separated in 2017 were most likely with their families now. Even if it were possible to locate previously separated children, Mr. White stated that HHS lacks the authority to take a child back from a sponsor in order to reunite the child with their parent. White, a social worker, warned that doing so would "destabilize" the child's environment and could be traumatic to the children. "The option more consistent with the best interest of the child," he asserted, "would be to allow the child to remain with their sponsor and focus instead on the ongoing work of reunifying parents with separated children presently in ORR care." The ACLU's Gelernt called that answer horrific. "It can't be that we can't account for thousands of children who were separated just because it may be too much work," Mr. Gelernt said. "The Trump administration's response is a shocking concession that it can't easily find thousands of children it ripped from parents, and doesn't even think it's worth the time to locate each of them." Mr. Gelernt has asked Judge Sabraw to include any child taken from a parent since 2017 in the Ms. L. case. The court is expected to hear that motion. [GN] UNITED STATES: Local Woman Sues Over Partial Gov't Shutdown ----------------------------------------------------------- Isabella Basco, writing for KIMT3 News, reports that a local woman is taking part in a lawsuit against the government after working nearly 100 hours of overtime without pay. The partial government shutdown was a challenging time for Sandy Parr. The mother of two racked up nearly a hundred hours of overtime without pay. Now, she is taking action. "I got extremely tired, the first pay period was 60 hours, the second pay period was 34," Parr said. Ms. Parr says the weeks of work without pay took a toll on her family life. "My kids were wondering why I was going to work when I wasn't getting paid," Ms. Parr said. Now -- she is hopeful the lawsuit will pay off. "Anybody who worked overtime is potentially due double of what they worked, so for me, that's 94 hours of overtime I'm getting paid a second time," Ms. Parr said. Heidi Burakiewicz is the lead attorney in the class action suit and is optimistic she will be able to get her clients a significant payday. "A minimum of one thousand one hundred 60 dollars per person is what the minimum wage violation comes out to plus the full amount of overtime that people worked," Ms. Burakiewicz said. Justin Tarovisky was the first plaintiff in the lawsuit against the government and he works at a federal penitentiary in West Virginia. "I don't want morale to get like it's been," Mr. Tarovisky said. "This is the worst I've seen in 11 years. I don't want to see that strain on the offices when we're there to defend the public." This class action lawsuit is not a small time affair. Ms. Burakiewicz tells KIMT at least thousands of employees have signed onto the lawsuit. [GN] WEALTHY TRADE: Lopez-Cuyuch Seeks Unpaid Minimum and OT Wages ------------------------------------------------------------- MARIO LOPEZ CUYUCH (A.K.A. ALEX), individually and on behalf of others similarly situated, the Plaintiff, vs. WEALTHY TRADE INC. (D/B/A WANISA HOME KITCHEN), RAGA CORP. (D/B/A WANISA HOME KITCHEN), RHYNCHOSPORA INC. (D/B/A WANISA HOME KITCHEN), WACHIRAPORN UDOMSAK, BAKUL MIAH, and TANIT DOE, Case No. 1:19-cv-00794 (E.D.N.Y., Feb. 8, 2019), seeks unpaid minimum and overtime wages pursuant to the Fair Labor Standards and the New York Labor Law. According to the complaint, the Plaintiff Lopez was employed as a cook at the restaurant located at 142 Smith St, Brooklyn, NY 11201. The Plaintiff worked in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that he worked. Rather, the Defendants failed to pay Plaintiff Lopez appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Further, the Defendants failed to pay the Plaintiff the required "spread of hours" pay for any day in which he had to work over 10 hours a day. The Defendants maintained a policy and practice of requiring the Plaintiff and other employees to work in excess of 40 hours per week without providing the minimum wage and overtime compensation required by federal and state law and regulations, the lawsuit says. The Defendants own, operate, or control a Thai restaurant, located at 142 Smith St, Brooklyn, NY 11201 under the name "Wanisa Home Kitchen."[BN] Attorneys for the 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 Faillace@employmentcompliance.com WIRECARD AG: Rosen Law Firm Investigates Securities Claims ---------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on Feb. 3 disclosed that it is investigating potential securities claims on behalf of shareholders of Wirecard AG (OTC: WCAGY, WRCDF) resulting from allegations that Wirecard may have issued materially misleading business information to the investing public. On January 30, 2019, The Financial Times reported that a senior executive at Wirecard was suspected of using forged contracts in connection with several suspicious transactions. On this news, shares of Wirecard fell sharply. Then, on February 1, 2019, The Financial Times reported that an external law firm commissioned by Wirecard found evidence indicating "serious offenses of forgery and/or of falsification of accounts." On this news, shares of Wirecard fell nearly 20%. Rosen Law Firm is preparing a class action lawsuit to recover losses suffered by Wirecard investors. If you purchased shares of Wirecard please visit the firm's website at https://www.rosenlegal.com/cases-1499.html to join the class action. You may also contact Phillip Kim or Zachary Halper of Rosen Law Firm toll free at 866-767-3653 or via email at pkim@rosenlegal.com or zhalper@rosenlegal.com. Rosen Law Firm -- http://www.rosenlegal.com-- represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. [GN] XYLEM INC: Bishop Asserts Violation under Disabilities Act ---------------------------------------------------------- Xylem, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled Cedric Bishop and on behalf of all others similarly situated, Plaintiff v. Xylem, Inc., Defendant, Case No. 1:19-cv-01644 (S.D. N.Y., February 21, 2019). Xylem Inc. is a large American water technology provider, enabling customers worldwide to transport, treat, test and efficiently use water in public utility, residential, commercial, agricultural and industrial settings. The company does business in more than 150 countries.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. 150 E. 18 St. Suite PHR New York, NY 10003 Tel: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com YUBA COUNTY, CA: Court OKs $1.7MM Attorney's Fees in Hedrick Suit ----------------------------------------------------------------- The United States District Court for the Eastern District of California, Sacramento Division, ordered the Defendants in the case captioned DERRIL HEDRICK, DALE ROBINSON, KATHY LINDSEY, MARTIN C. CANADA, DARRY TYRONE PARKER, individually and on behalf of all others similarly situated, Plaintiffs, v. JAMES GRANT, as Sheriff of Yuba County; Lieutenant FRED J. ASBY, as Yuba County Jailer; JAMES PHARRIS, ROY LANDERMAN, DOUG WALTZ, HAROLD J. "SAM" Trial SPERBEK, JAMES MARTIN, as members of the YUBA COUNTY BOARD OF SUPERVISORS, Defendants. Case No. 2:76-CV-00162-EFB. (E.D. Cal.), to pay a total of $1.7 million in attorneys' fees and costs to the Plaintiffs. The parties acknowledge that the Plaintiffs' counsel have incurred and will incur attorneys' fees, litigation expenses, and costs related to monitoring the Consent Decree, litigating issues related to enforcement of the Consent Decree, seeking remedial orders, and negotiating this Amended Consent Decree. The Plaintiffs will, contemporaneous with their filing of their motion for preliminary approval of the Amended Consent Decree, submit a motion for attorneys' fees and costs seeking to recover attorneys' fees and costs related to all work on this matter including monitoring the Consent Decree, litigating issues related to the Consent Decree (including the Motion to File a Supplemental Complaint), seeking remedial orders, and negotiating this Amended Consent Decree (fees and expenses). Plaintiffs agree not to seek fees and expenses from the Court in an amount above $1,100,000, for fees and expenses incurred. For work that the Plaintiffs performed prior through June 30, 2018 on work related to claims under sections 12132 and 12188 of the Americans with Disabilities Act (ADA), section 794 of the Rehabilitation Act, Article I, Sections 7 and 17 of California Constitution, California Government Code Section 11135, and California Code of Civil Procedure Ssection 1021.5 (ADA-related work), the Plaintiffs are entitled to compensation at their full market rates. After reasonable billing judgment reductions, the Plaintiffs' lodestar for work performed through June 30, 2018 is $1,652,000.20, representing compensation for 6922 hours of work invested in this case. Through final approval of the Amended Consent Decree, the Plaintiffs' lodestar is $100,901, representing compensation for 457.4 additional hours of work invested in this case. The Plaintiffs' counsel is entitled to recover the expenses advanced to prosecute this litigation on behalf of the class. The Plaintiffs have incurred costs and expenses of $68,782.81 through final approval of the Amended Consent Decree, the Plaintiffs have incurred costs and expenses of $2,010. Accordingly, the Court finds that the Plaintiffs' counsel's total lodestar of fees and expenses through June 30, 2018 of $1,720,783.01 is reasonable and appropriate under federal and state law for the work performed and the success achieved for the class. This amount far exceeds the negotiated cap of $1.1 million for fees and expenses incurred. The Court also finds that the Plaintiffs' counsel's total lodestar of fees and expenses from July 1, 2018 through final approval of $102,911 is reasonable and appropriate under federal and state law for the work performed and the success achieved for the class. Accordingly, the Defendants are ordered to pay the Plaintiffs' $1,100,000 for reasonable attorneys' fees, expenses, and costs. The Defendants are ordered to pay the Plaintiffs' $79,500 for reasonable attorneys' fees, expenses, and costs. A full-text copy of the District Court's January 31, 2018 Opinion is available at https://tinyurl.com/y7223row from Leagle.com. David Hedrick, Plaintiff, represented by Benjamin Joseph Bien-Kahn -- bbien-kahn@rbgg.com -- Rosen Bien Galvan & Grunfeld LLP, Carter Capps White -- ccwhite@ucdavis.edu -- King Hall Civil Rights Clinic, Gay Crosthwait Grunfeld -- ggrunfeld@rbgg.com -- Rosen Bien Galvan and Grunfeld LLP, Michael Bien -- mbien@rbgg.com -- Rosen Bien Galvan & Grunfeld LLP, Fred H. Altshuler, Altshuler Berzon LLP, Ilene Janet Jacobs -- ijacobs@crla.org -- California Rural Legal Assistance, Inc. & Michael Louis Freedman -- mfreedman@rbgg.com -- Rosen Bien Galvan & Grunfeld, LLP. Dale Robinson, Plaintiff, represented by Benjamin Joseph Bien-Kahn , Rosen Bien Galvan & Grunfeld LLP, Carter Capps White , King Hall Civil Rights Clinic, Gay Crosthwait Grunfeld , Rosen Bien Galvan and Grunfeld LLP, Michael Bien, Rosen Bien Galvan & Grunfeld LLP, Fred H. Altshuler, Altshuler Berzon LLP & Michael Louis Freedman, Rosen Bien Galvan & Grunfeld, LLP. James Grant & Yuba County, Defendants, represented by Carl L. Fessenden -- cfessenden@porterscott.com -- Porter Scott, PC, John Riley Vacek -- jvacek@co.yuba.ca.us -- County of Yuba & John Robert Whitefleet – jwhitefleet@porterscott.com -- Porter Scott, APC. Estate of Bertram Hiscock, Unknown, represented by Lori Rifkin -- lrifkin@hadsellstormer.com -- Hadsell Stormer & Renick LLP. [*] ALRC Report on Class Action Reform Presented in Parliament -------------------------------------------------------------- Justine Siavelis, Esq. -- jsiavelis@gclegal.com.au -- Katherine Czoch, Esq. -- kczoch@gclegal.com.au -- and Cherry Lee, Esq., of Gilchrist Connell, in an article for Mondaq, report that on January 24, 2019, the Australian Law Reform Commission (ALRC) report "Integrity, Fairness and Efficiency -- An Inquiry into Class Action Proceedings and Third-Party Litigation Funders" (Report) was tabled in Parliament. The basis for the Inquiry was the increased prevalence of class action proceedings commenced in Australian courts, and the role of litigation funders in those class actions. The Report contains 24 recommendations concerning the Federal system, some of which depart significantly from the reform measures proposed in the ALRC's Discussion Paper of 31 May 2018 (Discussion Paper). If implemented, the recommendations would change significantly the class action landscape and may lead to further legislative reform of securities law. The key recommendations from the Report are discussed below. Case Management High on the list of concerns was the composition of representative classes (open or closed) and the increase in multiple competing class actions. To address those concerns the ALRC recommends: * The Federal Court (Court) be given exclusive jurisdiction for class action proceedings arising under the Corporations Act 2001 (Cth) and Australian Securities and Investments Commission Act 2001 (Cth); * All class actions to be initiated as open class (where all potential claimants are members of the class with the ability for members to opt out), rather than closed class actions (where class members take active steps to join the class); * The Court's Class Action Practice Note be amended to provide criteria for class closure and reopening of classes; * The Court be given power to the Court to make common fund orders; * The Court be given an express power to deal with competing class actions, with the ALRC supporting a single class action to proceed for each dispute; * The States and Territories with class action procedures consider becoming a party to a protocol with the Federal Court to improve cooperation between them (Protocol). The Report contains proposals for the notification of class actions and a designated period (90 days) for competing class actions to be commenced. It is proposed that a 'selection hearing' for any competing class actions be held. with litigants to disclose to the Court on a confidential basis the terms of any funding or costs agreements and number of members in a class. The ALRC recommends the Court 'choose the proceeding which best advances the claims and interest of group members in an efficient and cost-effective manner' without statutory criteria. The respondent would not be involved in the selection (or 'carriage') process. The recommendation to confer exclusive jurisdiction on the Court is unlikely to be implemented, given the lack of support for the proposal to date and that it would mean the removal of class actions from State Courts; Protocol adoption is more likely to receive support from the State Courts. Regulation of Litigation Funders The ALRC recommends the Court have stricter supervision over litigation funders and litigation funding agreements in class actions, instead of implementing a statutory licensing regime for litigation funders as initially proposed. Key recommendations are that: * Third-party litigation funding agreements be enforceable only with approval of the Court; * The Court have the power to reject, vary or amend the terms of such agreements; * A funding agreement provide a complete indemnity to the representative plaintiff for an adverse costs order; * There be a statutory presumption that a third-party litigation funder will provide security for costs in a form enforceable in Australia; and * The Court have the power to order costs against funders and insurers who fail to facilitate the just resolution of disputed claims according to law and as quickly, inexpensively, and efficiently as possible. Solicitors' Fees and Conflicts of Interest The ALRC recommends solicitors be permitted to adopt a limited percentage-based ('contingency') fee model for class action proceedings, which is subject to similar restrictions to the third-party litigation funding regime. Key recommendations are that: * Solicitors be permitted to enter into 'percentage-based fee agreements' (PBFAs) -- allowing them to recover a percentage of the amount recovered in litigation -- with the following limitations: -- an action funded through a PBFA cannot also be directly funded by another entity charging on a contingency basis; -- a percentage-based fee cannot be recovered in addition to fees charged on a time-cost basis; -- solicitors entering a PBFA must advance the cost of disbursements; -- there be a statutory presumption that solicitors funding class action litigation through a PBFA provide security for costs in a form enforceable in Australia; -- PBFAs are permitted only with Court approval; and -- The Court have the power to reject, vary or amend the terms of PBFAs; * The Law Council of Australia should oversee a specialist accreditation scheme for solicitors in class action law and practice, including ongoing education in identifying and managing conflicts of interest. PBFAs may enable more medium-sized class actions to proceed and will open up competition between solicitors and litigation funders and likely drive percentage-based fees down. They would also provide a further market for after-the-event insurers funding disbursements and adverse costs orders. However, we question how effectively solicitors will be able to manage conflicts of interest, as PBFAs will necessarily put the respective interests of the solicitor and the client (and a solicitor's obligation to put the interests of the client first) into direct conflict. Whilst conflicts do currently exist where a solicitor acts pursuant to a Conditional "No Win No Fee" Agreement, and can manifest themselves in a solicitor advising a client to accept a low value settlements offer so that a "Win" occurs, PBFAs would exaggerate such issues and we can foresee circumstances where, for example, advice to reject reasonable settlement offers may be given in order to (potentially) increase a solicitor's percentage fee. Shareholder Class Action Proceedings and Continuous Disclosure Obligations The ALRC recommends that the Australian government commission a review of the legal and economic impact of the operation, enforcement, and effects of continuous disclosure obligations and those relating to misleading and deceptive conduct in securities actions. Most securities class actions allege breaches of these laws. A review would look at whether the current regime is working, including whether it is encouraging unmeritorious claims, whether additional defences are required, and the impact on D&O insurance. Notably the ALRC commented that there was currently a lack of verifiable data (despite submissions from brokers and insurers) to support the hypothesis that class action activity has lead to the increase in insurance premiums and claims paid, and a decrease in the availability of D&O insurance. Settlement approval The ALRC recommends: * Permitting the Court appointment of referees to assess the reasonableness of legal costs before settlement approval; * Permitting the Court to tender settlement administration and include processes for this to occur; * Requiring settlement administrators to report to the group and Court following distribution. The ALRC rejected the need to change the current settlement approval regime where a party may apply for a confidentiality order with respect to settlement, leaving it up to the Court to balance the principles of open justice with confidentiality concerns. Other recommendations Other recommendations include a review of regulatory enforcement mechanisms to provide a consistent framework of regulatory redress, and steps to address conflicts of interest for solicitors and funders. Conclusion Although the focus of the ALRC is primarily on the protection of claimants, the ALRC's recommendations are largely favourable to defendants and insurers by providing for a more robust and structured federal class action regime. The true impact will however depend on the extent to which the recommendations are implemented by the government and the Courts and may take some time to emerge. [GN] [*] Australia to Consult on ALRC Report on Class Action Reforms --------------------------------------------------------------- Insurance News reports that the Federal Government will consult on "complex issues" raised in an Australian Law Reform Commission (ALRC) report proposing changes to the class action regime. "The report is expected to stimulate debate among consumer advocates, the legal profession, the business sector and across the wider community on the issues raised," Acting Attorney-General Greg Hunt said. "The Government will further engage with key stakeholders in developing its response to the report, to ensure the class actions regime provides just and effective outcomes for all Australians." The ALRC made 24 recommendations, including that the Government conduct a separate review of the shareholder class action regime. It viewed soaring directors' and officers' premiums and insurers leaving the market as a "canary in the coalmine" that suggested "something is not quite right", but an earlier draft report prompted "claims and counterclaims" over alleged problems. Law firm Allens says Attorney-General Christian Porter has indicated a further separate review is not a high priority. "Nonetheless, we see it as important issue for the business community and will continue to advocate for reform in this space," it says. "However, it is likely to require a long-term approach." The ALRC says the Federal Court should have "exclusive jurisdiction" over class actions arising from the Corporations Act and Australian Securities and Investments Commission Act, and suggests amendments to address the rising number of competing class actions. It proposes greater oversight of third-party litigation funders, without requiring that they become licensed in the same way as financial service providers, and notes their important role providing access to justice. "A suite of recommendations to improve the regulation of litigation funders and to support the unique role of the Federal Court in protecting the interests of all group members is recommended in lieu of a licensing regime for litigation funders," it says. [GN] [*] D&O Premium Hike Blamed on Securities Class Action Activity --------------------------------------------------------------- Insurance News reports that commercial premiums climbed at a greater pace than expected last year and are set for further gains, according to a relatively positive JP Morgan Taylor Fry General Insurance Barometer. Assertions a year ago that the pricing cycle had turned positive have proved correct, with commercial rates jumping 9% last year, building on a 3% gain in 2017. The outlook this year is for an increase of 8% as insurers seek to improve profitability on their portfolios, and a still-healthy gain of 6% is expected in 2020. The flagship fire and industrial special risk (ISR) class achieved a 9% rate increase last year after declines of 3% in 2016, while commercial motor rate rises accelerated to 14%. Better combined operating ratios have also been reported, with domestic classes improving to 78% last year from 90% two years earlier and commercial lines moving to 96% from 101%. Fire and ISR was the only class to have a combined operating ratio languishing above 100%. Professional indemnity profitability improved, with rates rising 10%, but claims size inflation increased 8% and claims frequency was up 5.5%. Directors' and officers' (D&O) cover is included within the class, partially masking one of the most difficult areas for the industry. Increased securities class action activity is blamed for surging D&O premiums, with insurers exiting the line or reducing exposure. The Hayne royal commission last year led to multiple class actions against AMP and the inquiry may generate further claims. "The cost of class actions in the directors' and officers' class, particularly relating to breaches around disclosure obligations for listed companies, is approaching crisis levels," Taylor Fry Principal and Senior Actuary Kevin Gomes said. "This could create serious implications for a functioning economy if a significant increase in premiums creates difficulty for companies to obtain cover at an acceptable level." Mr Gomes says D&O is likely to face further pressure, with litigation funders expanding their presence in Australia and no signs that class action activity will decline. "Insurers have raised rates, but it is still performing quite poorly from a profitability perspective," he said. In domestic classes, profitability has improved over the past two years, particularly in compulsory third party insurance. "There has been a slight downward trend in the domestic motor and householder ratios, indicating improved profitability in these classes, while the premium rates in domestic classes overall are forecast to remain broadly stable," JP Morgan analyst Siddharth Parameswaran said. The overall market benefited from "quite strong" economic tailwinds last year, with unemployment declining and GDP improving. This year it may experience challenges from the wealth effect of a declining property market, less buoyant conditions in China and business confidence impacts that often emerge in an election year. The more positive commercial lines environment comes against increasing regulatory concern, with the Hayne royal commission's final report to be released this afternoon and the impacts of other reviews still in train. The Productivity Commission last year reported on competition in the financial system, targeting the insurance sector over a proliferation of brands that mask a smaller number of underwriters. The Australian Competition and Consumer Commission inquiry into northern Australian premiums has also released its first interim report, containing recommendations and draft proposals including a ban on commissions and another examination of comparison websites. It will release its its next update in November and final report next year. Underwriters, reinsurers and brokers surveyed for the JP Morgan and Taylor Fry barometer name regulation and compliance as a leading issue facing the industry. Other issues include profitability and competition in commercial classes, particularly in D&O, the hardening ISR market, the growing threat of cyber losses, surplus reinsurance capacity and insurtech. Regulatory changes are likely to provide headwinds in the year ahead, and some classes require further improvement. Several reports on the global industry last year suggested the Australian market was leading the trend to rising premiums. With the commercial pricing cycle remaining in a positive phase, the barometer suggests the industry is in a relatively good position to maintain its upward move. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2019. All rights reserved. ISSN 1525-2272. 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