/raid1/www/Hosts/bankrupt/CAR_Public/190305.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, March 5, 2019, Vol. 21, No. 46
Headlines
ACTIVISION BLIZZARD: Bronstein Gewirtz Files Securities Class Suit
ADVANCED DRAINAGE: Wyche Suit in New York Still Ongoing
ADVANCED MICRO: Garbage Class-Action Lawsuit Headed to Trial
ALLERGAN PLC: Kuznicki Law Discloses Securities Class Action Filing
ALPHABET INC: Faces Shareholder Derivative Class Action
ALPHABET INC: Rhode Island Retirement to Lead Lawsuit
ALTA MESA: Block & Leviton Files Securities Class Action
AMAZING HOME: Cedeno Seeks Unpaid Wages & Benefits
AMERICAN RESIDENTIAL: "Kissick" Suit Alleges TCPA Violation
ARIZONA: Faces Class Action Over Transgender Health Care
B & B COLLECTIONS: Odom Sues over Debt Collection Practices
BIMBO BAKERIES: Court Conditionally Certifies Hadmack FLSA Suit
BROOKE ALEXANDER: Website not Accessible to Blind, Matzura Says
BULLSEYE GLASS: Reaches $6.5MM Settlement in Class Action Lawsuit
CARMAX AUTO: Removes McElhannon et al. Suit to N.D. California
COMMONWEALTH FINANCIAL: Enchandia Sues over Debt Collection
CORNING INCORPORATED: Court Won't Dismiss Discrimination Suit
DAVITA HEALTHCARE: Court Decertifies Oldershaw FLSA Class
DBV TECHNOLOGIES: Wolf Haldenstein Adler Files Securities Lawsuit
DC AUTO: Faces Suit Over Alleged Violation of Labor Laws
DETROIT, MI: Court OKs Summary Judgment in Firefighters' Suit
DSV AIR: Pitarro Suit Moved to Northern District of California
EATON GROUP: Hays FDCPA Settlement Has Preliminary Approval
ERIE INDEMNITY: Court Dismisses Ritz Policyholders' Suit
EURIBOR PRODUCTS: Lowey Dannenberg Discloses Settlement
EXXON MOBIL: Court OKs Dismissal of Fentress ERISA Suit
FAIRFIELD, OH: Faces Campbell Suit in S.D. Ohio
FOSTER FARMS: Lacroix Sues over Credit Background Check
GEORGE TYNDALL: 30 More Women File New Lawsuit
HEARTLAND EMPLOYMENT: Removes Mason Suit to N.D. Illinois
INTEGRATIVE EMERGENCY: Faces Suit over Medical Billing Practices
INTERCONTINENTAL EXCHANGE: Awaits Court OK on Bid to Dismiss Suit
IRWIN INDUSTRIES: Removes Tate Suit to C.D. California
JEFFERSON PARISH, LA: Court Allows Witness Deposition in Carlisle
JOHNSON & JOHNSON: Settles Hip Implant Claims for $120MM
KATE SPADE: Schertzer Sues over Phantom Discounts
KLEEN PRODUCTS: May 1 Containerboard Settlement Hearing Set
LUMENTUM HOLDINGS: Oclaro Still Defends Karri Merger Lawsuit
MEDLEY CAPITAL: Faces 2 Merger-Related Class Suits in New York
MINDBODY INC: Stockholder Files Class Action Complaint
NCAA: Schmitz Sues over Health Issues of Richmond Student-Athletes
NEW HAMPSHIRE: State Workers Seek Payback of Union Fees
NEW WORLD: "Van Jacobs" Suit Alleges BIPA Violation
ONLINE INFORMATION: Soifer Asserts Violation under FDCPA New York
ORACLE CORP: Female Workers in Gender-Bias Suit Seek Class Status
OREGON: Faces Class Action Over Shortened School Day
ORNUA FOODS: Court Dismisses Myers-Taylor Consumer Fraud Suit
OZARK MOUNTAIN: Hearing Set in Solid Waste Service Fee Lawsuit
PAYPAL HOLDINGS: Sgarlata Securities Action Still Ongoing
PPG INDUSTRIES: Reaches $7.65MM Settlement With Retirees
PRO UNLIMITED: Valdez Files Suit in Cal. Super. Ct. San Francisco
RESOLUTE ENERGY: Faces Shareholder Class Action in Colorado
RIPPLE LABS: Hires Stuart Alderoty as New General Counsel
RYB EDUCATION INC: Stull Stull Files Securities Class Action Suit
SAMSONITE COMPANY: "Schertzer" Suit Alleges False Advertising
SIX FLAGS: Fingerprint Taken Could Clear Way for Lawsuit
SOLO HEALTHCARE: Rodich-Annese Files Class Suit in New Jersey
SOUTHWEST CREDIT: Persinger Asserts Breach of FDCPA in Indiana
TIDAL: Settles "Life of Pablo" Class Action for $84MM
TINDER: Settles Age Discrimination Lawsuit
TRANSWORLD SYSTEMS: Jean-Claude Alleges Violation under FDCPA
TRAVELPORT WORLDWIDE: "Klein" Suit Alleges Exchange Act Violation
UNITED STATES: Court Denies Dismissal of Emami Suit
UNITED STATES: Judge Likely to OK Trump Immigration Class Action
US DEALER: Greenberg Files Class Suit in D. New Jersey
VENTURE 475: Sued over Alleged Nuisance Telemarketing Practices
VERIZON: Plaintiffs Dismiss "Zombie Cookies" Class Action
WAITR HOLDINGS: "Halley" Suit Alleges FLSA Violation
WAL-MART: Court Grants FCRA Class Certification
[*] Luxembourg Minister Expects to Deliver Class Action Draft Bill
[*] Securities Class Action Filings Hit Record Levels in 2018
*********
ACTIVISION BLIZZARD: Bronstein Gewirtz Files Securities Class Suit
------------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC notified investors that a class
action lawsuit has been filed against Activision Blizzard, Inc.
("Activision" or the "Company") (NASDAQ: ATVI) and certain of its
officers, on behalf of shareholders who purchased or otherwise
acquired Activision securities from August 2, 2018 and January 10,
2019, inclusive (the "Class Period"). Such investors are encouraged
to join this case by visiting the firm's site:
www.bgandg.com/atvi.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws under the
Securities Exchange Act of 1934.
The Complaint alleges that throughout the Class Period Defendants
made materially false and misleading statements and/or failed to
disclose that: (1) the termination of Activision Blizzard and
Bungie's partnership, giving Bungie full publishing rights and
responsibilities for the Destinyfranchise, was imminent; (2) the
termination of the two companies' relationship would foreseeably
have a significant negative impact on Activision Blizzard's
revenues; and (3) as a result, Activision Blizzard's public
statements were materially false and misleading at all relevant
times.
On January 10, 2019, Activision Blizzard and Bungie announced the
end of their business relationship. That same day, in an Securities
and Exchange Commission filing, Activision Blizzard stated that
Bungie "would assume full publishing rights and responsibilities
for the Destiny franchise. Going forward, Bungie will own and
develop the franchise." Following these announcements, the
Company's stock price fell $4.81 per share, or 9.37%, to close at
$46.54 on January 11, 2019.
A class action lawsuit has already been filed. If you wish to
review a copy of the Complaint you can visit the firm's site:
www.bgandg.com/atvi or you may contact Peretz Bronstein, Esq. or
his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz
& Grossman, LLC at 212-697-6484. If you suffered a loss in
Activision you have until March 19, 2019 to request that the Court
appoint you as lead plaintiff. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
Peretz Bronstein, Esq.
Yael Hurwitz, Esq.
Bronstein, Gewirtz & Grossman, LLC
Telephone: 212-697-6484
Email: peretz@bgandg.com [GN]
ADVANCED DRAINAGE: Wyche Suit in New York Still Ongoing
-------------------------------------------------------
Advanced Drainage Systems, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on February 7, 2019,
for the quarterly period ended December 31, 2018, that the
defendants in a class action by Christopher Wyche have opposed the
plaintiff's motion for relief from final judgment and for leave to
file an amended complaint in federal district court, and are
awaiting a decision by the court.
On July 29, 2015, a putative stockholder class action, Christopher
Wyche, individually and on behalf of all others similarly situated
v. Advanced Drainage Systems, Inc., et al. (Case No.
1:15-cv-05955-KPF), was commenced in the U.S. District Court for
the Southern District of New York (the "District Court"), naming
the Company, along with Joseph A. Chlapaty, the Company's former
Chief Executive Officer, and Mark B. Sturgeon, the Company's former
Chief Financial Officer, as defendants and alleging violations of
the federal securities laws.
An amended complaint was filed on April 28, 2016. The amended
complaint alleged that the Company made material misrepresentations
and/or omissions of material fact in its public disclosures during
the period from July 25, 2014 through March 29, 2016, in violation
of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934,
as amended, and Rule 10b-5 promulgated thereunder.
On March 10, 2017, the District Court dismissed plaintiff's claims
against all defendants in their entirety and with prejudice.
Plaintiff appealed to the United States Court of Appeals for the
Second Circuit, and on October 13, 2017 the District Court's
judgment was affirmed by the Second Circuit.
On October 27, 2017, plaintiff filed a petition for rehearing with
the Second Circuit. The Second Circuit denied the petition for
rehearing on November 28, 2017.
On November 27, 2018, the plaintiff filed a motion for relief from
final judgment and for leave to file an amended complaint with the
District Court. The defendants have opposed the plaintiff's motion
and are awaiting a decision by the District Court.
Advanced Drainage said, "While it is reasonably possible that this
matter ultimately could be decided unfavorably to the Company, the
Company is currently unable to estimate the range of the possible
losses, but it could be material."
Advanced Drainage Systems, Inc. designs, manufactures, and markets
thermoplastic corrugated pipes and related water management
products in the United States and internationally. The company
offers single, double, and triple wall corrugated polypropylene and
polyethylene pipes; and allied products, including storm
retention/detention and septic chambers, polyvinyl chloride
drainage structures, fittings, and water quality filters and
separators. Advanced Drainage Systems, Inc. was founded in 1966 and
is headquartered in Hilliard, Ohio.
ADVANCED MICRO: Garbage Class-Action Lawsuit Headed to Trial
------------------------------------------------------------
Joel Hruska, writing for ExtremeTech, reports that a class-action
lawsuit against AMD alleging that the company misrepresented the
capabilities of its Bulldozer and Bulldozer-derived product lines
will proceed to trial after a federal district judge opted not to
dismiss it out of hand. While US district judge Haywood Gilliam's
decision is not a judgment in favor of the plaintiffs, it does
certify the class-action suit and allow it to proceed.
The argument, from plaintiffs Tony Dickey and Paul Parmer, is that
AMD "misrepresented the number of core processors in its
'Bulldozer' line of central processing unit… Plaintiffs allege
that the Bulldozer CPUs, advertised as having eight cores, actually
contain eight 'sub-processors' which share resources, such as L2
memory caches and floating point units ('FPUs')."
I wrote about this lawsuit back when it was filed in 2015 and my
opinion hasn't changed in the intervening 3+ years. That article
also deals with the specific claims Dickey made against AMD in his
original case and why they were variously inaccurate or
inapplicable. In this case, AMD's counter-claim that "a significant
majority interpret 'core' in ways that are fully consistent with
AMD's chips," was deemed an insufficient reason not to certify the
class lawsuit.
What Dickey and Parmer are actually arguing is that
Bulldozer/Piledriver (the FX-9590, specifically) did not deliver
the performance they expected from an eight-core CPU relative to
Intel CPUsSEEAMAZON_ET_135 See Amazon ET commerce. They argue that
the shared resources in the Bulldozer core prevented the chip from
"simultaneously multi-tasking" and that because resources were
shared between the CPU cores, that Bulldozer "functionally only
have four cores." Both of these claims are factually wrong.
Bulldozer did not support SMT, which allows a CPU to execute more
than one thread simultaneously. The fact that performance scales
upwards in integer and FPU workloads on a BD/PD processor when
moving from four threads to eight is proof that the CPU is not
limited to a functional four-core arrangement. As these results
from OpenBenchmarking.org show, BD performance improves above the
four-thread mark, even in FPU workloads. Integer workloads also
show improvements in scaling from four threads to eight. While the
absolute degree of scaling may be less, Bulldozer is not a
functional quad-core CPU as a matter of defined core count. The
fact that its overall performance may have been equivalent to an
Intel quad-core has nothing to do with whether the CPU factually
had the advertised number of cores.
It's absolutely true that Bulldozer's scaling factor was about 20
percent lower than a "true" multi-core design. It's also true that
AMD's BD architecture was, for better or worse, unique. It shared
resources in a different way than other CPUs on the market and its
overall level of performance didn't match what many enthusiasts
wanted. A Bulldozer CPU core was different than a Thuban CPU core,
or an Intel CPU core from an equivalent Core chip. The problem is,
they aren't nearly different enough to justify arguing that AMD had
misused the word core, and the claims the plaintiffs make do not
withstand technical analysis.
Consider, for example, the difference between Bulldozer/Piledriver
and the Sony Cell Broadband Engine that powered the PS3. No one
would argue that Cell was a conventional eight-core processor
(seven cores were enabled for the PS3). It combined a fairly
standard PowerPC CPU core (the PPE, or Power Processing Element)
with up to eight SPEs (Synergistic Processing Elements). These SPEs
were distinctly different from conventional CPU cores, with only
limited access to small local memory pools and no hardware
resources for branch prediction. Deep dive articles on Cell are
available at RealWorldTech, for those interested in a trip down
memory lane.
Sony didn't explicitly market the PS3 as an eight-core system to my
recollection, yet according to the most basic definition of the
word — namely, being the part of the CPU that performs
calculations based on received instructions — the SPEs of the
Cell Broadband Engine would still qualify as cores. In this case,
Sony recognized that the technical differences between the CBE and
other more mainstream chips were significant enough to use
different labels for the components of the chip. But that nod to
consumer understanding, while absolutely the right thing to do,
doesn't mean that we can't call the SPEs "cores."
Did Bulldozer share an FPU? Certainly. So did the Sun UltraSPARC T1
(one FPU per chip) and T2 (one FPU per core, but shared by up to
eight threads). The lawsuit claims that sharing L2 caches and FPUs
means that AMD violated the commonly understood definition of
"core," yet Intel chips have shared L2 caches since the Core 2 Duo
days. And therein lies the problem. We could certainly define a CPU
core based on the underlying capabilities of the relevant
components to act as a general purpose microprocessor without
assistance — something Cell's SPEs cannot do. This type of
division would establish a more meaningful differentiation.
Attempting to draw a line through a chip in the manner that this
lawsuit does, however, is impossible. If Bulldozer's cores aren't
cores, neither are the cores in other CPUs.
Unlike Cell, any single Bulldozer core was capable of running all
of the workloads that eight Bulldozer cores were capable of
running. Performance clearly scaled with access to additional
threads, and other CPU designs from other companies that clearly
marketed themselves based on core count were available at a variety
of performance levels on a per-core basis. There's a potential way
to draw a distinctive definition out of all this, but you wouldn't
do it using the characteristics advanced by the plaintiffs in this
lawsuit.
Dickey and Parmer may be angry that they bought eight-core CPUs
that didn't perform like eight-core CPUs from Intel. That doesn't
mean Bulldozer wasn't an eight-core chip. Having a certain number
of cores does not guarantee a given level of performance.[GN]
ALLERGAN PLC: Kuznicki Law Discloses Securities Class Action Filing
-------------------------------------------------------------------
The securities litigation law firm of Kuznicki Law PLLC issues the
following notice on behalf of shareholders of the following
publicly traded companies. Shareholders who purchased shares in
these companies during the dates listed below are encouraged to
contact the firm regarding possible appointment as lead plaintiff
and a preliminary estimate of their recoverable losses.
If you wish to choose counsel to represent you and the class, you
must apply to be appointed lead plaintiff and be selected by the
Court. The lead plaintiff will direct the litigation and
participate in important decisions including whether to accept a
settlement for the class in the action. The lead plaintiff will be
selected from among applicants claiming the largest loss from
investment in the respective securities during the class periods.
Members of the class will be represented by the lead plaintiff and
counsel chosen by the lead plaintiff. No classes have yet been
certified in the actions below. Appointment as lead plaintiff is
not required to partake in any recovery.
Allergan plc (NYSE: AGN)
A class action has commenced on behalf of shareholders in Allergan
plc who purchased shares between May 9, 2017 and December 19, 2018.
The filed complaint alleges that defendants made materially false
and/or misleading statements and/or failed to disclose that: During
the Class Period, and unbeknownst to investors, Allergan misled
investors regarding various "pharma and device approvals" and
concealed the fact that the Company's CE Mark for its textured
breast implants and tissue expanders was expiring in Europe. On
December 19, 2018, the Company announced that, following a
compulsory recall request from Agence Nationale de Sécurité du
Médicament ("ANSM"), the French regulatory authority, the Company
had suspended the sale of these products and that it was
withdrawing all remaining supplies from European markets. The
suspension of sales stemmed directly from the expiration of the
company's CE Mark for these products, and the stock price fell
drastically following the news.
Daniel Kuznicki, Esq.
Kuznicki Law PLLC
445 Central Avenue, Suite 334
Cedarhurst, NY 11516
Phone: (347) 696-1134
Cell: (347) 690-0692
Fax: (347) 348-0967
Email: dk@kclasslaw.com [GN]
ALPHABET INC: Faces Shareholder Derivative Class Action
-------------------------------------------------------
Robert Kahn, writing for Courthouse News Service, reported that
Alphabet shareholders claim in a federal derivative class action
that directors of the company failed for six months to disclose a
data breach affecting nearly 500,000 Google Plus users, causing the
share price to drop by 15 percent in October 2018 as U.S. senators
questioned the company's compliance with a 2011 FTC consent
decree.
The case is Bao v. Alphabet Inc., et al., Case No. 19-cv-00314
(N.D. Cal.).
A copy of the Complaint is available at:
https://is.gd/tyKhnq
ALPHABET INC: Rhode Island Retirement to Lead Lawsuit
-----------------------------------------------------
Elijah Owens, writing for Chief Investment Officer, reports that
the $8.1 billion Employees' Retirement System of Rhode Island
(ERSRI) has been named the lead plaintiff in a class action lawsuit
against Alphabet Inc., the parent company of Google, over the
October 2018 revelation that the company failed to disclose a
security breach that compromised the personal information of
500,000 users.
Following the October news, Alphabet later revealed the number of
users whose private information was compromised was significantly
larger than it had originally reported, surmounting to over 52.5
million accounts.
"Google knew that there had been a security breach and that users'
private information had been compromised, and instead of disclosing
the information, they chose to hide it," Rhode Island Treasurer
Seth Magaziner said in a statement.
All similar class action lawsuits brought against Google in
relation to its failure to disclose the security breach will be
consolidated under the ERSRI-led case. Suitors objecting to the
consolidation will have 10 days from the January 25 ruling to file
their objections with the Northern District of California.
The ERSRI, which holds about 44,500 shares in Alphabet Inc., valued
at approximately $47.7 million, "petitioned to serve as lead
plaintiff because we felt that we had both the standing and
internal resources to support the suit," a spokesperson for the
retirement system told CIO.
"We monitor the behavior at companies in which we invest regularly
and encourage practices that are in the long-term interest of the
company and its shareholders," the spokesperson added. "Often, this
involved engaging companies to help improve practices, however in
matters like the one at Alphabet, we feel it is necessary and
appropriate to seek legal remedy."
The ruling, ordered by United States District Judge Jeffrey White,
also approved Robbins Geller Rudman & Dowd LLP as lead counsel.
As a result of the case, Google is shutting the doors on its Google
Plus social network, which the company claims third-party apps that
integrated the platform onto their software were granted the
ability to view private information of its users through a
"glitch." The social network is expected to cease operations March
7, 2019.
"We found no evidence that any developer was aware of this bug, [or
that] any profile data was misused," Google said in an earlier
statement.[GN]
ALTA MESA: Block & Leviton Files Securities Class Action
--------------------------------------------------------
Block & Leviton LLP, a securities litigation firm representing
investors nationwide, informs investors that there has been a class
action lawsuit filed against Alta Mesa Resources, Inc. f/k/a Silver
Run Acquisition Corporation II ("Silver Run II" or the "Company")
(NASDAQ: AMR) and certain of its officers.
The Complaint that was filed in the Southern District of New York
alleges that in early 2018, Silver Run II issued a materially false
and misleading Definitive Merger Proxy Statement (the "Proxy") that
recommended shareholders vote in favor of an acquisition. As a
result of the false and misleading Proxy, Silver Run II
shareholders were unable to make an informed decision on whether or
not to redeem their shares and voted in favor of the acquisition on
February 6, 2018. The complaint alleges that subsequent to, and due
to the approval of the acquisition, the value of Silver Run II
Class A common shares has significantly declined.
If you held Silver Run II securities on January 22, 2018, the
record date to vote on the acquisition, you are encouraged to:
BLOCK & LEVITON LLP
155 Federal Street, Suite 400
Boston, MA 02110
Telephone: (617) 398-5660 phone
(888) 868-2385
Website: http://shareholder.law/silverrun
Email: info@blockesq.com [GN]
AMAZING HOME: Cedeno Seeks Unpaid Wages & Benefits
--------------------------------------------------
A case, ROSALIE MORAN CEDENO, individually and on behalf of all
other persons similarly situated who were employed by AMAZING HOME
CARE SERVICES, LLC, AMAZING HOME CARE PROVIDERS, INC. and INTERGEN
HEALTH, LLC, along with other entities affiliated or controlled by
AMAZING HOME CARE SERVICES, LLC, and AMAZING HOME CARE PROVIDERS,
INC., the Plaintiffs, v. AMAZING HOME CARE SERVICES, LLC, AMAZING
HOME CARE PROVIDERS, INC., and INTERGEN HEALTH, LLC and/or any
other related entities, the Defendants, Case 154440/2018 (N.Y. Sup.
Ct., Feb. 15, 2019), seeks to recover minimum wages, overtime
compensation, "spread of hours" compensation, reimbursement for
business expenses home for the benefit and convenience of the
Defendants, including purchasing and laundering of uniforms, as
well as damages arising from Defendants' breach of contract, which
they were deprived of, plus interest, attorneys' fees, and costs,
pursuant to New York Labor Law.
The action is brought on behalf of the Plaintiff and a putative
class of individuals are presently or were formerly employed by the
Defendants, to provide personal care, assistance, health-related
tasks and other home care services to Defendants' clients within
the State of New York.
According to the complaint, beginning in April 2012 and, continuing
through the present, the Defendants have maintained a policy and
practice of requiring Plaintiffs to regularly work in excess of 10
hours per day, without providing the proper hourly compensation for
all hours worked, including failing to pay the lawful minimum wage
rate for travel time between worksites, and overtime compensation
for all hours worked in excess of 40 hours in any given week, and
"spread of hours" compensation, the lawsuit says.[BN]
Attorneys for the Plaintiff and the Putative Class:
Lloyd R. Ambinder, Esq.
LaDonna M. Lusher, Esq.
Milana Dostanitch, Esq.
VIRGINIA & AMBINDER, LLP
40 Broad Street, Seventh Floor
New York, NY 10004
Telephone: (212) 943-9080
Facsimile: (212) 943-9082
E-mail: llusher@vandallp.com
- and -
Gennadiy Naydenskiy, Esq.
NAYDENSKIY LAW FIRM LLC
281 Summerhill Rd, Suite 210
East Brunswick, NJ, 08816
Telephone: 800 789-9396
Facsimile: 866 261-5478
E-mail: naydenskiylaw@gmail.com
AMERICAN RESIDENTIAL: "Kissick" Suit Alleges TCPA Violation
-----------------------------------------------------------
Daniel Kissick, on behalf of himself and all others similarly
situated v. American Residential Services, LLC, Case No.
2:19-cv-01460 (C.D. Calif., February 27, 2019), is brought against
the Defendant for violation of the Telephone Consumer Protection
Act (TCPA).
The Plaintiff brings this complaint to stop the Defendant's
practice of placing calls using an automatic telephone dialing
system to the cellular telephones of consumers without their prior
express written consent.
The Plaintiff Daniel Kissick is a resident of Whittier, California,
and a citizen of the State of California.
The Defendant American Residential Services, LLC is a corporation
organized under the laws of Delaware, with a principal place of
business at 965 Ridge Lake Boulevard, Suite 201, Memphis, TN 38120.
[BN]
The Plaintiff is represented by:
L. Timothy Fisher, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Tel: (925) 300-4455
Fax: (925) 407-2700
E-mail: ltfisher@bursor.com
ARIZONA: Faces Class Action Over Transgender Health Care
--------------------------------------------------------
Brad Poole, writing for Courthouse News Service, reported 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, Mr. 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," Mr.
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.
Mr. 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," Mr. 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.
B & B COLLECTIONS: Odom Sues over Debt Collection Practices
-----------------------------------------------------------
TROY ODOM, individually and on behalf of all others similarly
situated, Plaintiff v. B & B COLLECTIONS, INC.; and JOHN DOES 1-25,
Defendants, Case No. 2:19-cv-04394-ES-MAH (D.N.J., Feb. 1, 2019)
seeks to stop the Defendant's unfair and unconscionable means to
collect a debt. The case is assigned to Judge Esther Salas and
referred to Magistrate Judge Michael A. Hammer.
B & B Collections, Inc. is a company engaged in debt collection
services. [BN]
The Plaintiff is represented by:
Ben A. Kaplan, Esq.
280 Prospect Ave. 6G
Hackensack, NJ 07601
Telephone: (201) 803-6611
Facsimile: (866) 596-4973
E-mail: ben@chulskykaplanlaw.com
BIMBO BAKERIES: Court Conditionally Certifies Hadmack FLSA Suit
---------------------------------------------------------------
The United States District Court for the District of New Hampshire
issued an Order granting Plaintiffs' Motion for Conditional
Certification in the case captioned David Camp and Keith Hadmack,
on behalf of themselves and all others similarly situated,
Plaintiffs, v. Bimbo Bakeries USA, Inc. and Bimbo Foods Bakeries
Distribution, LLC, Defendants. Case No. 18-cv-378-SM. (D.N.H.).
David Camp and Keith Hadmack bring this wage and hour collective
action, asserting that defendants unlawfully treated them as
independent contractors when, in fact, they were employees.
As a consequence, say the plaintiffs, they were wrongfully denied
overtime pay, refused reimbursement for work-related expenses, and
subjected to unlawful withholdings from their pay. The parties
dispute whether plaintiffs (and similarly situated individuals) are
entitled to overtime pay under the FLSA.
Bimbo Bakeries contends that all of its distributors are
independent contractors and, therefore, not entitled to overtime.
Plaintiffs, on the other hand, contend that they are actually
employees, who were wrongfully denied overtime pay. As noted above,
plaintiffs seek conditional certification of a collective action
under the FLSA.
Conditional Certification
Courts within the First Circuit typically employ a two-step
approach to certification of collective actions under section
216(b) of the FLSA.
The first stage determines whether notice should be given to
potential collective action members and usually occurs early in a
case, before substantial discovery, based only on the pleadings and
any affidavits which have been submitted. At the first stage, the
plaintiff has the burden of showing a reasonable basis for her
claim that there are other similarly situated employees.
This is the second stage, and the court must then make a factual
determination as to whether there are similarly-situated employees
who have opted in. Factors relevant to the stage-two determination
include: factual and employment settings of the individual
plaintiffs, the different defenses to which the plaintiffs may be
subject on an individual basis, and the degree of fairness and
procedural impact of certifying the action as a collective action.
In support of their motion for conditional certification,
plaintiffs assert that all potential members of the collective are
required to execute a Distributor Agreement with defendants.
According to the plaintiffs, those Distributor Agreements are all
substantially similar at least in ways material to this litigation.
And, say plaintiffs, when viewed in their entirety, those
agreements make plain that distributors are actually employees,
rather than independent contractors. Plaintiffs also allege that
all potential members of the collective are subject to similar
policies, including defendants' substantial control over the
products that Distributors may sell, the price at which they sold
those products, the customers to whom they sold, and the fact that
defendants purport to serve as the agent of Distributors for
purposes of negotiating pricing with customers and pursuing
business opportunities for them.
The Plaintiffs have satisfied their modest burden to demonstrate a
reasonable basis for crediting the assertion that other aggrieved
individuals exist who are similarly situated to the plaintiffs in
relevant respects, given the claims and anticipated defenses. They
have adequately supported their claim that defendants unlawfully
maintain a company-wide policy of treating delivery drivers as
independent contractors, requiring those drivers to execute
substantially similar Distributor Agreements and failing to pay
those drivers at overtime rates when they work in excess of 40
hours per week.
But, say the defendants, that is not sufficient. The Plaintiffs,
they contend, are required to make an additional showing. That is,
they must identify some unspecified number of other distributors
(i.e., those to whom plaintiffs propose to give notice of this
action) who are actually interested in joining the action.
This is an issue on which there is substantial debate, even among
district courts in this circuit. Compare. On balance, the court
agrees that it is premature to require the plaintiffs to
demonstrate, before notice is given, that there are other potential
members of the collective who are interested in participating in
this litigation. Defendants have not produced contact information
for the potential opt-in plaintiffs.
The court concludes that the plaintiffs have adequately alleged
that there are other similarly situated persons, such that
conditional certification of a collective action to address their
potential claims under the FLSA is appropriate. Although the size
of the group to which the plaintiffs propose to give notice may be
substantial, and some individual plaintiffs may be barred from
recovering under one or more exemptions to the FLSA, those facts
give rise to issues best resolved at the second stage of the
preferred analysis.
Accordingly, the Plaintiffs' Motion for Conditional Certification
and the Issuance of Notice is granted and the court conditionally
certifies the following collective:
All individuals who executed a Distributor Agreement, either
on their own behalf or on behalf of a corporation or other entity,
and personally delivered products for Defendants in New England
from May 8, 2015 to the present.
A full-text copy of the District Court's February 4, 2019 Order is
available at https://tinyurl.com/y5fh6gqc from Leagle.com.
David Camp & Keith Hadmack, Plaintiffs, represented by Harold L.
Lichten -- hlichten@llrlaw.com -- Lichten & Liss-Riordan, PC, pro
hac vice, Matthew Thomson -- mthomson@llrlaw.com -- Lichten &
Liss-Riordan, PC, pro hac vice & Christopher B. Coughlin, Coughlin
Law Office, 35 India Street, Boston, MA, 02110
Bimbo Bakeries USA, Inc. & Bimbo Foods Bakeries Distribution, LLC,
Defendants, represented by William D. Pandolph
-wpandolph@sulloway.com -- Sulloway & Hollis PLLC, Michael J. Puma
-- michael.puma@morganlewis.com, Morgan Lewis & Bockius, pro hac
vice & Siobhan E. Mee -- siobhan.mee@morganlewis.com -- Morgan
Lewis & Bockius LLP, pro hac vice.
Bimbo Foods Bakeries Distribution, LLC & Bimbo Bakeries USA, Inc.,
Counter Claimants, represented by William D. Pandolph, Sulloway &
Hollis PLLC, Michael J. Puma, Morgan Lewis & Bockius & Siobhan E.
Mee, Morgan Lewis & Bockius LLP.
BROOKE ALEXANDER: Website not Accessible to Blind, Matzura Says
---------------------------------------------------------------
STEVEN MATZURA AND ON BE HALF OF ALL OTHER PERSONS SIMILARLY
SITUATED, the Plaintiffs, vs. BROOKE ALEXANDER, INC., the
Defendant, Case No. 1:19-cv-01247-LGS (S.D.N.Y., Feb. 8, 2019),
seeks permanent injunction to cause a change in Defendant's
corporate policies, practices, and procedures so that Defendant's
website at WWW.BAEDITIONS.COM will become and remain accessible to
blind and visually-impaired consumers.
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read website content using his
computer. 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 their 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.
Brooke Alexander, Inc. offers a wide selection of artworks by
leading artists.[BN]
The Plaintiff is represented by:
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, NY 10003
Telephone: 212 228 9795
Facsimile: 212 982 6284
E-mail: nyjg@aol.com
BULLSEYE GLASS: Reaches $6.5MM Settlement in Class Action Lawsuit
-----------------------------------------------------------------
Ericka Cruz Guevarra, writing for OPB News, reports that Bullseye
Glass has announced a $6.5 million settlement with plaintiffs in a
class action lawsuit against the Southeast Portland glass
manufacturer, which was accused of emitting unhealthy levels of
toxic heavy metals into the air.
Several people sued Bullseye in 2016 after raising concerns about
the health of people living near the glass-making facility.
The settlement ends the lawsuit.
Attorney fees and costs like expert witnesses will take up $2
million from the settlement. Another $1 million will pay for air
quality testing.
The rest will be divided up among residents for things like air
purifiers and soil testing.
Bullseye's continued operations undercut any sense of victory for
plaintiff Christian Miner, who lives a few blocks from the
manufacturer.
"The people of Southeast Portland are losing today. Bullseye is
gonna be open for business tomorrow," he said. "The people of
Portland, especially those closest, are going to walk away with
$600 or whatever it is."
Daniel Mensher, Esq. -- dmensher@kellerrohrback.com -- an attorney
for the plantiffs, was more upbeat.
"I'm confident because this is a pretty great settlement
agreement," he said. "Plaintiffs didn't get everything they wanted,
but that's part of the settlement process."
Roughly 2,100 households are involved in the suit, Mensher said.
They have until April 6 to file claims.
In a statement, Bullseye Glass said it had "mixed feelings" about
settling.
"However, once the insurance carriers provided the settlement
funds, we worked hard to include meaningful settlement terms that
would give our neighbors the peace of mind that Bullseye did not
harm their property," the statement reads.
Toxic airborne metals were revealed by environmental testing
conducted by the U.S. Forest Service at the time. State regulators
said Bullseye was operating legally, prompting regulators to
reconsider air quality regulations.
The Oregon Environmental Quality Commission unanimously approved
new rules in November that put a limit on the total health risk an
Oregon polluter can impose on the people who live and work near
their facilities. Regulators sought to close a gap in air toxics
regulation that they say contributed to pollution at Bullseye.
Toxic metals emitted from Bullseye prompted Gov. Kate Brown to
launch the Cleaner Air Oregon program in 2016. Regulators said
Oregon's existing air pollution regulations were only based on
federal rules that failed to consider risks to the health of locals
living near pollution centers.
Miner, one of the plaintiffs, said government officials' response
was lacking — forcing him and neighbors to take on Bullseye Glass
in court.
"What I saw was really just a total lack of leadership present by
any elected official and they were just pointing the finger," he
said.
Bullseye Glass says it plans to continue making glass in Portland
for years to come.[GN]
CARMAX AUTO: Removes McElhannon et al. Suit to N.D. California
--------------------------------------------------------------
The Defendant in the case of DEREK MCELHANNON; ALEENA IQBAL;
CHRISTOPHER SYHARATH; RUBEN SANTIAGO; and EMIL MILISCI,
individually and on behalf of all others similarly situated,
Plaintiffs v. CARMAX AUTO SUPERSTORES WEST COAST, INC.; CARMAX AUTO
SUPERSTORES CALIFORNIA, LLC; and DOES 1-50, inclusive, Defendants,
filed a notice to remove the lawsuit from the Superior Court of the
State of California, County of Alameda (Case No. HG18929561) to the
U.S. District Court for the Northern District of California on
February 1, 2019. The clerk of court for the Northern District of
California assigned Case No. 3:19-cv-00586-EDL. The case is
assigned to Elizabeth D. Laporte.
Carmax Auto Superstores West Coast, Inc. operates as a subsidiary
of CarMax Inc. The Comopany operates as a retailer of used vehicles
in the United States. CarMax, Inc. was founded in 1993 and is based
in Richmond, Virginia. [BN]
The Defendants are represented by:
Jack S. Sholkoff, Esq.
Jennifer L. Katz, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
400 South Hope Street, Suite 1200
Los Angeles, CA 90071
Telephone: (213) 239-9800
Facsimile: (213) 239-9045
E-mail: jack.sholkoff@ogletree.com
Jennifer.katz@ogletree.com
COMMONWEALTH FINANCIAL: Enchandia Sues over Debt Collection
-----------------------------------------------------------
JEFFREY ECHANDIA, individually and on behalf of all others
similarly situated, Plaintiff v. COMMONWEALTH FINANCIAL SYSTEMS,
INC.; and JOHN DOES 1-25, Defendants, Case No.
3:19-cv-04459-MAS-LHG (D.N.J., Feb. 2, 2019) seeks to stop the
Defendant's unfair and unconscionable means to collect a debt. The
case is assigned to Judge Michael A. Shipp and referred to
Magistrate Judge Lois H. Goodman.
Commonwealth Financial Systems, Inc., doing business as NCC,
operates as a collection agency. Commonwealth Financial Systems,
Inc. was formerly known as Northeast Credit and Collections. The
company was founded in 2001 and is headquartered in Dickson City,
Pennsylvania. [BN]
The Plaintiff is represented by:
Ben A. Kaplan, Esq.
280 Prospect Ave. 6G
Hackensack, NJ 07601
Telephone: (201) 803-6611
Facsimile: (866) 596-4973
E-mail: ben@chulskykaplanlaw.com
CORNING INCORPORATED: Court Won't Dismiss Discrimination Suit
-------------------------------------------------------------
The United States District Court for the Western District of New
York issued a Decision and Order denying Defendant's Motion to
Dismiss in the case captioned YULONDA WOODS-EARLY, Plaintiff, v.
CORNING INCORPORATED, Defendant. Case No. 18-CV-6162-FPG.
(W.D.N.Y.).
Plaintiff Yulonda Woods-Early brings this employment discrimination
action against Defendant Corning Incorporated. She alleges that
Defendant engaged in race and color discrimination in violation of
Title VII of the Civil Rights Act (Title VII) and the New York
State Human Rights Law (NYSHRL).
The Defendant has filed a motion to dismiss under Rule 12(b)(6),
requesting that the Court dismiss the Plaintiff's class allegations
and all claims based on the Defendant's alleged failure to promote
the Plaintiff. In support, the Defendant argues that (1) the
proposed classes lack commonality under Rule 23(a)(2) (2) the
proposed classes cannot satisfy any of the three alternative
conditions set forth in Rule 23(b) and (3) the Plaintiff has not
sufficiently pleaded a claim based on Defendant's failure to
promote her.
A complaint will survive a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6) when it states a plausible claim for
relief. A claim for relief is plausible when the plaintiff pleads
sufficient facts that allow the Court to draw the reasonable
inference that the defendant is liable for the alleged misconduct.
In considering the plausibility of a claim, the Court must accept
factual allegations as true and draw all reasonable inferences in
the plaintiff's favor.
Commonality
The Defendant first argues that the class allegations are
inadequate because the proposed classes lack commonality. Relying
on Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), Defendant
contends that, as a general matter, employment-discrimination
claims challenging managerial discretion do not satisfy the
requirement that there be questions of law or fact common to the
class. Defendant disregards the allegations concerning the
executive brain trust calling such allegations conclusory and
implausible and asserts that Plaintiff is essentially challenging
the discretion conferred on managers as part of the performance
evaluation process. Plaintiff counters that the amended complaint
clearly alleges that Defendant maintains a common, discriminatory
policy in which a small group of top executives assigns all Final
ratings and ensures a forced distribution resulting in exactly 10%
of Professionals being designated as
Emerging Talent.
Rule 23(a) sets out four threshold requirements for certification:
(1) the class is so numerous that joinder of all members is
impracticable (2) there are questions of law or fact common to the
class (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class and(4) the
representative parties will fairly and adequately protect the
interests of the class.
Here, the Plaintiff alleges that an executive brain trust has
unfettered discretion to determine each employee's final rating.
Not only that, this singular and cohesive group has an incentive to
manipulate ratings namely, to limit the number of employees who are
designated as Emerging Talent. Plaintiff also alleges that the
manner in which this group exercises discretion has had the effect,
if not the purpose, of barring Black and African-American
professional employees from advancing to higher pay bands and
thereby receiving additional pay, bonuses, and networking
opportunities. These allegations provide the glue to bind the
otherwise disparate pay-and-promotion decisions of potential class
members. At this early stage, the Court cannot conclude that it
would be impossible to certify the proposed classes even after
discovery.
To be sure, the amended complaint appears to present a few
diverging theories of liability. On the one hand, Plaintiff alleges
that the executive brain trust controls the determination of final
ratings and thus caused the injuries of which she complains. In her
opposition to the motion to dismiss, Plaintiff goes as far to say
that the discrete decisions and biases of individual middle
managers are not even relevant. On the other hand, and as Defendant
points out, the amended complaint also challenges the discretion
afforded to immediate supervisors under the performance evaluation
process. Indeed, Plaintiff alleges in detail the ways in which her
immediate supervisors manipulated the performance evaluation
process to her detriment. These latter allegations seem to be
premised on a claim that immediate supervisors did have some level
of control or influence over the performance evaluation process.
Nevertheless, the Court cannot agree with Defendant that
Plaintiff's allegations regarding the executive brain trust are so
implausible that they must be disregarded. Plaintiff makes
specific, coherent allegations concerning the existence of the
brain trust and its role within Defendant's performance evaluation
process. The Court can discern nothing facially implausible with a
claim that a small group of executives controls the performance
evaluation process for professional employees and sets final
ratings with an eye towards limiting the pool of candidates for
promotions and other employee benefits.
The Court will not strike the class allegations on the basis that
it will be impossible for Plaintiff to demonstrate commonality.
Rule 23(b)
The Defendant next argues that Plaintiff's class allegations will
inevitably fail because the proposed classes cannot satisfy any of
the alternative criteria set forth in Rule 23(b).
If a plaintiff seeking class certification demonstrates by a
preponderance of the evidence that the proposed class meets the
requirements set out in Rule 23(a), then the court must determine
whether the action satisfies one of the criteria of Rule 23(b).
Under Rule 23(b), a party may only maintain a class action by
demonstrating that: (1) bringing the claims as separate actions
would create a risk of inconsistent or adverse adjudications (2)
the party opposing the class has acted or refused to act on grounds
that apply to the class in general, making injunctive or
declaratory relief appropriate for the class as a whole or (3)
common questions of fact or law predominate over any individual
questions and a class action is a superior method of efficiently
and fairly adjudicating the matter.
The Defendant asserts that Plaintiff can satisfy none of these
criteria. First, Defendant argues that Rule 23(b)(1) does not apply
to discrimination cases like here where plaintiffs routinely
prosecute separate actions. Second, Defendant contends that Rule
23(b)(2) does not apply where the proposed class seeks monetary
awards for backpay, compensatory, and punitive damages. Third,
Defendant asserts that Rule 23(b)(3) cannot be satisfied because
individual issues will necessarily predominate over common ones.
Specifically, Defendant notes that it will be allowed to present
individualized defenses to each alleged instance of discrimination
to show that the manager exercised discretion in a legitimate,
non-discriminatory manner. Such defenses are particular to each
manager and class member. Defendant also asserts that each class
member will have individualized damages issues. For the same
reasons, Defendant argues that a class action will not be a
superior method to adjudicate the controversy.
The Court declines to strike the class allegations based on these
arguments. As an initial matter, Defendant's arguments concerning
predominance and superiority are premised on its position that the
Court must disregard Plaintiff's allegations about the executive
brain trust. Because the Court will not do so at this early stage,
Defendant's assertion that the proposed classes will necessarily
challenge the individualized discretionary decisions of hundreds of
managers falls flat. Regardless, the Court considers it premature
to assess predominance and superiority. A court must engage in a
careful, qualitative balancing of the relevant claims and issues to
determine whether common issues predominate over individual ones.
Likewise, assessing superiority is a fact-specific inquiry. Under
these circumstances, it would be difficult, if not impossible, to
fairly and fully engage in these inquiries solely on the basis of
Plaintiff's amended complaint. Because Defendant presents no
threshold arguments challenging the Rule 23(b)(3) factors but
rather, merely raises the sorts of objections that can and should
be addressed at the class certification stage the Court will not
consider them at this time.
The motion to dismiss will not be granted on this ground.
Sufficiency of Plaintiff's Claims
The Defendant appears to argue that the amended complaint is
insufficient because it fails to connect the allegedly
discriminatorily low performance ratings to any tangible form of
adverse action by Defendant. Defendant notes that Plaintiff does
not plead any facts to suggest that she applied for a particular
promotion, was qualified for that promotion and was denied the
promotion under circumstances giving rise to an inference of
discrimination.
Here, the Plaintiff alleges that the executive brain trust
exercises its discretion to assign final performance ratings in a
manner that, whether intentionally or unintentionally, has the
effect of depressing the final ratings of black and
African-American employees. An employee's advancement to pay band D
which results in increased salary, bonuses, and networking
opportunities is conditioned on the employee receiving final
ratings of 4 in two consecutive years.
Accordingly, viewing the facts in the light most favorable to her,
Plaintiff articulates an adequate link between the discriminatory
actions of the executive brain trust and tangible adverse impacts
to black and African-American employees, including herself. The
mere fact that Plaintiff does not identify a particular promotion
that Defendant denied her is not fatal to her claim.
Accordingly, Defendant Corning Incorporated's Motion to Dismiss is
denied.
A full-text copy of the District Court's February 4, 2019 Decision
and Order is available at https://tinyurl.com/yxdv4wgy from
Leagle.com.
Yulonda Woods-Early, on behalf of herself and others similarly
situated, Plaintiff, represented by Innessa Melamed Huot --
ihuot@faruqilaw.com -- Faruqi & Faruqi, LLP.
Corning Incorporated, Defendant, represented by Michael S.
Burkhardt -- michael.burkhardt@morganlewis.com -- Morgan, Lewis &
Bockius LLP & Stephen J. Jones, Nixon Peabody LLP.
DAVITA HEALTHCARE: Court Decertifies Oldershaw FLSA Class
---------------------------------------------------------
The United States District Court for the District of Colorado
issued an Opinion and Order granting Defendant's Motion for
Decertification in the case captioned KELSEY OLDERSHAW, ELINA
NAVARRO, JANE STANT, and JAYMIE STEVENS, individually and on behalf
of others similarly situated, Plaintiff, v. DAVITA HEALTHCARE
PARTNERS, INC.; and TOTAL RENAL CARE INC., Defendants. Civil Action
No. 15-cv-01964-MSK-NYW. (D. Colo.).
DaVita operates a business performing kidney dialysis and related
services for patients in numerous facilities around the country.
The named Plaintiffs are four DaVita employees. They brought this
action alleging, among other things, that DaVita failed to pay them
and other employees overtime pay for hours they worked over 40 in a
week, in violation of the Fair Labor Standards Act (FLSA).
28 U.S.C. Section 216(b) allows for an FLSA claim to be maintained
against any employer by any one or more employees for and in behalf
of himself or themselves and other employees similarly situated,
but provides that no employee shall be a party plaintiff to any
such action unless he gives his consent in writing to become such a
party and such consent is filed in the court in which such action
is brought.
Courts have struggled with devising and describing the mechanisms
to be used to implement the collective action process contemplated
by Section 216(b). The seminal 10th Circuit case addressing the
topic is Thiessen v. General Electric Capital Corp., 267 F.3d 1095,
1102 (10th Cir. 2001). In Thiessen, the 10th Circuit approved
(among several options) of the use of a two-stage process. First,
the trial court makes a preliminary and substantially deferential
notice stage assessment of similarity, binding together the
collective for the limited purposes of giving affected co-workers
notice of the suit and an opportunity to opt in.
The question presented to the Court is whether, under these
circumstances, the opt-in Plaintiffs are similarly situated to the
named Plaintiffs. Consistent with the discussion above, this Court
considers this question in light of the Thiessen factors.
Factual and employment settings
This factor examines several aspects of the various Plaintiffs'
claims for similarities.
The Court begins with the observation that all four of the named
Plaintiffs had employment settings that are substantially different
than that of the typical opt-in Plaintiff to the extent one can
even describe a typical opt-in Plaintiff in the circumstances
presented here. Ms. Oldershaw was not employed at a facility, but
instead at DaVita's headquarters, a circumstance she shares only
with two opt-in Plaintiffs. There is some question as to whether
Ms. Navarro was an employee covered by the FLSA at all; to the
extent that she is, unlike the opt-in Plaintiffs, she was her own
supervisor and thus cannot blame DaVita for discouraging her from
reporting of overtime. Ms. Stant and Ms. Stevens are not subject to
the Plaintiffs' facility-level budgeting theory because they took
their instructions from someone other than a facility
administrator, they reported their working time across numerous
facilities each week, and there is no evidence as to any DaVita
facility budgeting policies applied to their work anyway. The
disparity between the employment situations of the named Plaintiffs
and those of the facility-based opt-in Plaintiffs who reported to
only one facility, performing direct patient care work under the
direction of a single administrator, is so stark that this as to
render them dissimilar under Thiessen.
Giving due deference to the Plaintiffs' unifying theory, this Court
is reluctant to treat all the named Plaintiffs and the opt-in
Plaintiffs as similarly situated simply because DaVita budgets for
its labor hours. Certainly, there may be circumstances where an
employer's budgeting is so aggressive and unrealistic, and the
punishments for failing to meet those budgets so punitive, that a
court might find that the employer effectively forces its employees
to work off-the-clock. But, at least in the abstract, the notion of
an employer budgeting for labor costs and encouraging, even perhaps
strongly, its managers to attempt to keep overtime expenses to a
minimum is hardly unusual in the American workplace. If employees
need only show that their employer imposes budgets for labor costs
in order to obtain certification of a single, broadly-disparate
collective FLSA action, the purpose of a certification requirement
at all would be rendered effectively meaningless; nearly every
collective would be certified.
The DaVita's budgeting practices appears to give each facility
administrators some degree of discretion in deciding how to
allocate that available hours among the facility's employees and
moves the locus of decision-making with regard to overtime from
DaVita's corporate headquarters down to each individual facility
and individual administrator. This, in turn, demonstrates the
absence of a single, overarching policy that binds a collective of
employees from numerous facilities with numerous different
administrators into a cohesive whole.
The Court finds that the Plaintiffs have not come forward with
significant evidence that suggests that each Plaintiffs shares
similar employment situations to support treating all Plaintiffs as
sharing a collective claim.
Individualized defenses
In addition, the Court finds that, because the proposed collective
is so broad and diffuse, there is great risk that the breadth of
potential individualized defenses would overwhelm the efficiencies
of proceeding in a collective action.
FLSA overtime claims offer an employer two primary defenses. First,
the burden is on the employee to show that the employer had actual
or constructive knowledge that the employee was working overtime
hours without compensation. Here, questions about DaVita's
knowledge of many of the Plaintiffs' overtime work would be highly
individualized. Many of the Plaintiffs never bothered to ask their
administrator to approve overtime work because the employees simply
assumed through understandings or atmospheres or inferences or
other forms of unspecific gestalts that they should not be
reporting their overtime work to their supervisors. This raises the
possibility that DaVita might not have even been aware of such
work, particularly work performed off-the-clock in exigent
circumstances (where the administrator might not be aware that the
work was being performed off-the-clock) and unreported work
performed from home where the administrator might not be aware that
work was being performed at all. This presents the risk that
extensive inquiry into the circumstances under which each opt-in
Plaintiff's administrator was aware of each instance of that opt-in
Plaintiff working off-the-clock will be necessary, overwhelming any
efficiencies of trying this matter collectively.
Second, although the FLSA calls for automatic liquidated damages,
employers may attempt to avoid such damages by showing that they
acted in good faith in attempting to comply with the FLSA. It is
undisputed that DaVita maintains an express policy prohibiting
off-the-clock work, and there is some evidence that administrators,
including Ms. Navarro and Ms. Stant, attempted to enforce that
policy. It is also apparently undisputed that DaVita paid all
overtime that employees actually reported. Although the Court need
not resolve the issue at this time, it is arguable that these
policies, if sufficiently communicated and applied, could suffice
to show DaVita's good faith. Many of the Plaintiffs testified to
varying levels of knowledge of DaVita's off-the-clock policy,
raising the possibility that a considerable portion of trial of a
collective action would devolve into extended inquiry from each
Plaintiff about their own individual familiarity with those
policies and their particularized reasons for choosing not to
follow them.
This Court is persuaded that there are significant individualized
defenses that DaVita can reasonably be expected to develop given
the broad composition of the current collective.
Fairness and procedural considerations
The Court freely acknowledges that there is expediency in trying as
many as 70 Plaintiffs' claims in a single proceeding, rather than
inividually or on a series of smaller trials. And there is much to
recommend allowing Plaintiffs to band together to vindicate mostly
low-value claims that might otherwise not be pursued if
individualized proceedings were required.
At the same time, much of the preceding discussion highlights the
considerable obstacles that may prevent a full and fair single
trial of all Plaintiffs' claims as currently certified. Were the
Plaintiffs prepared to propose a group of smaller, more
similarly-situated collectives — e.g.those limited to a specific
administrator known to have commanded or encouraged off-the-clock
work — the Court might weigh this factor differently. But the
Plaintiffs have neither suggested the option of breaking the case
into smaller, more discrete collectives, nor provided the Court
with sufficiently granular facts to allow the Court to do so on its
own. Rather, the Plaintiffs have presented the question of
decertification as an all-or-nothing proposition. Faced with that
scenario, the Court concludes that concerns of fairness and
procedural complications tip against continued certification of the
current collective as a whole.
Accordingly, the Court finds that the Thiessen factors all favor
decertification at this second stage. Although the Court may
decertify a collective in a number of ways, the most common remedy
is the dismissal without prejudice of the FLSA claims of the opt-in
Plaintiffs, leaving only the original named plaintiffs to proceed
on their individual claims. Subject to the concerns stated above
that the named Plaintiffs themselves are improperly joined to one
another, the Court finds such an approach appropriate here. Each of
the opt-in Plaintiffs are free to bring their own individual claims
in separate suits, or to seek to band together in more
precisely-focused collectives Accordingly, the Court will dismiss
without prejudice the claims of each of the opt-in Plaintiffs,
leaving only Ms. Oldershaw, Ms. Navarro, Ms. Stant, and Ms.
Stevens' FLSA claims to proceed to trial.
A full-text copy of the District Court's February 4, 2019 Opinion
and Order is available at https://tinyurl.com/y63sacy5 from
Leagle.com.
Kelsey Oldershaw, individually and on behalf of others similarly
situated, Plaintiff, represented by Rebekah Frances Stern --
rebekah@ramoslaw.com -- Ramos Law, LLC, Brian Andrew Calandra --
brian@ramoslaw.com -- Ramos Law, LLC, Gretchen Elizabeth Lipman,
Gretchen E. Lipman, LLC, Ronald Lee Wilcox, Wilcox Law Firm, LLC &
Colleen Therese Calandra -- colleen@ramoslaw.com -- Ramos Law,
LLC.
DaVita Healthcare Partners, Inc., Defendant, represented by Amanda
A. Simpson -- Amanda.Simpson@jacksonlewis.com -- Jackson Lewis,
P.C., David Anthony Nenni -- David.Nenni@jacksonlewis.com --
Jackson Lewis, P.C., Dorothy Diane McDermott --
Dorothy.McDermott@jacksonlewis.com -- Jackson Lewis, P.C., Eric R.
Magnus -- Eric.Magnus@jacksonlewis.com -- Jackson Lewis, P.C.,
Melisa Hallie Panagakos -- Melisa.Panagakos@jacksonlewis.com --
Jackson Lewis, P.C., Stephanie Leigh Adler-Paindiris --
Stephanie.Adler-Paindiris@jacksonlewis.com -- Jackson Lewis, P.C. &
Veronica Thea Von Grabow -- Veronica.vonGrabow@jacksonlewis.com --
Jackson Lewis, P.C.
Total Renal Care Inc., Defendant, represented by Amanda A. Simpson,
Jackson Lewis, P.C., David Anthony Nenni, Jackson Lewis, P.C.,
Dorothy Diane McDermott, Jackson Lewis, P.C., Eric R. Magnus,
Jackson Lewis, P.C. & Veronica Thea Von Grabow, Jackson Lewis,
P.C..
DBV TECHNOLOGIES: Wolf Haldenstein Adler Files Securities Lawsuit
-----------------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP announces that a class
action lawsuit has been filed in the United States District Court
for the District of New Jersey on behalf of investors that acquired
DBV Technologies S.A. ("DBV Technologies" or the "Company")
(NASDAQ: DBVT) American Depositary Receipts ("ADR's") between
October 22, 2018 and December 19, 2018, inclusive (the "Class
Period").
Shareholders who purchased ADR's of DBV Technologies S.A are urged
to contact the firm immediately at classmember@whafh.com or (800)
575-0735 or (212) 545-4774. You may obtain additional information
concerning the action on our website, www.whafh.com.
If you have incurred losses in the ADR's of DBV Technologies S.A.,
you may, no later than March 18, 2019, request that the Court
appoint you lead plaintiff of the proposed class. Please contact
Wolf Haldenstein to learn more about your rights as an investor in
DBV Technologies S.A.
The filed Complaint alleges that throughout the Class Period,
Defendants made materially false and misleading statements and/or
failed to disclose that:
-- DBV Technologies' BLA for Viaskin Peanut failed to provide
the FDA with sufficient data on manufacturing procedures and
quality controls;
-- consequently, DBV Technologies would have to withdraw their
BLA for Viaskin Peanut; and
-- as a result, defendants' statements about DBV Technologies'
business, operations, and prospects were materially false and/or
misleading and/or lacked a reasonable basis at all relevant times.
On December 19, 2018, DBV Technologies revealed that, following
discussions with the U.S. Food and Drug Administration ("FDA"), its
Biologics License Application ("BLA") for Viaskin Peanut was
voluntarily withdrawn.
According to the Company, the FDA communicated that "the level of
detail with regards to data on manufacturing and quality controls
was insufficient in the BLA." On this news, DBV Technologies' share
price fell $8.39, or nearly 60%, to close at $5.76 on December 20,
2018.
Kevin Cooper, Esq.
Gregory Stone
Director of Case and Financial Analysis
Wolf Haldenstein Adler Freeman & Herz LLP
Telephone: (800) 575-0735
(212) 545-4774
Email: gstone@whafh.com
kcooper@whafh.com
classmember@whafh.com [GN]
DC AUTO: Faces Suit Over Alleged Violation of Labor Laws
--------------------------------------------------------
Autobody News reports that the Riverside, CA, labor law attorneys
at Blumenthal Nordrehaug Bhowmik De Blouw LLP filed a class action
lawsuit against DC Auto, Inc., alleging that the company failed to
lawfully provide meal and rest periods and pay their California
employees minimum wage.
The class action lawsuit against DC Auto, Inc. is currently pending
in the San Bernardino County Superior Court, Case No.
CIVDS1807525.
The lawsuit filed against DC Auto, Inc. by labor law attorneys at
Blumenthal Nordrehaug Bhowmik De Blouw LLP, alleges the defendant's
meal period policies and practices were unlawful because plaintiffs
and other California class members were far too overbooked and
overworked to take a timely, off-duty 30-minute meal period. The
lawsuit further alleges that the failure of DC Auto, Inc. to
provide the legally required meal and rest period is evidenced by
the company's business records.
Additionally, the lawsuit alleges that DC Auto, Inc. does not
accurately record all missed meal and rest periods and fails to pay
minimum wages due for all hours worked. Under California law, every
employer shall pay to each employee, on the established pay day for
the period involved, not less than the applicable minimum wage for
all hours worked in the payroll period, whether the remuneration is
measured by time, piece, commission or otherwise.[GN]
DETROIT, MI: Court OKs Summary Judgment in Firefighters' Suit
-------------------------------------------------------------
The United States District Court for the Eastern District of
Michigan, Southern Division, issued an Opinion and Order granting
Union's Motion for Summary Judgment in the case captioned Erick
Peeples, et al., Plaintiffs, v. City of Detroit, et al.,
Defendants. Civil Action No. 13-13858. (E.D. Mich.).
The Union filed the instant summary judgment motion, that addresses
the merits of the Plaintiffs' Title VII claims against the Union.
The Plaintiffs are eleven firefighters who were laid off by the
City of Detroit during a reduction in force. The Plaintiffs were
recalled to work 80 days after being laid off and their labor union
successfully grieved their layoffs, securing a settlement under
which the City agreed to a make-whole award of backpay for each
Plaintiff. The Plaintiffs then filed this action, asserting Title
VII race discrimination claims against the City and their Union.
This Court previously granted summary judgment in favor of both the
City and the Union. This Court's rulings as to the City were
affirmed on appeal. But the Sixth Circuit changed its position on
the issue of whether a union has to show a breach of the duty of
fair representation in order to proceed with a Title VII claim.
Because this Court had granted summary judgment in favor of the
Union on that issue, without considering the merits of the Title
VII claims against the Union, the case was remanded as to the
claims against the Union. Following remand, the Union filed a new
summary judgment motion.
The Plaintiffs allege that the Union subjected them to disparate
treatment on account of race, in violation of Title VII of the
Civil Rights Act of 1964.
Under Title VII, it is an unlawful for a labor organization to
cause or attempt to cause an employer to discriminate against an
individual.
It is now undisputed that the familiar Title VII burden-shifting
framework applies to Plaintiffs' Title VII claims against the
Union. At the summary judgment stage, a plaintiff must adduce
either direct or circumstantial evidence to prevail on his
discrimination claim.
Direct Evidence
If the Plaintiffs can establish direct evidence of discrimination,
then they survive summary judgment and need not go though the
McDonnell Douglas burden-shifting analysis. Rowan v. Lockheed
Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004). As
explained in Peeples:
Direct evidence is that evidence which, if believed, requires the
conclusion that unlawful discrimination was at least a motivating
factor in the employer's actions. Id. Inferences are not permitted.
Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th
Cir. 2004).
Plaintiffs' brief references their having direct evidence but they
do not come out and specify what they believe is the direct
evidence that could support their claims. So this Court will
address all references to evidence that the Plaintiffs may be
trying to characterize as direct evidence.
The Plaintiffs again appear to argue that direct evidence exists as
to a City employee named Roger Williams having made a statement
about the union not wanting to lay those white boys off.
The Plaintiffs direct the Court to one page of Plaintiff McCloud's
deposition testimony that Mr. Poe told me that Roger Williams said
to him that the DFFA didn't want to lay those white boys off and to
one page of Plaintiff Rivera's deposition testimony that he did
hear when Poe had met with Roger Williams and that Roger Williams
had mentioned to him that we were getting laid off to save the
white boys. But once again, the cited deposition testimony is
inadmissible hearsay.
The Plaintiffs may believe that testimony from Secretary Singleton
constitutes direct evidence, as their brief states that she
admitted to Plaintiff Peeples that the initial layoff notices sent
were rescinded in order to save the 2004 Class (largely composed of
white fire fighters with no added City seniority) from being laid
off again. The cited evidence is Peeples' deposition transcript at
pages 114-116, wherein Peeples testified that, although no one from
the executive board had said anything about race to Singleton, she
drew the conclusion that someone was trying to protect the white
boys, based on the races of persons who were impacted by the
layoffs. That does not constitute direct evidence.
The Court finds that the Plaintiffs have not submitted any direct
evidence to support their Title VII claims against the Union.
Circumstantial Evidence And A Reduction In Force
As explained in Peeples, to do so the McDonnell Douglas burden
shifting framework requires that Plaintiffs prove four elements:
(1) they were members of a protected class (2) they suffered
adverse employment actions (3) they were qualified for their
positions and (4) they were replaced by someone outside the
protected class or were treated differently than
similarly-situated, non-protected employees. The burden would then
shift to the Union to articulate some legitimate, nondiscriminatory
reason for the challenged employment decision. If the Union does
so, then Plaintiffs need to demonstrate the reason given was
pretextual.
As was the case with the Title VII claims asserted against the
City, the parties agree that only the fourth element is at issue.
Here, the Plaintiffs have not attempted to present evidence that
could establish that Plaintiffs had superior qualifications than
their non-protected counterparts who were not laid off. Nor have
Plaintiffs presented any admissible evidence of the Union having
made any statements indicative of a discriminatory motive.
Rather, the Plaintiffs have mischaracterized the evidence they rely
on, and continue to rely on inadmissible hearsay, and testimony
about speculation and rumors. That is insufficient. The Court finds
that Plaintiffs have failed to meet their burden of establishing
the forth element of a prima facie case in this RIF case.
Request For Fees And Expenses Under Section 1927 And/Or Title VII
The Union asks this Court to award fees, expenses, and costs
incurred by DFFA since August 28, 2018, when plaintiffs and their
counsel insisted on prolonging this litigation after the Sixth
Circuit held that plaintiffs' cursory assertion of discrimination
is evidence-free and does not pass muster under Title VII. The
Union asks this Court to award post-remand fees, expenses, and
costs to DFFA payable by plaintiffs under Title VII and by
plaintiffs' counsel under Section 1927 and to direct further
proceedings to quantify the appropriate award.
28 United States Code Section 1927 is titled, Counsel's liability
for excessive costs" and provides:
Any attorney or other person admitted to conduct cases in any court
of the United States or any Territory thereof who so multiples the
proceedings in any case unreasonably and vexatiously may be
required by the court to satisfy personally the excess costs,
expenses, and attorneys' fees reasonably incurred because of such
conduct.
Here, the Court does not find that there is a showing of more than
incompetence and declines to sanction Plaintiffs' counsel under
Section 1927.
The Court also concludes that the Union has not shown that an award
of attorney fees against the Plaintiffs themselves is warranted in
this case. Such awards against Title VII plaintiffs are rare, and
this Court does not believe one is warranted here.
Accordingly, the Court orders that the Union's Motion for Summary
Judgment is granted.
A full-text copy of the District Court's February 4, 2019 Opinion
and Order is available at https://tinyurl.com/y6bh5dhs from
Leagle.com.
Erick Peeples, Perry Anderson, Vincent Fields, Arnold Freeman,
Ralph Glenn, Jr., Jamal Jennings, Lee Jones, Anthony McCloud,
Exander Poe, David Rivera & Samuel Shack, Plaintiffs, represented
by Dennis R. Thompson -- tmpsnlaw@sbcglobal.net -- Thompson &
Bishop Law Offices & Bruce B. Elfvin -- bruce@ekrtlaw.com -,
Elfvin, Klingshirn, Royer & Torch, LLC.
City of Detroit, Law Department, Defendant, represented by Heidi J.
Gehart -- heidi.gehart@kitch.com -- Kitch Drutchas Wagner Valitutti
& Sherbrook PC, Jason McFarlane , City of Detroit Law Department &
Megan B. Boelstler -- mbb@legghioisrael.com -- Legghio and Israel,
P. C.
International Association of Firefighters Local 344, Defendant,
represented by Alidz Oshagan -- aoshagan@wwdlaw.com -- Legghio and
Israel, P.C., Christopher P. Legghio -- israel@legghioisrael.com --
Legghio & Israel, P.C. & Megan B. Boelstler, Legghio and Israel, P.
C..
DSV AIR: Pitarro Suit Moved to Northern District of California
--------------------------------------------------------------
A case, MAYA PITARRO, individually and on behalf of others
similarly situated, the Plaintiff, v. DSV AIR & SEA, INC., a
Delaware corporation; UTI UNITED STATES, INC., a New York
corporation; and DOES 1 through 50, inclusive, Case No.
CGC-18-571672 (Filed Nov. 29, 2018), was removed from the San
Francisco County Superior Court to the U.S. District Court for the
Northern District of California on Feb. 15, 2019. The Northern
District of California Court Clerk assigned Case No. 3:19-cv-00849
to the proceeding.
The complaint alleges nine causes of action on behalf of the
Plaintiff and all similarly situated individuals, including:
failure to provide meal periods; failure to authorize and permit
rest breaks; failure to pay minimum wages; failure to pay overtime
wages; failure to pay all wages due to discharged and quitting
employees; failure to furnish accurate itemized wage statements;
failure to maintain required records; failure to indemnify
employees for necessary expenditures incurred in discharge of
duties; and unfair and unlawful business practices, under the Labor
Code's Private Attorneys General Act, the lawsuit says.
DSV Air & Sea Inc. provides transport and logistics services in the
United States and internationally. It offers air, sea, and land
freight forwarding services; and
consolidating/assembly/distribution, non-vessel operating common
carrier, project forwarding/charter and part charter, hazmat cargo
handling, export and import, and federal maritime commission
services.[BN]
Attorneys for the Defendants:
Annie Lau, Esq.
Anthony E. Guzman II, Esq.
FISHER & PHILLIPS LLP
One Embarcadero Center, Suite 2050
San Francisco, CA 94111
Telephone: (415) 490-9000
Facsimile: (415) 490-9001
E-mail: alau@fisherphillips.com
aguzman@fisherphillips.com
EATON GROUP: Hays FDCPA Settlement Has Preliminary Approval
-----------------------------------------------------------
The United States District Court for the Middle District of
Louisiana issued a Ruling and Order granting Joint Motion for
Preliminary Approval of Class Action Settlement in the case
captioned LINDSAY HAYS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED, v. EATON GROUP ATTORNEYS, LLC, AND MIDLAND
FUNDING, LLC. Civil Action No. 17-88-JWD-RLB. (M.D. La.).
Before the Court is the motion by Plaintiff Lindsay Hays,
individually and as a representative of the class of persons
defined below in Paragraph 3(a) of the proposed class settlement
agreement and Eaton Group Attorneys, LLC to (i) enter an order
which preliminarily approves the Class Settlement Agreement.
The Plaintiff alleges in her pleadings that Defendant committed
Fair Debt Collection Practices Act (FDCPA) violations by: (1)
making false, deceptive, and misleading representations in
connection to the collection of a debt and (2) using unfair and
unconscionable means to collect or attempt to collect a debt.
SUMMARY OF THE SETTLEMENT TERMS
Settlement Class. All persons in the State of Louisiana who
received a collection letter from Defendant offering to discuss a
voluntary repayment plan in connection to a signed consent judgment
and/or the disclosure of personal, financial, employment, and/or
income information between February 15, 2016 and February 15, 2017.
There are approximately 1051 persons that fall within this class.
Relief to Plaintiff. Defendant through its insurer, agrees to pay
$2,500.00 to Plaintiff for her damages and her service as the Class
Representative.
Relief to Settlement Class. Defendant, through its insurer will
create a class settlement fund of $7,000.00 (Class Recovery), which
will distribute pro rata among Class members who do not exclude
themselves and who timely return a valid claim form (Class
Claimants). The term pro rata shall mean a distribution percentage
based upon the $7,000.00 Class Recovery divided by the total amount
of claims submitted by persons who do not exclude themselves and
who timely submit a claim form.
Attorneys' Fees and Costs. Counsel for Plaintiff and the Class
shall petition the Court for approval of an award of fees in the
amount of $22,500.00. Pending the Court's approval, Defendant's
insurer shall pay counsel for Plaintiff and the Class that amount
which the Court deems reasonable, not to exceed $22,500.00, as
attorneys' fees. Defendant's insurer shall also pay all costs
incurred by counsel for Plaintiff and all costs related to class
notice and administration.
CLASS CERTIFICATION LEGAL STANDARD AND APPLICATION.
Under Rule 23(a), the party seeking certification bears the burden
of establishing four threshold requirements: (1) the class is so
numerous that joinder of all members is impracticable (2) there are
questions of law or fact common to the class (3) the claims or
defenses of the representative party are typical of the claims or
defenses of the class, and (4) the representative parties will
fairly and adequately protect the interests of the class. The
certification requirements of Rule 23 generally apply when
certification is for settlement purposes.
Solely for the purposes of this motion and to effectuate the
proposed settlement, Defendant does not dispute that the Settlement
Class should be certified.
Rule 23(a)(1), Numerosity: Rule 23(a) requires that the class be so
large that joinder of all members is impracticable. To satisfy this
requirement, a plaintiff must ordinarily demonstrate some evidence
or reasonable estimate of the number of purported class members.
Based upon information received from Defendant, Class members have
been specifically identified and the size of the Settlement Class
exceeds one thousand, which is sufficient to satisfy the numerosity
requirement of Rule 23(a)(1).
Rule 23(a)(2) Commonality: Commonality is demonstrated when the
claims of all class members depend upon a common contention that is
capable of class wide resolution. Even where individual class
members may not be identically situated, commonality exists where a
question of law linking class members is substantially related to
the resolution of the litigation M.D. ex rel Stukenberg v. Perry,
675 F.3d 832, 839-40 (5th Cir. 2012).
The Court finds that there are common questions of law or fact
affecting the Class, and these questions include, but are not
limited to: (a) whether Defendant's form collection letter, sent to
all Class members, violated the FDCPA (b) whether Plaintiff and the
other Class members are entitled to recover damages and (c) if so,
in what amount.
Rule 23(a)(3) Typicality: The test for typicality is not demanding,
and it focuses on the general similarity of the legal and remedial
theories behind plaintiff's claims. The typicality requirement may
be met if the representative's claim arises from the same events or
practices or course of conduct that gives rise to the claims of
other class members, and the named plaintiff's claims are based on
the same legal theory.
Many courts have found typicality if the claims or defenses of the
representatives and the members of the class stem from a single
event or a unitary course of conduct, or if they are based on the
same legal or remedial theory. As long as the claims of the named
plaintiffs are consistent with those of the class, the claims need
not be identical.
For FDCPA cases concerning form letters, typicality is met where
the named plaintiff receives a letter containing the same alleged
defects as those sent to the class.
The Court finds that the typicality requirement is satisfied here
because Plaintiff and the Class all received collection letters
from Defendant with the same alleged defects. Plaintiff's factual
claims, legal theories, and remedies are identical to those of the
class.
Rule 23(a)(4) Adequacy of Representation: Class representatives
must be part of the class and possess the same interest and suffer
the same injury as the class members. This is to ensure that the
named plaintiffs are aligned with class members such that the
representatives have an incentive to pursue and protect the claims
of the absent class members. This requirement also addresses
potential conflicts of interest between named parties and the class
they represent, as well as competency and conflicts of class
counsel. Adequacy of representation consists of two prongs: the
adequacy of counsel to handle a class action and the adequacy of
the named plaintiff to protect the differing interests of the class
members. When evaluating the adequacy of the class representative,
the inquiry focuses on conflicts of interest between named parties
and the class they seek to represent.
Rule 23(b)(3) Predominance: To predominate, common issues must form
a significant part of individual cases. The purpose of this
requirement is to ensure that the proposed class is sufficiently
cohesive to warrant adjudication by representation. To determine
whether common issues predominate, the court must `identify the
substantive issues that will control the outcome, assess which
issues will predominate, and then determine whether the issues are
common to the class. Here, for reasons already set out, common
issues predominate.
Rule 23(b)(3) Superiority: Rule 23(b)(3)'s requirement that a class
action be superior to other available methods for fairly and
efficiently adjudicating the controversy is obviously related to
the predominance requirement. The main policy which it serves is to
overcome the problem that small recoveries do not provide the
incentive for any individual to bring a solo action prosecuting his
or her rights. A class action solves this problem by aggregating
the relatively paltry potential recoveries into something worth
someone's usually an attorney's labor. As Judge Posner so aptly
stated, the realistic alternative to a class action is not 17
million individual suits, but zero individual suits, as only a
lunatic or a fanatic sues for $30.
PRELIMINARY FAIRNESS DETERMINATION LEGAL STANDARD AND APPLICATION
A district court must approve the dismissal or compromise of a
class action. The approval process is meant to ensure that the
settlement is in the interest of the class, does not fairly impinge
on the rights and interest of dissenters, and does not merely
mantle oppression.
Although both parties desire settlement, this Court is not at
liberty to merely rubberstamp approval. Rather, district judges
must independently evaluate the settlement for fairness and, in so
doing, must exercise the highest degree of vigilance in
scrutinizing the proposed settlement.
In the Fifth Circuit, fairness, adequacy and reasonableness are
typically measured by the six so-called Reed factors: (1) whether
the settlement was a product of fraud or collusion (2) the
complexity, expense, and likely duration of the litigation; (3) the
stage of the proceedings and the amount of discovery completed (4)
the factual and legal obstacles to prevailing on the merits (5) the
possible range of recovery and the certainty of damages and (6) the
respective opinions of the participants, including class counsel,
class representative, and the absent class members. Reed v. Gen.
Motors Corp., 703 F.2d 170, 172 (5th Cir. 1983)
THE CLASS REPRESENTATIVE AND CLASS COUNSEL HAVE ADEQUATELY
REPRESENTED THE CLASS
As set out earlier in this ruling, the Court is satisfied that both
the Class representative and Class counsel have adequately and
diligently represented the Class. The Court has carefully reviewed
the terms of the proposed settlement and the proposed settlement
seems fair in all respects. It was negotiated by experienced,
informed counsel. Plaintiff is represented by a law firm with
substantial experience in litigating complex class actions and is
familiar with the factual and legal issues of the case. The
Defendant is similarly represented by experienced and able counsel
who is familiar with the factual and legal issues of the case.
THE PROPOSAL WAS NEGOTIATED AT ARM'S LENGTH (THE SETTLEMENT WAS NOT
A PRODUCT OF FRAUD OR COLLUSION
The Court accepts counsels' representations that negotiations were
rigorous, hard-fought, and were conducted at arm's length. The
Parties discussed settlement for over a year and engaged in
extensive discovery so that Class counsel could evaluate the
maximum class recovery possible. The Parties were eventually able
to reach an agreement, as laid out in the Class Settlement
Agreement. (See Doc. 21-3). There is no evidence of fraud or
collusion.
RELIEF ADEQUATE GIVEN COSTS, RISKS, AND DELAY OF TRIAL AND APPEAL
(THE COMPLEXITY, EXPENSE, AND LIKELY DURATION OF THE LITIGATION
By reaching a favorable settlement prior to dispositive motions or
trial, Plaintiff is avoiding expense and delay and ensuring
recovery for the Class. Even where the claims are not particularly
complex, approval of settlement is favored where settling avoids
the risks and burdens of potentially protracted litigation.
This case is no exception. A trial would be lengthy, burdensome,
and would consume tremendous time and resources of the Parties and
the Court. Any judgment would likely be appealed, further extending
the litigation. The settlement, on the other hand, makes monetary
and injunctive relief available to Class members in a prompt and
efficient manner.
The amount of the settlement equals or exceeds the maximum recovery
under the limited damages available under the statute sued upon.
THE FACTUAL AND LEGAL OBSTACLES TO PREVAILING ON THE MERITS
Although Plaintiff believes her case is strong, it is subject to
risk. Litigation is inherently risky and full of impediments, even
where a defendant all but admitted and the plaintiffs had a strong
chance of proving liability.
A district court faced with a proposed settlement must compare its
terms with the likely rewards the class would have received
following a successful trial of the case. A trial on the merits
would involve risks for Plaintiff as to both liability and damages.
While Plaintiff believes she could ultimately establish liability,
it is very unlikely the Class could obtain the recovery it obtained
through settlement. Further, this would require the time and
resources required to litigate dispositive motions and prevail at
trial, and then prevail again on the inevitable appeals of class
certification, liability, and damages. Litigation to judgment
further creates the risk that any judgment against the Defendant
will not be collectible.
Class counsel are experienced, realistic, and understand that the
resolution of liability issues, the outcome of the trial, and the
likely appeals process, are inherently uncertain in terms of
outcome and duration. The proposed settlement alleviates these
uncertainties. This factor thus weighs in favor of approval.
THE STAGE OF THE PROCEEDINGS AND THE AMOUNT OF DISCOVERY COMPLETED
The Parties' discovery here meets this standard. The precise issue
in this action has already been litigated on a single-plaintiff
basis, with the same counsel appearing for the plaintiff and
defendant. Thus, the main issues in this class action were class
liability and damages, the latter concerning Defendant's net worth.
The Parties engaged in multiple rounds of discovery and a
deposition to fully develop these issues. Class counsel have
reviewed hundreds of pages of documents and carefully questioned
Defendant's Certified Public Accountant to reach the best position
to analyze the benefits of class settlement. The discovery,
litigation history, negotiations, and settlement itself all favor
settlement at this stage in the litigation.
THE POSSIBLE RANGE OF RECOVERY AND THE CERTAINTY OF DAMAGES
When reviewing a class settlement, the court must analyze the
recovery within the possible range of recovery.
That the settlement amount represents something less than the total
potential recovery does not, of course, warrant withholding
approval. Indeed, a settlement can be satisfying even if it amounts
to a hundredth or even a thousandth of a single percent of the
potential recovery.
As stated earlier, the FDCPA limits a defendant's liability in a
class action to statutory damages not exceeding the lesser of
$500,000 or one percent of the defendant's net worth. Through
extensive efforts, Class Counsel was able to achieve a class
recovery of $7,000.00, which is more than 1% of Defendant's net
worth. This amount represents substantial value given the
Defendant's limited financial condition and the attendant risks of
litigation. Although the individual recovery is small (estimated
between $6.66 to $66.66 per claimant depending on the number of
class members who choose to participate, the Class recovery could
only be higher if Plaintiff were able to convince the Court that
Defendant's net worth is substantially higher than the number
provided by Defendant's accountant.
THE RESPECTIVE OPINIONS OF THE PARTICIPANTS, INCLUDING CLASS
COUNSEL, CLASS REPRESENTATIVE, AND THE ABSENT CLASS MEMBERS
Class counsel and the Class representative strongly believe this
settlement is fair and beneficial to all parties involved. Notice
of the settlement and its details have not yet been issued to the
class. The Court will more fully analyze this factor after Class
members are given the opportunity to opt out or object.
THE TERMS OF PROPOSED AWARD OF ATTORNEY FEES, INCLUDING TIMING OF
PAYMENT, IS FAIR AND REASONABLE
An attorney's fee of $22,500 was negotiated as a part of the
settlement. The settlement agreement also provides:
Pending the Court's approval, Defendant's insurer shall pay counsel
for Plaintiff and the Class that amount which the Court deems
reasonable, not to exceed $22,500.00, as attorneys' fees.
Defendant's insurer shall also pay all costs incurred by counsel
for Plaintiff and all costs related to class notice and
administration.
At the Court's request, counsel for Plaintiff provided a schedule
of hours spent through the October 31, 2018 and other documentation
in connection with their representation in this matter. The
attorneys' fee when calculated based on the hours spent by the
three attorneys and paralegals (126.8) and billed at an hourly rate
suggested by Plaintiffs' counsel totals $31,950. The exceeds the
$22,500 proposed.
The Court reserves judgment on final approval of costs and/or fees,
but the Court has carefully reviewed these materials and,
especially for the preliminary approval purposes, finds that the
proposed fee is fair and reasonable under the circumstances.
THE PROPOSAL TREATS CLASS MEMBERS EQUITABLY RELATIVE TO EACH OTHER
This factor is easily met as each class member, save the Class
representative, will receive the same amount. An additional amount
for the Class representative is justified given the
representative's involvement and work performed in the case.
CONCLUSION REGARDING FAIRNESS, ADEQUACY AND REASONABLENESS
In conclusion, The Court finds that the proposed settlement is
fair, adequate and reasonable under the circumstances.
It is therefore ordered that the motion is granted.
A full-text copy of the District Court's February 4, 2019 Ruling
and Order is available at https://tinyurl.com/y4u5yyj5 from
Leagle.com.
Lindsay Hays, Individually and on behalf of all others similarly
situated, Plaintiff, represented by Samuel John Ford, Scott,
Vicknair, Hair & Checki, LLC, David Paul Vicknair, Scott, Vicknair,
Hair & Checki, LLC & Galen M. Hair, Scott, Vicknair, Hair & Checki,
LLC.
Eaton Group Attorneys, LLC, Defendant, represented by David S.
Daly, Frilot, LLC & Elliot M. Lonker, Frilot, LLC.
ERIE INDEMNITY: Court Dismisses Ritz Policyholders' Suit
--------------------------------------------------------
The United States District Court for the Western District of
Pennsylvania, Erie, issued a Memorandum Opinion granting
Defendant's Motion to Dismiss in the case captioned LYNDA RITZ,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, AND
DERIVATIVELY ON BEHALF OF NOMINAL DEFENDANT ERIE INSURANCE
EXCHANGE; Plaintiff, v. ERIE INDEMNITY COMPANY, J. RALPH
BORNEMANJR., TERRENCE W. CAVANAUGH, EUGENE C. CONNELL, LUANN
DATESH, JONATHAN HIRT HAGEN, THOMAS B. HAGEN, C. SCOTT HARTZ, BRIAN
A. HUDSONSR., CLAUDE C. LILLYIII, GEORGE R. LUCORE, THOMAS W.
PALMER, MARTIN P. SHEFFIELD, RICHARD L. STOVER, ELIZABETH A. HIRT
VORSHECK, ROBERT C. WILBURN, ERIE INSURANCE EXCHANGE, NOMINAL
DEFENDANT; Defendants, No. 1:17-CV-00340-CRE. (W.D. Pa.).
Plaintiff Linda Ritz is a subscriber of the Exchange and putative
class representative who seeks to recover damages for herself and
the putative class of subscribers or policyholders of the Exchange
due to Indemnity and the Board's alleged breach of fiduciary duty
for taking excessive management fees. It is undisputed that
Indemnity never withheld any amount exceeding 25%, but rather Ritz
argues that the breach of fiduciary duty is based upon Indemnity
taking the maximum 25% Management Fee year after year without valid
grounds since 2007 to present.
Claim Preclusion
Claim preclusion applies where there has been (1) a final judgment
on the merits in an earlier proceeding that involved (2) the same
parties or their privies and (3) a subsequent suit based on the
same cause of action. In determining whether these elements have
been met, a court does not apply this conceptual test mechanically,
but rather should focus on the central purpose of the doctrine,
[which is] to require a plaintiff to present all claims arising out
[of] the same occurrence in a single suit.
Same Cause of Action
The court finds that the same cause of action element has been met.
In determining what constitutes the same cause of action for claim
preclusion to apply, the court should take a broad view. If the
underlying events giving rise to the various legal claims are
essentially similar, then it is likely that the claims meet the
same cause of action element for claim preclusion purposes.
Here, both cases detail an alleged scheme by Indemnity and its
Board to favor the shareholders over the subscribers by allegedly
violating the 25% compensation cap mandated by the Subscriber's
Agreement. The Beltz II plaintiffs narrowly tailored their causes
of action by focusing on whether it was a breach for Indemnity and
its Board to keep extra-contractual payments which exceeded the 25%
compensation cap, while Ritz broadly alleges that Indemnity and the
Board exceeded the 25% compensation cap by unreasonably taking the
maximum allowable percentage. Both cases allege that this scheme
began at the same time, that it breaches the same provision of an
identical Subscriber's Agreement and allegedly caused damages to
the same putative class.
Thus, the Beltz II plaintiffs not only had actual knowledge of
their breach of fiduciary duty claim for the retention of the
maximum 25% of management fees, they included those facts (and the
supporting cause of action for breach of fiduciary duty) in their
complaint. Thus, the Beltz II plaintiffs were capable of including
Ritz's cause of action for the alleged excessive retention of
management fees in its complaint, were well aware of the operative
facts underlying the Ritz complaint, and actually included these
facts in their complaint. Accordingly, the same cause of action
element for claim preclusion is met.
Same Parties or Privies
Lastly, the court must determine whether the Beltz II case involved
the same parties or their privies. Privity is merely a word used to
say that the relationship between one who is a party on the record
and another is close enough to include that other within the res
judicata.
In the instant matter, the majority of the Defendants named in the
Beltz II case are identical to the Defendants named in this case.7
The only two defendants who were not parties to the Beltz II action
were Brian A. Hudson, Sr. and Eugene C. Connell. Both of these
Defendants have served on Indemnity's Board of Directors since 2017
and are included in this suit as fiduciaries for the Class and
Exchange as their position on the Board. Accordingly, because
Indemnity and its Board of Directors were named in the prior
action, Defendants Brian A. Hudson, Sr. and Eugene C. Connell are
in privity with both Indemnity and its Board of Directors for
purposes of claim preclusion.
Next, the court must determine if the plaintiffs in Beltz II and
Ritz are in privity for claim preclusion purposes. Privity has
traditionally been understood as referring to the existence of a
substantive legal relationship, such as by contract, from which it
was deemed appropriate to bind one of the contracting parties to
the results of the other party's participation in litigation. A
substantive legal relationship essentially refers to one in which
`the parties to the first suit are someone accountable to
nonparties who file a subsequent suit raising identical issues.
Here, the Beltz II plaintiffs and Ritz are in privity with each
other, as although Ritz was not a named party to the Beltz II
action, their substantive legal relationship meets this criteria.
The Beltz II plaintiffs and Ritz are all cosigners to the same
Subscriber's Agreement at issue. It is undisputed that the
Subscriber's Agreement appoints Indemnity, through its Board, as
the Exchange's attorney-in-fact, and this Subscriber's Agreement
creates the reciprocal insurance exchange. In other words, the
Beltz II plaintiffs and Ritz are co-beneficiaries of and
cosignatories to the same contract that obligates Indemnity to
provide the management services for the Exchange, and the nature of
this relationship creates privity for claim preclusion purposes.
Ritz argues that privity does not exist because no class had been
certified in Beltz II prior to judgment being entered.9 While Ritz
is correct that no class had been certified prior to judgment being
entered, privity exists by virtue of the contractual relationship
between the Beltz II plaintiffs and Ritz, and not by virtue of the
certification of the putative class. Accordingly, privity exists
between the Beltz II plaintiffs and Ritz for claim preclusion
purposes.
Accordingly, the Plaintiff's claims are barred by claim preclusion
and her complaint is dismissed with prejudice.
A full-text copy of the District Court's February 4, 2019
Memorandum Opinion is available at https://tinyurl.com/y55tvxha
from Leagle.com.
LYNDA RITZ, Individually and on Behalf of All Others Similarly
Situated, and Derivatively on Behalf of Nominal Defendant ERIE
INSURANCE EXCHANGE, Plaintiff, represented by Joseph H. Meltzer --
jmeltzer@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, pro hac
vice, Peter Muhic -- pmuhic@ktmc.com -- Kessler Topaz Meltzer &
Check, LLP, pro hac vice, Robin Winchester -- rwinchester@ktmc.com
-- Kessler Topaz Meltzer and Check, LLP, pro hac vice, Tyler S.
Graden -- tgraden@ktmc.com -- Kessler Topaz Meltzer & Check, LLP,
William M. Martin -- wmm@radlaw.net -
Radcliffe Law, L.L.C. & William M. Radcliffe -- wmr@radlaw.net --
Radcliffe Law, L.L.C.
ERIE INDEMNITY COMPANY, Defendant, represented by Michael L.
Kichline -- michael.kichline@dechert.com -- Dechert LLP, pro hac
vice, Ryan M. Moore -- ryan.moore@dechert.com -- Dechert LLP, pro
hac vice, Steven B. Feirson -- steven.feirson@dechert.com --
Dechert LLP, pro hac vice & Tiffany E. Engsell --
tiffany.engsell@dechert.com -- Dechert LLP, pro hac vice.
EURIBOR PRODUCTS: Lowey Dannenberg Discloses Settlement
-------------------------------------------------------
Notice of Class Action Settlement
If you transacted in Euribor Products1 between June 1, 2005 and
March 31, 2011, inclusive ("Class Period"), then your rights will
be affected and you may be entitled to a benefit.
The purpose of this Notice is to inform you of your rights in
connection with the proposed settlement with Settling Defendants
Citigroup Inc. and Citibank, N.A. (collectively "Citi") and
JPMorgan Chase & Co. and JPMorgan Chase Bank, N.A. (collectively,
"JPMorgan") in the action titled Sullivan, et al. v. Barclays plc,
et al., 13-cv-2811 (PKC) (S.D.N.Y.). The settlement with Citi and
JPMorgan (the "Settlement") is not a settlement with any other
Defendant and thus is not dispositive of any of Plaintiffs' claims
against other Defendants.
The Settlement has been proposed in a class action lawsuit
concerning the alleged manipulation of the Euro Interbank Offered
Rate ("Euribor") and the prices of Euribor Products during the
Class Period. The Settlement provides a total of $182.5 million to
pay claims from persons who transacted in Euribor Products during
the Class Period. If you qualify, you may send in a Proof of Claim
and Release form to potentially get benefits, or you can exclude
yourself from the Settlement, or object to it.
The United States District Court for the Southern District of New
York (500 Pearl St., New York, NY 10007-1312) authorized this
Notice. Before any money is paid, the Court will hold a Settlement
Hearing to decide whether to approve the Settlement.
Who Is Included?
You are a "Settlement Class Member" if you purchased, sold, held,
traded, or otherwise had any interest in Euribor Products during
the Class Period, and during the Class Period were either domiciled
in the United States or its territories or, if domiciled outside
the United States or its territories, you transacted Euribor
Products in the United States or its territories during the Class
Period. "Settlement Class Members" include, but are not limited to,
all persons who during the Class Period traded CME Euro currency
futures contracts, all persons who during the Class Period
transacted in NYSE LIFFE Euribor futures and options from a
location within the United States, and all persons who during the
Class Period traded any other Euribor Product from a location
within the United States or its territories.
Contact your brokerage firm to see if you purchased, sold, held, or
traded or otherwise had any interest in Euribor Products. If you
are not sure you are included, you can get more information,
including the Settlement Agreement,2 Mailed Notice, Plan of
Allocation, Proof of Claim and Release, and other important
documents, at www.EuriborSettlement.com ("Settlement Website") or
by calling toll free 800-492-9154.
What Is This Litigation About?
Plaintiffs allege that Defendants, during the Class Period,
conspired to manipulate and manipulated Euribor and the prices of
Euribor Products. Plaintiffs allege that Defendants did so by using
several means of manipulation. For example, Plaintiffs allege that
panel banks that made daily Euribor submissions to Thomson Reuters,
falsely reported banks' costs of borrowing in order to financially
benefit their Euribor Products positions. Plaintiffs also allege
that Defendants requested that other Defendants make false Euribor
submissions on their behalf to benefit their Euribor Products
positions.
Plaintiffs further allege that Defendants continuously conspired to
fix the prices of Euribor Products in the over-the-counter market
to financially benefit their own Euribor Products positions. In
addition to coordinating Euribor submissions and agreeing on where
to price Euribor Products, Plaintiffs allege that in order to
effectuate their alleged manipulations of Euribor and Euribor
Products during the Class Period, Defendants engaged in "pushing
cash," transmitted false bids and offers, used derivative traders
as submitters, and rigged bids and offers for Euribor Products.
Plaintiffs have asserted legal claims under various theories,
including the Sherman Act, the Commodity Exchange Act, the
Racketeering Influenced and Corrupt Organizations Act, and common
law.
Settling Defendants have consistently and vigorously denied
Plaintiffs' allegations.
What Does the Settlement Provide?
Under the Settlement, Citi and JPMorgan agreed to pay a total of
$182.5 million into the Settlement Fund. If the Court approves the
Settlement, potential Settlement Class Members who qualify and send
in valid Proof of Claim and Release forms may receive a share of
the Settlement Fund after it is reduced by the payment of certain
expenses. The Settlement Agreement, available on the Settlement
Website, describes all of the details about the proposed
Settlement. The exact amount each qualifying Settlement Class
Member will receive from the Settlement Fund cannot be calculated
until (1) the Court approves the Settlement; (2) certain amounts
identified in the full Settlement Agreement are deducted from the
Settlement Fund; and (3) the number of participating Class Members
and the amount of their claims are determined. In addition, each
Settlement Class Member's share of the Settlement Fund will vary
depending on the information the Settlement Class Member provides
on their Proof of Claim and Release form.
The number of claimants who send in claims varies widely from case
to case. If less than 100% of the Settlement Class sends in a Proof
of Claim and Release form, you could get more money.
How Do You Ask For a Payment?
If you are a Settlement Class Member, you may seek to participate
in the Settlement by submitting a Proof of Claim and Release to the
Claims Administrator at the address in the Settlement Notice
postmarked no later than July 31, 2019. You may obtain a Proof of
Claim on the Settlement Website or by calling the toll-free number
referenced above. If you are a Settlement Class Member but do not
file a Proof of Claim and Release, you will still be bound by the
releases set forth in the Settlement Agreement if the Court enters
an order approving the Settlement Agreement.
If you timely submitted a Proof of Claim and Release pursuant to
the class notice dated November 29, 2017, related to the $94
million settlement with Defendants Barclays plc, Barclays Bank plc,
and Barclays Capital Inc. (collectively, "Barclays"); the $45
million settlement with HSBC Holdings plc and HSBC Bank plc
(collectively, "HSBC"); and the $170 million settlement with
Deutsche Bank AG and DB Group Services (UK) Ltd. (collectively,
"Deutsche Bank") (the "2017 Notice"), you do not have to submit a
new Proof of Claim and Release to participate in the Settlement
with Citi and JPMorgan. Any member of the Settlement Class who
previously submitted a Proof of Claim and Release in connection
with the 2017 Notice will be subject to and bound by the releases
set forth in the Settlement Agreement with Citi and JPMorgan,
unless such member submits a timely and valid request for
exclusion, explained below.
What Are Your Other Options?
All requests to be excluded from the Settlement must be made in
accordance with the instructions set forth in the Settlement Notice
and must be postmarked to the Claims Administrator no later than
April 12, 2019. All requests for exclusion must comply with the
requirements set forth in the Settlement Notice to be honored. The
Settlement Notice, available at the Settlement Website, explains
how to exclude yourself or object. If you exclude yourself from the
Settlement Class, you will not be bound by the Settlement Agreement
and can independently pursue claims at your own expense. However,
if you exclude yourself, you will not be eligible to share in the
Net Settlement Fund or otherwise participate in the Settlement.
The Court will hold a Settlement Hearing in this case on May 17,
2019, to consider whether to approve the Settlement and a request
by the lawyers representing all Settlement Class Members (Lowey
Dannenberg, P.C. and Lovell Stewart Halebian Jacobson LLP) for an
award of attorneys' fees of no more than nineteen percent (19%), or
$34,675,000, of the Settlement Fund for investigating the facts,
litigating the case, and negotiating the settlement, and for
reimbursement of their costs and expenses in the amount of no more
than approximately $1,300,000. The Plaintiffs may also request no
more than $400,000 from the Settlement Fund as reimbursement of
their own expenses and compensation for their time devoted to this
litigation. The lawyers for the Settlement Class may also seek
additional reimbursement of costs and expenses in connection with
services provided after the Settlement Hearing. These payments will
also be deducted from the Settlement Fund before any distributions
are made to the Settlement Class.
You may ask to appear at the Settlement Hearing, but you do not
have to. For more information, call toll free 800-492-9154 or visit
the website www.EuriborSettlement.com.
1 "Euribor Products" means any and all interest rate swaps, forward
rate agreements, futures, options, structured products, and any
other instrument or transaction related in any way to Euribor,
including but not limited to, New York Stock Exchange ("NYSE")
London International Financial Futures and Options Exchange
("LIFFE") Euribor futures contracts and options, Chicago Mercantile
Exchange ("CME") Euro currency futures contracts and options, Euro
currency forward agreements, Euribor-based swaps, Euribor-based
forward rate agreements, and/or any other financial instruments
that reference Euribor.
2 The "Settlement Agreement" means the agreement between
Plaintiffs, Citi and JPMorgan, entered into on November 21, 2018,
and filed with the Court in this action. [GN]
EXXON MOBIL: Court OKs Dismissal of Fentress ERISA Suit
-------------------------------------------------------
The United States District Court for the Southern District of
Texas, Houston Division, issued a Memorandum and Order granting
Defendants' Motion to Dismiss the Second Amended Class Action
Complaint in the case captioned BOBBY D. FENTRESS, et al,
Plaintiffs, v. EXXON MOBIL CORPORATION, et al, Defendants. Civil
Action No. 4:16-CV-3484. (S.D. Tex.).
This is an Employee Retirement Income Security Act (ERISA) case
alleging a breach of fiduciary duties in the management of a
defined contribution plan. The Plaintiffs allege that the
Defendants knew or should have known that Exxon's stock had become
artificially inflated in value due to fraud and misrepresentation,
thus making Exxon stock an imprudent investment under ERISA and
damaging the Plan and those Plan participants who bought or held
stock.
The Defendants argue that the Second Amended Complaint does not
correct any of the deficiencies noted by the Court in its previous
dismissal of the First Amended Complaint. Specifically, the
Defendants argue that the Second Amended Complaint (1) does not
allege any special circumstances as required for a claim based on
publicly available information (2) still does not meet the
heightened pleading standard the Supreme Court and Fifth Circuit
have set out for ERISA breach-of-fiduciary-duties actions and (3)
does not plausibly allege any non-public information on which
Defendants should have acted.
The Plaintiffs' duty of prudence claim is based on the allegation
that the Defendants knew or should have known that Exxon's stock
had become artificially inflated in value due to fraud and
misrepresentation. The Plaintiffs' allegations are thus based only
on how the Defendants should have managed the Plan based on
insider, non-public information.
The Plaintiffs suggest that the alternative action Defendant should
have taken was to seek out those responsible for Exxon's
disclosures under the federal securities laws and try to persuade
them to refrain from making affirmative misrepresentations
regarding the value of Exxon's reserves.
This Court's prior ruling held that the Plaintiffs had not
sufficiently alleged that earlier corrective disclosures would have
been so clearly beneficial that a prudent fiduciary could not
conclude that it would be more likely to harm the fund than to help
it. The Court found that the risk that the stock price would drop,
lowering the value of the stock already held by the fund, could
have convinced a prudent fiduciary that publicly disclosing the
negative information would do more harm than good to the fund.
The court found the following circumstances persuasive: (1) the
defendants allegedly knew that the stock was artificially inflated
through accounting violations (2) defendants had the power to make
corrective disclosures to correct the price (3) general economic
principles suggest that the reputational damage to a company
increases the longer a fraud continues (4) the stock was traded in
an efficient market and (5) eventual disclosure was inevitable,
because the business was being sold.
The Plaintiffs argue that the investigations into Exxon by state
attorneys general and the SEC made it inevitable that the
non-public information would come to light. These investigations
certainly put pressure on the company, but resulted in no charges
within the class period. The investigation by the New York Attorney
General's office continued until October 24, 2018 about two years
after the end of the class period and only at that point was Exxon
sued for allegedly defrauding shareholders. A public charge against
a company would likely make disclosure inevitable, because the
complaint detailing the allegations would become public record.
Investigations, in contrast, are often long and may not result in
any charges against a company. Exxon's eventual disclosure was
probably foreseeable, but the Court cannot say it was inevitable.
Thus, the Court concludes the Plaintiffs' Second Amended Complaint
does not show that a prudent fiduciary could not conclude that
remaining silent could have resulted in a drop in stock prices that
would have done more harm than good to the Plan. Although
Plaintiffs argue that the drop would have been minor and temporary,
the Court has already rejected that argument as inappropriately
relying on hindsight.
Accordingly, the Court grants the Defendants' Motion to Dismiss the
Second Amended Class Action Complaint.
A full-text copy of the District Court's February 4, 2019
Memorandum and Order is available at https://tinyurl.com/yyrcywow
from Leagle.com.
Bobby D. Fentress, and all other individulas similarly situated,
Plaintiff, represented by Edward H. Glenn, Jr., Zamanksy LLC, Jacob
H. Zamansky, Zamansky LLC, Justin Sauerwald, Zamansky LLC, Samuel
E. Bonderoff, Zamansky LLC & J. Hampton Skelton, Skelton Woody,
Kevin Conroy, Azmi Attia & Mark Barr, Plaintiffs, represented by
Samuel E. Bonderoff, Zamansky LLC.
Exxon Mobil Corporation, Defendant, represented by Daniel Kramer --
dkramer@paulweiss.com -- Paul Weiss et al, Daniel J. Toal --
dtoal@paulweiss.com -- Paul Weiss et al, Gregory F. Laufer --
glaufer@paulweiss.com -- Paul Weiss Rifkind, pro hac vice, Jonathan
H. Hurwitz -- jhurwitz@paulweiss.com -- Paul Weiss et al, Theodore
V. Wells, Jr. -- twells@paulweiss.com -- Paul Weiss et al, Daniel
H. Gold -- daniel.gold@haynesboone.com -- Haynes and Boone LLP,
Mark Ryan Trachtenberg -- mark.trachtenberg@haynesboone.com --
Haynes and Boone, LLP & Nina Cortell --
nina.cortell@haynesboone.com -- Haynes and Boone LLP.
Bradley William Corson, Neil Chapman & D. G. Wascom, Defendants,
represented by Daniel Kramer, Paul Weiss et al.
Suzanne McCarron, Defendant, represented by Daniel Kramer, Paul
Weiss et al, Daniel H. Gold, Haynes and Boone LLP, Mark Ryan
Trachtenberg, Haynes and Boone, LLP & Nina Cortell, Haynes and
Boone LLP.
Malcolm Farrant, Defendant, represented by Daniel Kramer, Paul
Weiss et al & Mark Ryan Trachtenberg, Haynes and Boone, LLP.
Beth Casteel, Daniel Lyons & Len Fox, Defendants, represented by
Daniel Kramer, Paul Weiss et al, Daniel H. Gold, Haynes and Boone
LLP & Nina Cortell, Haynes and Boone LLP.
FAIRFIELD, OH: Faces Campbell Suit in S.D. Ohio
-----------------------------------------------
A class action lawsuit has been filed against City Of Fairfield,
Ohio. The case is captioned as ANSELM CADDELL, individually and on
behalf of all others similarly situated, Plaintiff v. JOYCE A
CAMPBELL, in her official capacity as Presiding and Administrative
Judge of the Fairfield Municipal Court; and CITY OF FAIRFIELD,
OHIO, Defendants, Case No. 1:19-cv-00091-SJD-SKB (S.D. Ohio, Feb.
1, 2019). The case is assigned to Judge Susan J. Dlott and referred
to Magistrate Judge Stephanie K. Bowman.
Fairfield is a city in Butler and Hamilton counties in the U.S.
state of Ohio, and a residential suburb of nearby Cincinnati.
Fairfield was incorporated in 1955. [BN]
The Plaintiff is represented by:
Gregory A Napolitano, Esq.
Paul Montague Laufman, Esq.
LAUFMAN & NAPOLITANO LLC
4310 Hunt Road
Cincinnati, OH 45242
Telephone: (513) 621-4556
Facsimile: (513) 621-5563
E-mail: gnapolitano@ln-lawfirm.com
plaufman@ln-lawfirm.com
The Defendant is represented by:
Lisa Marie Zaring, Esq.
Anthony P. McNamara, Esq.
MONTGOMERY RENNIE & JONSON
36 East Seventh St., Suite 2100
Cincinnati, OH 45202
Telephone: (513) 241-4722
Facsimile: (513) 241-8775
E-mail: lzaring@mrjlaw.com
amcnamara@mrjlaw.com
FOSTER FARMS: Lacroix Sues over Credit Background Check
-------------------------------------------------------
DALE M. LACROIX, individually and on behalf of all others similarly
situated, Plaintiff v. FOSTER FARMS, LLC; FOSTER POULTRY FARMS; and
DOES 1 through 50, inclusive, Defendants, Case No. 19CV342011 (Cal.
Super., Santa Clara Cty., Feb. 1, 2019) alleges violations of the
Fair Credit Reporting Act.
The Plaintiff alleges in the complaint that the Defendants
routinely acquire consumer, investigative consumer and consumer
credit reports to conduct background checks on the Plaintiff and
other prospective, current and former employees; and use
information from credit and background reports in connection with
their hiring process without providing proper disclosures and
obtaining proper authorization in compliance with the law.
Foster Farms, LLC produces poultry products, such as chicken. The
company is based in Livingston, California. [BN]
The Plaintiff is represented by:
Shaun Setareh, Esq.
H. Scott Leviant, Esq.
William M. Pao, Esq.
SETAREH LAW GROUP
315 South Beverly Drive, Suite 315
Beverly Hills, CA 90212
Telephone: (310) 888-7771
Facsimile: (310) 888-0109
E-mail: shaun@setarehlaw.com
scott@setarehlaw.com
william@setarehlaw.com
GEORGE TYNDALL: 30 More Women File New Lawsuit
----------------------------------------------
Breanna de Vera, writing for uscannenbergmedia.com, reports that 30
more women stepped forward in a new lawsuit alleging sexual
misconduct by George Tyndall on Jan. 16, according to court
records. They join over 200 existing complaints of sexual
misconduct against the former USC gynecologist.
In this newest lawsuit, Tyndall is charged with 14 counts,
including sexual abuse, harassment in an educational setting,
sexual battery, and negligence. The lawsuit also contains
testimonies from victims' encounters with Tyndall -- lewd comments
on their bodies, race, and sexual activity in almost every
instance.
Police found a stash of pornography and photographs of nude women
in Tyndall's storage unit this past December. They are still
determining if any of the pictures include the women who filed
these new complaints and if any of the photos took place at USC,
according to the Los Angeles Times.
A class action suit for $215 million proposed late last year was
rejected as victims could only receive $2,500 each, according to
the press release from the offices of Manly, Stewart, and Finaldi,
which accompanied the lawsuit. Instead, victims are filing
complaints individually.
The offices of Manly, Stewart, and Finaldi are representing these
30 new complaints, bringing the total number of women they are
representing to 177, according to Stu Mollrich, Esq. a senior
attorney at the firm. The offices of Allred, Maroko, and Goldberg
are also representing several women who Tyndall allegedly abused.
Tyndall has continued to deny misconduct in interviews with the Los
Angeles Times.
USC did not reply in time for comment.[GN]
HEARTLAND EMPLOYMENT: Removes Mason Suit to N.D. Illinois
---------------------------------------------------------
The Defendant in the case of BRENDA MASON, individually and on
behalf of all others similarly situated, Plaintiff v. HEARTLAND
EMPLOYMENT SERVICES, LLC, Defendant, filed a notice to remove the
lawsuit from the Circuit Court of the State of Illinois, County of
Cook (Case No. 2018-CH-15633) to the U.S. District Court for the
Northern District of Illinois on February 1, 2019. The clerk of
court for the Northern District of Illinois assigned Case No.
1:19-cv-00680. The case is assigned to Honorable Robert M. Dow,
Jr.
Heartland Employment Services LLC serves individuals of all
abilities in finding job opportunities. [BN]
The Plaintiff is represented by:
Douglas M. Werman, Esq.
Sarah J. Arendt, Esq.
Maureen A. Salas, Esq.
Zachary C. Flowerree, Esq.
WERMAN SALAS, P.C.
77 West Washington, Suite 1402
Chicago, IL 60602
Telephone: (312) 419-1008
E-mail: dwerman@flsalaw.com
sarendt@flsalaw.com
zfowerree@flsalaw.com
The Defendant is represented by:
David K. Haase, Esq.
LITTLER MENDELSON, P.C.
321 North Clark Street, Suite 1000
Chicago, IL 60654
Telephone: (312) 372-5520
E-mail: dhaase@littler.com
- and -
Jennifer Lynn Jones, Esq.
LITTLER MENDELSON, PC
321 North Clark Street, Suite 1000
Chicago, IL 60654
Telephone: (312) 795-3253
E-mail: jeljones@littler.com
- and -
Kwabena Agyepong Appenteng, Esq.
LITTLER MENDELSON, PC
321 North Clark Street, Suite 1000
Chicago, IL 60654
Telephone: (312) 795-3268
E-mail: kappenteng@littler.com
INTEGRATIVE EMERGENCY: Faces Suit over Medical Billing Practices
----------------------------------------------------------------
FRANKI HERNANDEZ, and JAIME HERNANDEZ, individually and on behalf
of all others similarly situated, Plaintiffs v. INTEGRATIVE
EMERGENCY SERVICES PHYSICIAN GROUP, PA; INTEGRATIVE EMERGENCY
SERVICES; BAYLOR UNIVERSITY MEDICAL CENTER; and CENTURY INTEGRATED
PARTNERS, INC., Defendants, Case No. DC-19-01418 (Tex. Dist., 44th
Judicial, Dallas County, Jan. 28, 2019) is a class action on behalf
of all persons in the State of Texas who were provided emergency
department medical services at an in-network emergency department
at the Defendants' hospital headquartered in Dallas, Texas, but
then later received a balance bill on behalf of an out-of-network
emergency room physician for an amount beyond the in-network rate
under their policy or the reasonable fair market value rates for
the services rendered.
According to the complaint, the Plaintiffs and the class are being
ambushed by "surprise billing," which occurs when the Plaintiffs
and the class go to a hospital that is "in-network" with their
health insurance, only to be told weeks or months later that the
doctors are "out-of—network" and their services are not covered
by the Plaintiffs and the class's insurance. Unconstrained by any
negotiated agreement, the out-of—network provider's services are
billed at rates in excess of the reasonable fair market value for
the services provided. The result can be financially disastrous for
the Plaintiffs and the class who reasonably thought they had
nothing to worry about since they had obtained health insurance
coverage and went to an in-network facility for treatment.
In Fort Worth Texas, Integrative Emergency Services Physician Group
PA has seven members working at 1575 S Main St JPS Emergency.
Medical taxonomies which are covered by group's doctors and health
care providers in the city include Allopathic & Osteopathic
Physicians/Emergency Medicine, Physician Assistants & Advanced
Practice Nursing Providers/Nurse Practitioner, Allopathic &
Osteopathic Physicians/Family Medicine, Nurse Practitioner/Family,
Family Medicine/Hospice and Palliative Medicine. [BN]
The Plaintiff is represented by:
Philip H. Hilder, Esq.
Q. Tate Williams, Esq.
HILDER & ASSOCIATES, P.C.
819 Lovett Blvd.
Houston, TX 77006
Telephone (713) 655-9111
Facsimile (713) 655—9112
E-mail: philip@hilderlaw.com
tate@hilderlaw.com
- and -
Patricia I. Avery, Esq.
Matthew Insley-Pruitt, Esq.
WOLF POPPER LLP
845 Third Avenue
New York, NY 10022
Telephone: (212) 759-4600
Facsimile: (212) 486-2093
E-mail: paverv@wolfpopper.com
minslev-pmitt@wolfpopper.com
INTERCONTINENTAL EXCHANGE: Awaits Court OK on Bid to Dismiss Suit
-----------------------------------------------------------------
Intercontinental Exchange, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 7,
2019, for the fiscal year ended December 31, 2018, that the parties
are still awaiting a court decision on the motion to dismiss a
class action against financial institutions and securities exchange
companies.
In 2014, New York Stock Exchange LLC and NYSE Arca, Inc., two of
the company's subsidiaries, were among more than 40 financial
institutions and exchanges named as defendants in four purported
class action lawsuits filed in the U.S. District Court for the
Southern District of New York by the City of Providence, Rhode
Island, and other plaintiffs.
In subsequent consolidated amended complaints, the plaintiffs
asserted claims against the exchange defendants and Barclays PLC
which operates an ATS known as Barclays LX, on behalf of a class of
"all public investors" who bought or sold stock from April 18, 2009
to the present on the U.S.-based equity exchanges operated by the
exchange defendants or on Barclays LX.
In 2015, the district court granted the defendants' motions to
dismiss and dismissed the second amended complaint with prejudice.
The court held that the plaintiffs had failed to sufficiently state
a claim against the defendants under Sections 10(b) and 6(b) of the
Exchange Act, and additionally that some of the claims against the
exchanges were barred by the doctrine of self-regulatory
organization immunity.
In 2015, the plaintiffs filed an appeal of the dismissal of the
lawsuit to the U.S. Court of Appeals for the Second Circuit, or the
Second Circuit.
On December 19, 2017, the Second Circuit issued a decision vacating
the dismissal and remanding the case to the district court for
further proceedings. The Second Circuit held that the claims
against the exchanges were not barred by the doctrine of
self-regulatory organization immunity because (according to the
Second Circuit) the exchanges were not carrying out regulatory
functions while operating their markets and engaging in the
challenged conduct at issue, and that the plaintiffs had adequately
pleaded claims against the defendants under Section 10(b) of the
Exchange Act.
The Second Circuit directed that, on remand, the district court
should address and rule upon various other defenses raised by the
exchanges in their motion to dismiss (which the district court did
not address in its prior opinion and order). The parties are
awaiting a decision on a motion to dismiss filed by the defendant
exchanges in the district court seeking dismissal on grounds other
than those considered by the Second Circuit in its December 2017
decision.
No further updates were provided in the Company's SEC report.
Intercontinental Exchange, Inc. operates regulated exchanges,
clearing houses, and listings venues for commodity, financial,
fixed income, and equity markets in the United States, the United
Kingdom, European Union, Asia, Israel, and Canada. Intercontinental
Exchange, Inc. was founded in 2000 and is headquartered in Atlanta,
Georgia.
IRWIN INDUSTRIES: Removes Tate Suit to C.D. California
------------------------------------------------------
The Defendant in the case of VIVIAN C TATE, individually and on
behalf of all others similarly situated, Plaintiff v. IRWIN
INDUSTRIES, INC.; and MARATHON PETROLEUM CORPORATION; and DOES 1
through 50, inclusive, Defendants, filed a notice to remove the
lawsuit from the Superior Court of the State of California, County
of Los Angeles (Case No. 18STCV08366) to the U.S. District Court
for the Central District of California on February 1, 2019. The
clerk of court for the Central District of California assigned Case
No. 2:19-cv-00807-GW-RAO. The case is assigned to Judge George H.
Wu and referred to Magistrate Judge Rozella A. Oliver.
IRWIN Industries, Inc. provides construction, maintenance, outage,
turnaround, and fabrication services to the energy and industrial
infrastructure markets in the United States. IRWIN Industries, Inc.
was founded in 1922 and is based in Long Beach, California with
additional offices in Oxnard, California; Denver, Colorado; and
Summerville, South Carolina. [BN]
The Plaintiff is represented by:
Chaim Shaun Setareh, Esq.
Thomas Segal, Esq.
Farrah Grant, Esq.
SETAREH LAW GROUP
315 South Beverly Drive, Suite 315
Beverly Hills, CA 90212
Telephone: (310) 888-7771
Facsimile: (310) 888-0109
E-mail: shaun@setarehlaw.com
thomas@setarehlaw.com
farrah@setarehlaw.com
The Defendants are represented by:
Robert R Roginson , III, Esq.
Ryan Hamilton Crosner, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
400 South Hope Street, Suite 1200
Los Angeles, CA 90071
Telephone: (213) 239-9800
Facsimile: (213) 239-9045
E-mail: robert.roginson@ogletreedeakins.com
ryan.crosner@ogletreedeakins.com
JEFFERSON PARISH, LA: Court Allows Witness Deposition in Carlisle
-----------------------------------------------------------------
The United States District Court for the Eastern District of
Louisiana issued an Order and Reasons granting in part and denying
in part Plaintiffs' Motion for Relief Respecting Objections and
Deposition of Mr. Marino in the case captioned TAYLOR CARLISLE, ET
AL. SECTION: "H"(1), v. NEWELL NORMAND, ET AL. Civil Action No.
16-3767. (E.D. La.).
Plaintiffs Taylor Carlisle and Emile Heron were convicted of
possession of various controlled substances and, as a part of their
sentences, enrolled in the Drug Court Program of the 24th Judicial
District Court (Drug Court Program). They filed this lawsuit
challenging the imposition of jail time for alleged probation
violations by Drug Court Program participants to the extent that
imprisonment or refusal to consider good time by the Sheriff was
not pursuant to an order from the Drug Court; the plaintiffs' state
law claim for legal malpractice pending against Joseph Marino; and
plaintiff Carlisle's therapist malpractice claim against Joe McNair
and McNair & McNair, LLC.
The Plaintiffs have now filed the present motion seeking an order
that Marino pay for the cost of the December 20, 2018, transcript
and video because they say Marino's objections render them
practically useless. They also request an order allowing them to
retake the Marino deposition for the same reason.
Marino argues that his counsel's objections do not warrant the
imposition of sanctions. He submits that, with the exception of one
privilege objection, all objections were to the form of the
question and that after every objection to form, the question was
answered. He points out that none of the objections were speaking
objections.
Sanctions under Rule 30(d)
Federal Rule of Civil Procedure 30 governs discovery depositions
like the one at issue here. Rule 30(c)(1) instructs that the
examination and cross-examination of a deponent proceed as they
would at trial under the Federal Rules of Evidence, except Rules
103 and 615.
As officers of the court, counsels are expected to conduct
themselves in a professional manner during a deposition. A
deposition is intended to permit discovery of information in the
possession of the deponent or perpetuate the testimony of the
deponent. In either case, it is to be conducted in a manner that
simulates the dignified and serious atmosphere of the courtroom.
Thus, the witness is placed under oath and a court reporter is
present. Conduct that is not permissible in the courtroom during
the questioning of a witness is ordinarily not permissible at a
deposition. A deposition is not to be used as a device to
intimidate a witness or opposing counsel so as to make that person
fear the trial as an experience that will be equally unpleasant,
thereby motivating him to either dismiss or settle the complaint.
Marino Deposition
The Plaintiffs complain that because Marino's counsel's objections
interrupted the question and response, it was sometimes necessary
to have the question re-read. Plaintiffs complain that due to the
objections, it became very difficult to obtain a yes or no answer.
Plaintiffs argue that as a result of the objections, the witness
became argumentative. Plaintiffs submit that some of the objections
improperly contained argument. They cite as an example an exchange
regarding plaintiffs' attempt to question the witness about a Drug
Court record of another Drug Court participant and client of
Marino, which Marino's counsel argued was privileged.
The Plaintiffs also complain that Marino's counsel frequently and
improperly objected to questions as calling for a legal conclusion.
They argue that because they are asserting claims of legal
malpractice concerning Marino's representation of them, they are
entitled to know what he knew of the relevant statutes, and how he
interpreted them during the course of his representation.
Plaintiffs also complain that Marino's counsel unfairly objected to
questions as long. They explain that the only part of these
questions that were long was the quote from the statutory provision
about which they sought to question Marino.
Marino argues that his counsel's objections do not warrant the
imposition of sanctions. Marino stands by his objections, arguing
that some of them are appropriate objections to compound questions
and others properly object to plaintiffs' attempt to obtain a legal
conclusion from the witness. He disagrees with the count of 330
objections, noting that this number appears to include objections
of other counsel. He submits that with the exception of one
privilege objection, all objections were to the form of the
question and that after every objection to form, the question was
answered. He points out that none of the objections were peaking
objections. Marino underscores that after each objection, he still
answered the question. At oral argument, Marino's counsel insisted
that the deposition proceeded just like any other deposition
without an extraordinary number of objections. He argued that the
transcript and video are usable and that Marino should not be put
through another full day of deposition.
The court has reviewed the transcript of the deposition and
strongly disagrees with Marino's analysis. The objections were
frequent, often unfounded, and were highly disruptive. In 322 pages
of deposition transcript, Marino's counsel raised a form objection
approximately 280 times. Other defense counsel piled on with an
additional 30+ objections to the form. These objections were often
unnecessary and no doubt significantly prolonged the deposition.
Counsel spoke over one another, plaintiff's counsel was sometimes
double teamed with objections by each of Marino's two attorneys,
and questions had to be re-read on numerous occasions. One 10-page
discussion related to an objection about an issue on which the
court had already ruled.
The Court finds it particularly troubling that during the
deposition Plaintiffs' counsel advised that the objections were
interfering with the deposition and offered to enter a standing
objection to avoid the interruptions. This was a practical solution
that would have also inured to Marino's benefit; he could have
challenged each and every question and answer later.
Furthermore, Marino is a lawyer who had already shown in the
deposition that he was more than capable of seeking clarification
or asking that the question be repeated when needed, and following
the questioning appropriately. Yet Marino's counsel declined. At
oral argument, Marino's counsel could offer no reason why such a
standing objection would not have protected his client, explaining
merely that it is a matter of his practice not to agree to such
standing objections. Plaintiff's counsel opined at oral argument
that given the extreme efforts by defense counsel both before and
after the deposition to avoid and/or limit the deposition, she
believed the excessive objecting was a litigation tactic. It is
hard to disagree.
As a general matter, deposition questions seeking legal conclusions
are inappropriate. But here, counsel's objections to questions
purportedly seeking legal conclusions went too far. The deponent is
a lawyer and the cause of action against him is a claim for legal
malpractice. Some questioning regarding Marino's understanding of
the law is relevant to Carlisle's claim
Nonetheless, the court takes note that while it may have been a
needlessly grueling day, it seems that the deposition was
productive. Marino was largely cooperative, tried to answer the
questions, and indeed did answer most of the questions. Marino's
counsel did not raise abusive speaking objections or improperly
instruct Marino not to answer questions. Counsel for plaintiffs
agreed at oral argument that the deposition was productive, but
noted that she was unable to get to all of her questions as a
result of the disruption.
The court finds that the appropriate remedy in this case is that
Marino's deposition, which is already scheduled to be continued for
the remaining one hour and forty minutes, shall be taken for a
total of up to three and a half additional hours. Any time spent
on objections or in argument or other discussions between counsel
is to be added to this total. For purposes of obtaining an
unimpeded answer, Plaintiffs' counsel may ask questions that have
been asked before.
However, Marino and his counsel will not be required to pay for the
video of the first or second deposition. The court-ordered
deposition was to be a discovery, and not a perpetuation,
deposition. While plaintiffs may have decided to videotape the
deposition as a precaution if Marino later becomes unavailable to
testify at trial, there was no requirement that the deposition be
videotaped. Accordingly, although the video may not be usable,
Marino will not be required to share in its cost.
Accordingly, the Motion for Relief Respecting Objections and
Deposition of Mr. Marino is granted in part and denied in part.
A full-text copy of the District Court's February 4, 2019 Order and
Reasons is available at https://tinyurl.com/y2y784du from
Leagle.com.
Taylor Carlisle, individually and as Representative Member of a
Class & Emile Heron, individually and as Representative Member of a
Class, Plaintiffs, represented by Marie Riccio Wisner, Law Offices
of Marie Riccio Wisner.
Joe McNair, Director of Counseling of the 24th JDC Drug Court
Intensive Probration Program & McNair & McNair, L.L.C., Defendants,
represented by Francis Horatio Brown, III -- fbrown@mcglinchey.com
-- McGlinchey Stafford, PLLC & Marshall Thomas Cox --
mcox@mcglinchey.com -- McGlinchey Stafford, PLLC.
Newell Normand, Sheriff and Administrator of the Jefferson Parish
Correctional Center, Defendant, represented by Daniel Rault
Martiny, Martiny & Associates & Jeffrey David Martiny, Martiny &
Associates.
Joseph A Marino, Jr, Staff Counsel of Louisiana Public Defender
Board; originally sued in Complaint and Amended Complaint as Joe
Marino, Defendant, represented by Ralph R. Alexis, III --
ralexis@phjlaw.com -- Porteous, Hainkel & Johnson, Corey D. Moll --
cmoll@phjlaw.com -- Porteous, Hainkel & Johnson & Glenn B. Adams --
gadams@phjlaw.com -- Porteous, Hainkel & Johnson.
JOHNSON & JOHNSON: Settles Hip Implant Claims for $120MM
--------------------------------------------------------
Courthouse News Service reported that Johnson & Johnson and its
subsidiaries agreed to pay $120 million to settle multistate claims
they misrepresented the safety, effectiveness and longevity of its
hip implant devices, the California attorney general announced on
Jan. 22.
KATE SPADE: Schertzer Sues over Phantom Discounts
-------------------------------------------------
A case, KRISTEN SCHERTZER, on behalf of herself and all others
similarly situated, the Plaintiff, vs. KATE SPADE & COMPANY, LLC, a
Delaware limited liability company, and DOES 1-50, inclusive, the
Defendant, Case No. 3:19-cv-00330-AJB-JLB (S.D. Cal., Feb. 15,
2019), targets Kate Spade's unlawful, unfair, and fraudulent
business practice of advertising fictitious prices and
corresponding phantom discounts on its Kate Spade branded and/or
trademarked lines of merchandise in violation of the California's
Unfair Competition Laws, California's False Advertising Laws, and
the California Consumer Legal Remedies Act.
According to the complaint, the practice of false reference pricing
occurs where a retailer fabricates a fake regular, original, and/or
former reference price, and then offers an item for sale at a deep
"discounted" price. The result is a sham price disparity that
misleads consumers into believing they are receiving a good deal
and induces them into making a purchase. The Retailers drastically
benefit from employing a false reference-pricing scheme and
experience increased sales.
Kate Spade is a worldwide fashion brand, specializing in the sale
of designer handbags, clothing, shoes, jewelry, accessories,
wallets, and more. Kate Spade is an international brand with stores
all over the world. Kate Spade directly markets its merchandise to
consumers in the State of California and throughout the United
States via its in-store advertisements and its e-commerce website
(www.katespade.com).[BN]
Attorneys for the Plaintiff and Proposed Class Counsel:
Jeffrey D. Kaliel, Esq.
Sophia Goren Gold, Esq.
KALIEL PLLC
1875 Connecticut Ave., NW, 10th Floor
Washington, D.C. 20009
Telephone: (202) 350-4783
E-mail: jkaliel@kalielpllc.com
sgold@kalielpllc.com
- and -
Todd D. Carpenter, Esq.
Alyshia K. Lord, Esq.
CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP
1350 Columbia Street, Ste. 603
San Diego, CA 92101
Telephone: 619 762 1910
Facsimile: 619 756 6991
E-mail: tcarpenter@carlsonlynch.com
alord@carlsonlynch.com
KLEEN PRODUCTS: May 1 Containerboard Settlement Hearing Set
-----------------------------------------------------------
If You Directly Purchased Containerboard Products Between February
15, 2004 through November 8, 2010, and Did Not Timely Exclude
Yourself from the Certified Litigation Class or the PCA or Norampac
Settlement Classes You are Members of These Classes and Your Rights
May Be Affected. If You are a Member of These Classes and Submitted
a Claim Form to the Settlement Administrator by July 15, 2018, You
are a Claimant and Your Rights as a Claimant and Distribution May
Be Affected.
What is this notice about?
Kleen Products LLC, et al., individually and on behalf of all those
similarly situated, v International Paper, et al, is a class action
lawsuit involving the price of Containerboard Products purchased
directly from the Defendants that is pending in the United States
District Court for the Northern District of Illinois.
"Containerboard Products" include linerboard, corrugated medium,
rollstock, corrugated sheets and corrugated products, including
displays, boxes and other containers.
This notice concerns distributions from settlements with: (i)
Defendants International Paper Company, Temple-Inland Inc. and
Weyerhaeuser Company ("Thee Defendant Settlement"), (ii) Packaging
Corporation of America ("PCA") ("PCA Settlement") and (iii)
Norampac Settlement ("Norampac Settlement").
On November 20, 2018, the Settlement Administrator began
distributing part of the Three-Defendant Settlement, as previously
approved by the Court. Claimants were advised of their Allowed
Claims, Allowed Purchase Amounts and Payment Amounts. Payments
were made via check or wire transfer.
The first listed motion provides for a second distribution of the
balance of the Three-Defendant Settlement Fund together with
distribution of the balance the PCA and Norampac Settlement Funds
to Qualified Claimants and to finalize Allowed Claims and
Claimants, Allowed Purchases and Payment Amounts. The other
motions are for (i) Reimbursement of Unpaid Expenses incurred by
class counsel or approximately $4,097, 184.26, (ii) for an award
of attorneys' fees from the PCA and Norampac Settlement Funds in
the amount of $6,370,000 (28.4%) plus accrued interest, and (iii)
for an award of incentive fees in the total amount of $350,000 for
the class representatives. You may view the motions at
www.containerboardproductscase.com
Who Is a Class Member and Claimant?
You are a Class Member if, between February 15, 2004 and
November 8, 2010, you purchased Containerboard Products directly
from any of the Defendants for use or delivery in the United States
and you did not request to be excluded from the lawsuit by December
5, 2016. You are a Claimant and subject of this Notice if you are
a Class Member and submitted a claim form to the Settlement
Administrator before July 15, 2018. A "Qualified Claimant"
submitted a timely and compliant Claim Form to the Settlement
Administrator by July 15, 2018, supported by such evidence as
required by the Claim Form or as otherwise determined by the
Settlement Administrator, signed under penalty or perjury by an
authorized person. Additional information is contained in the full
Notice available at www.containerboardproductscase.com
Do We Need to Re-Submit Claim Forms?
NO, new claim forms are not required and will not be accepted.
What are My Rights?
You will remain part of the PCA Settlement Class, the Norampac
Settlement Class and the Certified Litigation Class and will be
bound by any resulting orders. If you are a Qualified Claimant and
your Payment Amount is more than $10 you will receive your pro rata
share of any distributions.
Qualified Claimants may object to the Final Determinations of Your
Qualified Claims, Allowed Claims, Allowed Purchases and Payment
Amounts. You may also oppose any of the motions. If you oppose
any of the motions, you must support your opposition with
documentation establishing your right to oppose any motion and your
reasons for opposition.
Additional information about your rights may be obtained in the
manner referred to below.
Hearing Date
A Hearing is scheduled to be held at the United States District
Court for the Northern District of Illinois in Courtroom 1941 at
9:00 a.m. on May 1, 2019. The date and location for this hearing
may be changed on further Order of the Court.
This Is a Summary; Where Can I Get More Information?
You can get complete Settlement Information, including a copy of
the full Notice, by visiting www.containerboardproductscase.com,
calling 888-764-8864, or writing to Containerboard Products Class
Action, c/o A.B. Data, Ltd., P.O. Box 173014, Milwaukee, WI 53217.
Do not contact the Court about the Motions. If you have any
questions you may contact Co-Lead Counsel for the Class:
Michael J. Freed
FREED KANNER LONDON & MILLEN LLC
2201 Waukegan Rd., Suite 130
Bannockburn, IL 60015
Telephone: (224) 632-4500
Fax: (224) 632-4521
Daniel J. Mogin
THE MOGIN LAW FIRM, P.C.
707 Broadway, Suite 1000
San Diego, CA 92101
Telephone: (619) 687-6611
Fax: (619) 687-6610
LUMENTUM HOLDINGS: Oclaro Still Defends Karri Merger Lawsuit
------------------------------------------------------------
Lumentum Holdings Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 7, 2019, for the
quarterly period ended December 29, 2018, that Oclaro, Inc.
continues to defend itself from a class action suit entitled,
SaiSravan B. Karri v. Oclaro, Inc., et al.
Seven lawsuits were filed by purported stockholders of Oclaro
challenging Lumentum's acquisition of Oclaro.
Two of the seven suits were putative class actions filed against
Oclaro, its directors, Lumentum, Prota Merger Sub, Inc. and Prota
Merger, LLC: Nicholas Neinast v. Oclaro, Inc., et al., No.
3:18-cv-03112-VC, in the United States District Court for the
Northern District of California (filed May 24, 2018) (the "Neinast
Lawsuit"); and Adam Franchi v. Oclaro, Inc., et al., No.
1:18-cv-00817-GMS, in the United States District Court for the
District of Delaware (filed June 9, 2018) (the "Franchi Lawsuit").
Both the Neinstat Lawsuit and the Franchi Lawsuit were voluntarily
dismissed with prejudice.
The other five suits, styled as Gerald F. Wordehoff v. Oclaro,
Inc., et al., No. 5:18-cv-03148-NC (the "Wordehoff Lawsuit"),
Walter Ryan v. Oclaro, Inc., et al., No. 3:18-cv-03174-VC (the
"Ryan Lawsuit"), Jayme Walker v. Oclaro, Inc., et al., No.
5:18-cv-03203-EJD (the "Walker Lawsuit"), Kevin Garcia v. Oclaro,
Inc., et al., No. 5:18-cv-03262-VKD (the "Garcia Lawsuit"), and
SaiSravan B. Karri v. Oclaro, Inc., et al., No. 3:18-cv-03435-JD
(the "Karri Lawsuit"), were filed in the United States District
Court for the Northern District of California on May 25, 2018, May
29, 2018, May 30, 2018, May 31, 2018, and June 9, 2018,
respectively.
These five Lawsuits named Oclaro and its directors as defendants
only and did not name Lumentum. The Wordehoff, Ryan, Walker, and
Garcia Lawsuits have been voluntarily dismissed, and the Wordehoff,
Ryan, and Walker dismissals were with prejudice. The Karri Lawsuit
has not yet been dismissed. The Ryan Lawsuit was, and the Karri
Lawsuit is, a putative class action.
The Lawsuits generally alleged, among other things, that Oclaro and
its directors violated Section 14(a) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and Rule 14a-9
promulgated thereunder by disseminating an incomplete and
misleading Form S-4, including proxy statement/prospectus. The
Lawsuits further alleged that Oclaro's directors violated Section
20(a) of the Exchange Act by failing to exercise proper control
over the person(s) who violated Section 14(a) of the Exchange Act.
The remaining Lawsuit (the Karri Lawsuit) currently purports to
seek, among other things, damages to be awarded to the plaintiff
and any class if the Merger is consummated, and litigation costs,
including attorneys' fees. The defendants intend to defend the
Karri Lawsuit vigorously.
No further updates were provided in the Company's SEC report.
Lumentum Holdings Inc. manufactures and sells optical and photonic
products in the Americas, the Asia-Pacific, Europe, the Middle
East, and Africa. The company operates through two segments,
Optical Communications and Commercial Lasers. Lumentum Holdings
Inc. was incorporated in 2015 and is headquartered in Milpitas,
California.
MEDLEY CAPITAL: Faces 2 Merger-Related Class Suits in New York
--------------------------------------------------------------
Medley Capital Corporation said in its Form 8-K filing with the
U.S. Securities and Exchange Commission dated February 7, 2019,
that the company has been named as defendant in two merger-related
class action lawsuits in New York.
On January 25, 2019, two purported class actions were commenced in
the Supreme Court of the State of New York, County of New York, by
alleged stockholders of Medley Capital Corporation (MCC),
captioned, respectively, Helene Lax v. Brook Taube, et al., Index
No. 650503/2019 (the "Lax Action"), and Richard Dicristino, et al.
v. Brook Taube, et al., Index No. 650510/2019 (together with the
Lax Action, the "New York Actions").
Named as defendants in each complaint are Brook Taube, Seth Taube,
Jeffrey Tonkel, Arthur S. Ainsberg, Karin Hirtler-Garvey, John E.
Mack, Mark Lerdal, Richard T. Allorto, Jr., MCC, MDLY, Sierra, and
Sierra Management, Inc.
The complaints in each of the New York Actions allege that the
individuals named as defendants breached their fiduciary duties in
connection with the proposed MCC Merger, and that the other
defendants aided and abetted those alleged breaches of fiduciary
duties.
Plaintiffs also allege that Brook and Seth Taube, as alleged
controlling shareholders of MCC, breached fiduciary duties.
Compensatory damages in unspecified amounts are sought.
Medley Capital said, "The defendants believe the claims asserted in
the New York Actions are without merit and they intend to defend
these lawsuits vigorously."
Medley Capital Corporation is a business development company. The
fund seeks to invest in privately negotiated debt and equity
securities of small and middle market companies. The company is
based in New York, New York.
MINDBODY INC: Stockholder Files Class Action Complaint
------------------------------------------------------
Lindsay Zuchelli, writing for KSBY San Luis Obispo News, reports
that a class action complaint has been filed against San Luis
Obispo-based MINDBODY and the company's Board of Directors over
plans to sell the tech company.
The complaint was filed on Jan. 24 in San Luis Obispo County
Superior Court on behalf of a plaintiff, Joseph Schmit, as well as
other stockholders in the company.
The complaint names MINDBODY, Inc, as well as its Co-Founder and
CEO, Rick Stollmeyer, and seven others affiliated with the
company.
It says the company breached its fiduciary duty by selling the
company to affiliates of Vista Equity Partners.
In December, MINDBODY announced it had entered in an agreement to
be acquired by Vista Equity Partners for $1.9 billion.
At the time, Stollmeyer released a statement in a press release
saying, "MINDBODY's purpose is to help people lead healthier,
happier lives by connecting the world to fitness, beauty, and
wellness. We are thrilled to provide immediate liquidity to our
shareholders at a significant premium to market prices and to
leverage Vista's resources and deep expertise to accelerate our
growth while achieving that purpose more effectively than ever
before."
The complaint, however, claims the sale process and buying price
were unfair.
Stockholders will receive $36.50 in cash for each share of MINDBODY
as part of the sale, according to court documents. The complaint
says the company had traded as high as $45.50 per share within the
past year.
The complaint reads in part, "defendants have accepted an offer to
sell MINDBODY at a price that fails to reflect the true value of
the company, thus depriving stockholders of the reasonable, fair,
and adequate value of their shares."
The plaintiff is demanding a jury trial in the case.
KSBY reached out to MINDBODY for comment.
A spokesperson for the company said due to SEC regulations, the
company is unable to comment on anything involving the acquisition
outside of information included in a press release on Dec. 24.
MINDBODY provides tech products to customers in the health and
wellness industry.
As of last update, the sale to Vista Equity Partners was expected
to be completed in the first quarter of 2019.[GN]
NCAA: Schmitz Sues over Health Issues of Richmond Student-Athletes
------------------------------------------------------------------
YVONNE SCHMITZ, as Administrator of the Estate of Kurt M. Schmitz,
individually and on behalf of all similarly situated individuals,
the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION and
UNIVERSITY OF RICHMOND, the Defendant, Case No.
1:19-cv-00689-SEB-DLP (S.D. Ind. Feb. 15, 2019), seeks redress for
injuries sustained a result of Defendant's reckless disregard for
the health and safety of University of Richmond ("Richmond")
student-athletes.
According to the complaint, nearly 100,000 student-athletes sign up
to compete in college football each year, and it's no surprise why.
Football is America's sport and the Plaintiff and a Class of
football players were raised to live and breathe the game. During
football season, there are entire days of the week that millions of
Americans dedicate to watching the game. On game days, hundreds of
thousands of fans fill stadium seats and even more watch around the
world. Before each game, these players -- often mere teenagers --
are riled up and told to do whatever it takes to win and, when
playing, are motivated to do whatever it takes to keep going.
But up until 2010, NCAA kept players and the public in the dark
about an epidemic that was slowly killing college athletes. During
the course of a college football season, athletes absorb more than
1,000 impacts greater than 10 Gs (gravitational force) and, worse
yet, the majority of football-related hits to the head exceed 20
Gs, with some approaching 100 Gs. To put this in perspective, if
you drove your car into a wall at 25 miles per hour and weren't
wearing a seatbelt, the force of you hitting the windshield would
be around 100 Gs. Thus, each season these 18, 19, 20, and
21-year-old student-athletes are subjected to repeated car
accidents.
Over time, the repetitive and violent impacts to players' heads led
to repeated concussions that severely increased their risks of
long-term brain injuries, including memory loss, dementia,
depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's
disease, and other related symptoms. Meaning, long after they
played their last game, they are left with a series of neurological
events that could slowly strangle their brains. For decades, 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.
While in school, Richmond football players were under Defendant's
care. Unfortunately, Defendant did not care about the off-field
consequences that would haunt students for the rest of their lives.
Despite knowing for decades of a vast body of scientific research
describing the danger of traumatic brain injuries ("TBIs") like
those Plaintiff experienced, Defendant failed to implement adequate
procedures to protect Plaintiff and other Richmond football players
from the long-term dangers associated with them. They did so
knowingly and for profit.
NCAA is a non-profit organization which regulates athletes of 1,268
North American institutions and conferences.[BN]
Counsel for Plaintiff and the Putative Class:
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Telephone: (713) 554 9099
Facsimile: (713) 554 9098
E-mail: efile@raiznerlaw.com
- and -
Jay Edelson, Esq.
Benjamin H. Richman, Esq.
Rafey S. Balabanian, Esq.
EDELSON PC
350 North LaSalle Street, 14th Floor
Chicago, IL 60654
Telephone: (312) 589 6370
Facsimile: (312) 589 6378
E-mail: rbalabanian@edelson.com
jedelson@edelson.com
brichman@edelson.com
NEW HAMPSHIRE: State Workers Seek Payback of Union Fees
-------------------------------------------------------
U.S. News & World Report, reports that two New Hampshire state
workers have filed a class-action lawsuit in federal court against
the union representing state employees seeking payback of
obligatory union fees.
Patrick Doughty and Randy Severance, who are not union members,
sued the State Employees' Association of New Hampshire, SEIU Local
1984, on Jan. 14. They asked a judge to order union officials to
refund fees taken from their wages and other New Hampshire public
employees.
They point to a U.S. Supreme Court ruling last year that said
government workers can't be forced to contribute to labor unions
that represent them in collective bargaining.
A response from lawyers representing the union had not been filed
yet. A message seeking comment was sent to the union.
The National Right to Work Legal Defense Foundation assisted with
the lawsuit.[GN]
NEW WORLD: "Van Jacobs" Suit Alleges BIPA Violation
---------------------------------------------------
Janette Van Jacobs, individually and on behalf of all others
similarly situated v. New World Van Lines, Case No. 2019CH02619
(Ill. Cir., February 27, 2019), is brought against the Defendant
for violation of the Biometric Information Privacy Act (BIPA).
Notwithstanding the clear and unequivocal requirements of the law,
Defendant disregards its employees' statutorily protected privacy
rights and unlawfully collects, stores, disseminates, and uses
employees' biometric data in violation of BIPA.
The Plaintiff Janette Van Jacobs worked for Defendant from
approximately November 5, 2015 to approximately February 21, 2019.
Plaintiff worked for Defendant as a Fleet Coordinator from
approximately November 5, 2015 until approximately October 2017, at
which point she transferred departments. She worked as a Safety
Coordinator from approximately October 2017 to approximately
February 21, 2019.
The Defendant New World Van Lines, Inc. is a corporation organized
and existing under the laws of the State of Illinois with its
principal place of business located at 5875 N. Rodgers Ave.,
Chicago, IL, 60646. New World Van Lines, Inc. provides corporate
relocation services and logistics management. [BN]
The Plaintiff is represented by:
Ryan F. Stephan, Esq.
James B. Zouras, Esq.
Andrew C. Ficzko, Esq.
STEPHAN ZOURAS, LLP
100 N. Riverside Plaza Ste 2150
Chicago, IL 60606
Tel: (312) 233-1550
Fax: (312) 233-1560
E-mail: rstephan@stephanzouras.com
jzouras@stephanzouras.com
aficzko@stephanzouras.com
ONLINE INFORMATION: Soifer Asserts Violation under FDCPA New York
-----------------------------------------------------------------
A class action lawsuit has been filed against Online Information
Services, Inc. The case is styled as Tzipra Soifer, on behalf of
herself and all other similarly situated consumers, Plaintiff v.
Online Information Services, Inc., Defendant, Case No.
1:19-cv-01154 (E.D. N.Y., February 27, 2019).
The docket of the case states the nature of suit as Consumer Credit
filed pursuant to the Fair Debt Collection Practices Act.
ONLINE Information Services, Inc. helps to eliminate bad debt for
their clients in two specific ways: point-of-application risk
assessment and bad-debt recovery.[BN]
The Plaintiff is represented by:
Adam Jon Fishbein, Esq.
Adam J. Fishbein, P.C.
735 Central Avenue
Woodmere, NY 11598
Tel: (516) 668-6945
Email: fishbeinadamj@gmail.com
ORACLE CORP: Female Workers in Gender-Bias Suit Seek Class Status
-----------------------------------------------------------------
Ethan Baron, writing for The Mercury News, reports that software
giant Oracle paid some of its female employees more than $13,000
less than men in equivalent jobs, according to a report filed in a
gender-bias lawsuit against the company.
The plaintiffs are asking for class action status, seeking to bring
in thousands of other women who work or have worked in several
departments at the Redwood City firm since 2013.
UC Irvine economist David Neumark's report on the alleged pay
disparity for some women at Oracle was submitted to support the six
plaintiffs' bid for class action certification, Wired reported on
Jan. 18.
The class of employees would include 4,200 female workers in the
firm's product development, information technology, and support
functions, according to Wired.
"The analysis found that most of the difference in earnings between
men and women stemmed from bonuses and stock grants, rather than
base pay," Wired reported. "Women's base pay was 3.8 percent less
than comparable men, according to the analysis. But women's
bonuses, on average, were 13.2 percent less than men in the same
job codes; for stock grants, the disparity was 33.1 percent."
Oracle, led by executive chairman Larry Ellison — reportedly the
10th-richest person on the planet with an estimated worth of $59
billion — declined to comment on the reported pay disparity.
Neumark concluded that the difference in compensation resulted from
Oracle's practice of relying on employees' previous pay when
setting initial salaries, according to Wired.
The firm stopped looking at previous pay in October 2017 when
California Gov. Jerry Brown signed a law banning employers from
asking about salary histories, Wired reported.
The lawsuit was filed in 2017 in San Mateo County Superior Court by
engineers Rong Jewett, Sophy Wang and Xian Murray, with three
additional plaintiffs joining later.
Google is fighting a similar lawsuit, and has denied having a
gender pay gap.[GN]
OREGON: Faces Class Action Over Shortened School Day
----------------------------------------------------
Robert Kahn, writing for Courthouse News Service, reported that a
federal class action accuses the Oregon Department of Education of
rolling out an illegally shortened school day on hundreds of
children.
A copy of the Complaint is available at:
https://is.gd/2HUeJv
The case is J.N., et al. v. Oregon Department of Education, et al.,
Case No. 19-cv-00096 (D. Or.).
ORNUA FOODS: Court Dismisses Myers-Taylor Consumer Fraud Suit
-------------------------------------------------------------
The United States District Court for the Southern District of
California issued an Order granting Defendant's Motion to Dismiss
in the case captioned DYAMI MYERS-TAYLOR, Plaintiff, v. ORNUA FOODS
NORTH AMERICA, INC.; ORNUA CO-OPERATIVE LIMITED; and DOES 1 through
25, inclusive, Defendants. Case No. 3:18-cv-01538-H-MDD. (S.D.
Cal.).
Defendants Ornua Foods North America, Inc. and Ornua Co-operative
Limited filed a motion to dismiss Plaintiff Dyami Myers-Taylor's
first amended complaint.
The Defendants manufacture, package, market, advertise, distribute,
and sell a brand of butter products called Kerrygold in California
and throughout the United States. the Plaintiff alleges that the
Defendants' advertising and labeling is false, deceptive, or
misleading because it conveys to the Plaintiff and similarly
situated consumers the false impression that the Kerrygold Products
are derived from cows that are 100% grass fed.
The Defendants argue that the Plaintiff's complaint should be
dismissed for failure to state a claim. The Plaintiff alleges
claims for: (1) violations of California's UCL, FAL, and CLRA (2)
fraud; (3) negligent misrepresentation (4) unjust enrichment and
(5) breach of express warranty.
The Defendants argue that the Plaintiff has failed to meet the
pleading requirements for each cause of action. In opposition, the
Plaintiff argues that: (1) his complaint alleges his claims with
the specificity required by Rule 9(b), (2) the Defendants' labeling
and advertising misleads consumers into believing that the
Defendants' cows are 100% grass-fed, and (3) whether the
Plaintiff's complaint meets the reasonable consumer standard is a
factual issue. The Court concludes that the Plaintiff has failed to
state a claim under Rule 12(b)(6) and his complaint should be
dismissed.
UCL, FAL, and CLRA Claims
California's UCL prohibits any unlawful, unfair or fraudulent
business act or practice and unfair, deceptive, untrue or
misleading advertising. California's FAL prohibits any unfair,
deceptive, untrue or misleading advertising. California's CLRA
prohibits unfair methods of competition and unfair or deceptive
acts or practices.
Defendants argue that Plaintiff's UCL, FAL, and CLRA claims fail
because: (1) Defendants' statements are not misleading; and (2)
Plaintiff's interpretation of Defendants' statements fails to meet
the reasonable consumer standard. Plaintiff argues that whether his
claims meet the reasonableness standard is a question of fact not
suitable for dismissal. The Court has considered the parties
arguments and concludes that a reasonable consumer could not be led
to believe that Plaintiff's interpretation that Defendants'
products are derived from cows that are fed 100% grass.
Plaintiff's UCL, FAL, and CLRA claims are grounded in fraud and
therefore must meet the Rule 9(b) pleading standard. Plaintiff
alleges that Defendants' use of phrases like Milk From Grass-Fed
Cows and Natural misled him and other similarly situated
individuals into believing that Defendants' butter products came
from cows that were fed only grass. However, the Kerrygold product
packaging indicates that the butter is derived from cows that are
grass-fed, but at no point states that the cows are 100% grass-fed.
In support of this, Defendants have a trademark on the Kerrygold
logo, which includes the phrase Milk From Grass-Fed Cows. As a
prerequisite to acquiring a trademark registration in the United
States, a mark must not be deceptively misdescriptive of the
product.
Plaintiff alleges that he was misled into believing that
Defendants' cows were fed 100% grass based on misrepresentations
made on the Kerrygold website. But, Plaintiff also refers to
portions of the Kerrygold website where Defendants expressly state
that their cows are fed between 85% and 90% grass. Thus,
Plaintiff's conclusion that a significant portion of the general
consuming public, acting reasonably, would be led to believe that
they are purchasing butter that is derived from cows that were fed
only grass is unsupported.
With regards to Defendants' labeling and advertising as Natural and
100% Pure and Natural, Plaintiff fails to identify how such
statements are false or misleading. Plaintiff does not specifically
identify where such statements appear, other than broadly stating
that they appear in advertising and on Defendants' website.
Plaintiff also fails to offer an objective or plausible definition
for claims that the products are natural. Thus, Plaintiff has
failed to meet the Rule 9(b) pleading standard for such
statements.
Therefore, the Court dismisses Plaintiff's claims for violations of
California's UCL, FAL, and CLRA.
Fraud and Negligent Misrepresentation
To state a claim for common law fraud, a plaintiff must allege a
misrepresentation, knowledge of falsity, intent to defraud,
justifiable reliance, and resulting damages. Under California law,
the elements of negligent misrepresentation are (1) the
misrepresentation of a past or existing material fact, (2) without
reasonable ground for believing it to be true (3) with intent to
induce another's reliance on the fact misrepresented (4)
justifiable reliance on the misrepresentation and (5) resulting
damage.
Plaintiff's claims for common law fraud and negligent
misrepresentation are based on the same theory as the statutory
claims Plaintiff alleges that Defendants, by using the phrases Milk
From Grass-fed Cows, Made with milk from grass-fed cows not treated
with rBST or other growth hormones, Natural and 100% Pure and
Natural, represented to consumers that Kerrygold butter is derived
from cows that are fed only grass and no other supplemental feed.
However, as discussed above, Defendants do not represent that their
cows are fed 100% grass. Rather, Defendants disclose on the
Kerrygold websites that the cows are fed primarily grass.
The Court dismisses Plaintiff's claims for fraud and negligent
misrepresentation.
Unjust Enrichment
Plaintiff alleges a claim for unjust enrichment. Unjust enrichment
is not a cause of action or even a remedy, but rather a general
principle, underlying various legal doctrines and remedies. It is
synonymous with restitution. In Levine v. Blue Shield of Cal., 189
Cal.App.4th 1117, 1138 (2010), the court held there is no cause of
action in California for unjust enrichment. However, unjust
enrichment describes the theory underlying a claim that a defendant
has been unjustly conferred a benefit through mistake, fraud,
coercion, or request. When a plaintiff alleges unjust enrichment, a
court may `construe the cause of action as a quasi-contract claim
seeking restitution.
Here, although Plaintiff has not explicitly pled a quasi-contract
claim, the Court construes his unjust enrichment claim as a
quasi-contract claim. The Ninth Circuit in Astiana, Astiana, 783
F.3d at 762, held that allegations that the defendant had enticed
plaintiffs to purchase their products through false and misleading
labeling and was unjustly enriched as a result were sufficient to
form the basis for a quasi-contract claim. Thus, in order to
succeed in an unjust enrichment claim, a plaintiff must show some
fraud. See id. Here, Plaintiff's quasi-contract claim fails
because, as discussed above, Plaintiff has failed to allege any
fraudulent or misleading labeling with the specificity required by
Rule 9(b). When Plaintiff purchased Kerrygold products, he received
butter that was derived from cows that were grass-fed.
The Court dismisses Plaintiff's quasi-contract claim for unjust
enrichment.
Breach of Express Warranty
California Commercial Code Section 2313 provides: (a) Any
affirmation of fact or promise made by the seller to the buyer
which relates to the goods and becomes part of the basis of the
bargain creates an express warranty that the goods shall conform to
the affirmation or promise and (b) Any description of the goods
which is made part of the basis of the bargain creates an express
warranty that the goods shall conform to the description. To
adequately plead a cause of action for breach of express warranty,
one must allege the exact terms of the warranty, plaintiff's
reasonable reliance thereon, and a breach of that warranty which
proximately causes plaintiff injury. Statements made by a
manufacturer on a product label can be construed as express
warranty statements.
Plaintiff alleges that Defendants made affirmations that Kerrygold
products contain Milk from Grass-Fed Cows and were Made with milk
from grass-fed cows not treated with rBST or other growth hormones
and by appearing on product labels and the Kerrygold website, such
statements formed the basis of the bargain on which Plaintiff and
the putative California Class relied in purchasing Kerrygold
products. However, Plaintiff fails to show any breach by
Defendants. Plaintiff received a butter product that was derived
from cows that were grass-fed. Defendant did not make any warranty
that the products were derived from cows that were fed only grass.
Plaintiff could not have reasonably relied on Defendants'
representations to infer that the cows were fed only grass.
Accordingly, the Court dismisses the Plaintiff's claim for breach
of express warranty.
The Court grants the Defendants' motion to dismiss, and the Court
dismisses the Plaintiff's complaint without prejudice.
A full-text copy of the District Court's February 4, 2019 Order is
available at https://tinyurl.com/y6d72umh from Leagle.com.
Dyami Myers-Taylor, an individual on behalf of himself and all
others similarly situated and the general public, Plaintiff,
represented by Ross Cornell -- ross.law@me.com -- & Reuben D.
Nathan -- rnathan@nathanlawpractice.com -- Nathan & Associates,
APC.
Ornua Foods North America, Inc. & Ornua Co-operative Limited,
Defendants, represented by Douglas Andrew Thompson --
douglas.thompson@bclplaw.com -- Bryan Cave LLP & Merrit M. Jones --
merrit.jones@bclplaw.com -- Bryan Cave Leighton Paisner LLP.
OZARK MOUNTAIN: Hearing Set in Solid Waste Service Fee Lawsuit
--------------------------------------------------------------
Scott Liles, writing for Baxter Bulletin, reports that a hearing to
discuss potential summary judgments regarding a lawsuit over an $18
service fee that is being added to property tax bills in the Ozark
Mountain Solid Waste District has been scheduled for next month.
Carroll County Circuit Judge Scott Jackson scheduled the meeting on
Feb. 6, at 1 p.m. in the Carroll County Eastern District Courthouse
in Berryville, online court records indicate. The hearing was
placed on the calendar after the attorneys in a class-action
lawsuit against the solid waste district asked the judge last month
to consider issuing a summary judgement.
Filing a motion for a summary judgement is a common part of legal
procedures. It asks that Jackson rule in favor of the plaintiff,
Carroll County landowner Paul Summers, based on facts already
established in the case.
The Ozark Mountain Solid Waste District is comprised of Baxter,
Boone, Carroll, Marion, Newton and Searcy counties.
A court-ordered $18 solid waste service fee was levied last year
against landowners in those six counties to repay bondholders who
purchased $12.3 million in bonds issued by the solid waste district
in 2005 to finance the purchase of the North Arkansas Board of
Regional Sanitation (NABORS) Landfill in Three Brothers.
The solid waste service fee, which could continue to be collected
for 30 years or more, is also intended to repay the Arkansas
Department of Environmental Quality for up to $16.5 million in
costs related to closing and cleaning up the defunct landfill.
Pulaski County Circuit Judge Tim Fox ordered the $18 fee be applied
to property owners in the district's six counties. Fox's order
followed the recommendation of Geoffrey Treece, Esq. --
gtreece@qgtlaw.com -- a Little Rock lawyer who was appointed by Fox
to serve as a receiver for the solid waste district.
Fayetteville attorneys Matt Bishop, Esq. -- matt@bishoplawfirm.org
-- and Wendy Howerton, Esq. filed the lawsuit on behalf of Summers
and other landowners last May in Carroll County Circuit Court.
Defendants identified in the lawsuit include the solid waste
district and Carroll County Tax Collector Kay Phillips.
The two attorneys have since filed similar lawsuits in the five
other counties where the $18 service fee is being collected. Those
suits name the solid waste district and that county's tax
collectors as defendants.
Summers' lawsuit alleges that the annual $18 service fee
constitutes a tax on property owners in the six counties and is an
"illegal exaction," that violates the separation of powers clause
in the Arkansas Constitution. The lawsuit also argues that the
solid waste district does not have the authority to impose a fee
without providing services in return and that the fee is excessive
A cross motion filed Jan. 11 by Little Rock attorney Mary-Tipton
Thalheimer, Esq. -- mthalheimer@qgtlaw.com -- in response to the
motion for a summary judgement asks Jackson to instead issue a
judgement in favor of the solid waste district in the Carroll
County lawsuit.
Thalheimer stepped in to represent Treece in the suit after Bishop
and Howerton argued that the receiver had no standing to intervene
on behalf of the solid waste district. Jackson has yet to rule on
that contention.
Thalheimer argues that the lawsuit amounts to a "collateral attack"
against the Pulaski Court's ruling imposing the $18 service fee,
essentially attacking the original judgement through a method other
than direct appeal.
She also argues that the $18 assessment is not a tax but a service
fee authorized under state laws that permit solid waste districts
to collect fees or charges under a variety of conditions. ADEQ is
also empowered to seek civil action against a solid waste district
to recover state funds spent on cleaning or closing a landfill, she
notes.[GN]
PAYPAL HOLDINGS: Sgarlata Securities Action Still Ongoing
---------------------------------------------------------
PayPal Holdings, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 7, 2019, for
the fiscal year ended December 31, 2018, that the plaintiffs have
filed a second amended complaint in the case, Sgarlata v. PayPal
Holdings, Inc., et al.
In November 2017, the company announced that it had suspended the
operations of TIO Networks ("TIO") as part of an ongoing
investigation of security vulnerabilities of the TIO platform. On
December 1, 2017 the company announced that it had identified
evidence of unauthorized access to TIO's network, including
locations that stored personal information of some of TIO's
customers and customers of TIO billers and the potential compromise
of personally identifiable information for approximately 1.6
million customers.
The company have received a number of governmental inquiries,
including from state attorneys general, and the company may be
subject to additional governmental inquiries and investigations in
the future.
In addition, on December 6, 2017, a putative class action lawsuit
captioned Sgarlata v. PayPal Holdings, Inc., et al., Case No.
3:17-cv-06956 was filed in the Court against the Company, its Chief
Executive Officer, its Chief Financial Officer and Hamed Shahbazi,
the former chief executive officer of TIO (the "Defendants")
alleging violations of federal securities laws.
Specifically, the lawsuit alleges that Defendants made false or
misleading statements or failed to disclose that TIO's data
security program was inadequate to safeguard the personally
identifiable information of its users, those vulnerabilities
threatened continued operation of TIO's platform, the Company's
revenues derived from TIO services were thus unsustainable, and
consequently, the Company overstated the benefits of the TIO
acquisition, and, as a result, the Company's public statements were
materially false and misleading at all relevant times.
The plaintiff who initiated the lawsuit sought to represent a class
of shareholders who acquired shares of the Company's common stock
between February 14, 2017 through December 1, 2017 and sought
damages and attorneys'fees, among other relief.
On March 16, 2018, the Court appointed two new plaintiffs, not the
original plaintiff who filed the case, as interim co-lead
plaintiffs in the case and appointed two law firms as interim
co-lead counsel. On June 13, 2018, the interim co-lead plaintiffs
filed an amended complaint, which named TIO Networks ULC, TIO
Networks USA, Inc., and John Kunze (the Company's Vice President,
Global Consumer Products and Xoom) as additional defendants.
The amended complaint is purportedly brought on behalf of all
persons other than the Defendants who acquired the Company's
securities between November 10, 2017 and December 1, 2017. The
amended complaint alleges that the Company's and TIO's November 10,
2017 announcement of the suspension of TIO's operations was false
and misleading because the announcement only disclosed security
vulnerabilities on TIO's platform, rather than an actual security
breach that Defendants were allegedly aware of at the time of the
announcement.
Defendants' filed their motion to dismiss the amended complaint on
July 13, 2018 and the Court heard oral argument on the motion to
dismiss on September 20, 2018.
On December 13, 2018, the Court dismissed Plaintiff's amended
complaint without prejudice. Plaintiffs filed a second amended
complaint on January 14, 2019.
PayPal Holdings said, "We may be subject to additional litigation
relating to TIO's data security platform or the suspension of
TIO’s operations in the future."
PayPal Holdings, Inc. operates as a technology platform and digital
payments company that enables digital and mobile payments on behalf
of consumers and merchants worldwide. PayPal Holdings, Inc. was
founded in 1998 and is headquartered in San Jose, California.
PPG INDUSTRIES: Reaches $7.65MM Settlement With Retirees
--------------------------------------------------------
Joyce Gannon, writing for Pittsburgh Post-Gazette, reports that
PPG has reached a $7.65 million settlement deal with thousands of
retirees who claimed the Pittsburgh coatings maker cut their health
care benefits by shifting them out of a company-paid insurance
plan.
The settlement agreement, filed in federal court in Columbus, Ohio,
involves a class-action case involving about 6,000 PPG retirees.
PPG declined to comment.
The suit was filed in 2005 on behalf of past and future PPG
retirees who worked at 13 PPG facilities including several in the
Pittsburgh region: a coatings plant in Springdale, and
now-shuttered facilities in East Deer, Ford City, and Greensburg.
The suit claimed Downtown-based PPG violated the workers'
collective bargaining agreements when it changed their health-care
plans from company-paid to subsidized health reimbursement plans.
Workers -- who were represented by the United Steelworkers, the
International Association of Machinists and several chemical
workers' unions -- claimed they were entitled to lifetime health
care benefits from PPG.
The settlement, which is pending final court approval, calls for
PPG to distribute to the funds to the retirees' through health
reimbursement accounts.[GN]
PRO UNLIMITED: Valdez Files Suit in Cal. Super. Ct. San Francisco
-----------------------------------------------------------------
A class action lawsuit has been filed against PRO Unlimited Inc. a
New York Corporation. The case is styled as Josephina Valdez, an
individual on behalf of herself and all others similarly situated,
Plaintiff v. PRO Unlimited Inc. a New York Corporation, PRO
Unlimited Global Solutions Inc. a Delaware corporation, Genentech
USA Inc. a Delaware corporation and Does 1 to 10, inclusive,
Defendants, Case No. CGC19574146 (Cal. Super. Ct. San Francisco
Cty., February 27, 2019).
The docket of the lawsuit states the case type as other non exempt
complaints.
PRO Unlimited, Inc. develops contingent workforce management
solutions for Global and Fortune 500 companies worldwide. The
company provides vendor-neutral Managed Services Program model that
helps clients to manage procurement, selection, engagement, and
tracking of contingent workers, including independent contractors,
1099 workers, consultants, temps, and freelancers; and Vendor
Management System (VMS), a software-as-a-service based platform
that brings contingent workforce management, statement of work
based engagements, independent contractor utilization, and
self-sourced contractors into a centralized platform, helping
control quality and cost, and driving compliance.[BN]
The Plaintiff is represented by:
Walter Lewis Haines, Esq.
United Employees Law Group
5500 Bolsa Ave, Ste 201
Huntington Beach, CA 92649-1102
Tel: (562) 256-1047
Fax: (562) 256-1006
Email: whaines@uelglaw.com
- and –
David R. Markham, Esq.
The Markham Law Firm
750 B Street, Suite 1950
San Diego, CA 92101
RESOLUTE ENERGY: Faces Shareholder Class Action in Colorado
-----------------------------------------------------------
Robert Kahn, writing for Courthouse News Service, reported that in
a federal class action, shareholders claim directors of Resolute
Energy Corp. omitted and misrepresented important information
regarding its $1.6 billion merger with Cimarex.
A copy of the Complaint is available at:
https://is.gd/OglIGJ
The case is Wong v. Resolute Energy Corporation, et al., Case No.
19-cv-00183 (D. Colo.).
RIPPLE LABS: Hires Stuart Alderoty as New General Counsel
---------------------------------------------------------
The Block reports that Ripple has hired Stuart Alderoty as its new
general counsel, filling a position that has been vacant since
September, the company has announced in a press release.
Before joining the startup, Mr. Alderoty was an executive vice
president, general counsel and corporate secretary at US bank CIT.
At Ripple, he will be responsible for overseeing all legal services
as well as the management of its global legal, policy and Bank
Secrecy Act (BSA) compliance teams.
"Blockchain technology is transforming the financial services
industry and Ripple has been at the forefront for both its
technology and thoughtful approach to policy," said Mr. Alderoty.
"I am thrilled to join Ripple and work alongside this great team
Brad has assembled as we find new ways to partner with leading
policymakers and continue to create significant solutions for
Ripple's users and end-customers throughout the world."
The new general counsel will have his hands full. Currently, Ripple
is facing a consolidated class-action lawsuit alleging that the
$XRP token, a cryptocurrency associated with Ripple, is, in fact, a
security issued by the company. In November, the lawsuit was moved
to a federal court. [GN]
RYB EDUCATION INC: Stull Stull Files Securities Class Action Suit
-----------------------------------------------------------------
Stull, Stull & Brody disclosed that a class action lawsuit has been
filed on behalf of purchasers of the securities of RYB Education,
Inc. ("RYB" or the "Company") (NYSE:RYB), pursuant and/or traceable
to the Company's September 27, 2017 initial public offering
("IPO").
The investigation concerns whether RYB's filings with the U.S.
Securities and Exchange Commission in connection with the IPO
contained untrue statements of material fact or omitted material
information, thereby injuring investors.
Investors who purchased or otherwise acquired RYB's securities
pursuant and/or traceable to the IPO may contact Stull, Stull &
Brody, by email to RYB@ssbny.com, by telephone at 1-212-687-7230,
Ext. 147, or by fax to 1-212-490-2022.
You may retain Stull, Stull & Brody, or other counsel of your
choice, to serve as your counsel in this action.
Michael Klein, Esq.
Stull, Stull & Brody
Telephone: 1-212-687-7230, Ext. 147
Fax: 1-212-490-2022
Email: RYB@ssbny.com
mklein@ssbny.com [GN]
SAMSONITE COMPANY: "Schertzer" Suit Alleges False Advertising
-------------------------------------------------------------
Kristen Schertzer, on behalf of herself and all others similarly
situated v. Samsonite Company Stores, LLC and Does 1-100,
inclusive., Case No. 37-2019-00011100 (Cal. Super. Ct., San Diego
Cty., February 27, 2019), is brought against the Defendants for
violation of the California's Unfair Competition Laws, False
Advertising Laws and California Consumer Legal Remedies Act.
Through its false and misleading marketing, advertising, and
pricing scheme, the Defendant violated and continues to violate
California and federal law prohibiting advertising goods for sale
as discounted from former prices which are false, and prohibiting
misleading statements about the existence and amount of price
reductions.
The Plaintiff Kristen Schertzer resides in San Diego County,
California.
The Defendant Samsonite Company Stores, LLC is an Indiana limited
liability company with its principal executive offices in
Mansfield, Massachusetts. It operates as a subsidiary of Samsonite
International S.A. Defendant designs, manufactures, advertises,
markets, distributes, and sells travel luggage and accessories to
hundreds of thousands of consumers in California and throughout the
United States. [BN]
The Plaintiff is represented by:
Todd D. Carpenter, Esq.
CARLSON LYNCH SWEET KILPELA &
CARPENTER, LLP
1350 Columbia St., Ste 603
San Diego, CA 92101
Tel: (619) 762-1900
Fax: (619) 756-6990
E-mail: tcarpenter@carlsonlynch.com
SIX FLAGS: Fingerprint Taken Could Clear Way for Lawsuit
--------------------------------------------------------
Andrew Keshner, writing for MarketWatch, reports that the
fingerprint a teenager gave to get a Six Flags season pass was
enough of an injury to let him launch a class-action case,
Illinois's top court concluded on Jan. 25.
The case could have big implications for privacy protections, while
also unleashing a rollercoaster ride for businesses bracing for a
spike in class-action suits, experts say.
The decision only focused on whether a mere thumbprint -- and no
other alleged harm -- made him an "aggrieved" person eligible to
even bring a case. It didn't discuss whether the amusement park was
at fault for taking the print.
The ruling comes amid intense focus on Americans' increasing loss
of control over their personal data, as security breaches seem to
grow more common by the day. Meanwhile, class-action cases --
though increasingly confined by recent U.S. Supreme Court rulings
-- are still something businesses have to deal with in a big way.
The Jan. 25 Illinois Supreme Court case started with 14-year-old
Alexander Rosenbach's spring 2014 school trip to a Six Flags Great
America amusement park in Gurnee, Ill.
The eighth grader's mom bought him a season pass ahead of time.
Alexander arrived at the park and gave a thumbprint to claim his
pass. Rosenbach's mom never knew fingerprints would be part of the
deal until her son told her later that day.
Rosenbach sued the theme park under the state's Biometric
Information Privacy Act. The 2008 law says how data should be
handled for things like fingerprints, voice matches and eye scans.
The case was a proposed class-action case for anyone who was ever
fingerprinted at that park.
Six Flags was wrong to get the print without first getting releases
or flagging that such a scan would be necessary, Rosenbach's
lawyers said.
Six Flags countered that Alexander didn't get tricked into giving
his prints, and argued that his mom even accessed a website which
described the tickets as "biometric" season passes.
The Jan. 25 ruling overruled a lower court to say Rosenbach didn't
need to show an "actual injury" other than a violation of his
rights under the privacy act.
"We have seen over and over again how private companies collect
this information and store and use it for purposes that the owner
of the information has no clue about," says Rebecca Glenberg, Esq.
senior staff attorney, American Civil Liberties Union of Illinois.
[GN]
SOLO HEALTHCARE: Rodich-Annese Files Class Suit in New Jersey
-------------------------------------------------------------
A class action lawsuit has been filed against Solo Healthcare U.S.,
LLC. The case is styled as Valerie Rodich-Annese, individually and
on behalf of all others similarly situated, Plaintiff v. Solo
Healthcare U.S., LLC, Zhejiang Huahai Pharmaceuticals and Prinston
Pharmaceutical Inc., Defendants, Case No. 1:19-cv-07161 (D. N.J.,
February 27, 2019).
The docket of the lawsuit states the case type as other.
Solo Healthcare U.S., LLC is engaged in health care services.[BN]
The Plaintiff is represented by:
D. Aaron Rihn, Esq.
Robert Peirce & Associates, P.C.
707 Grant Street
Suite 2500
Pittsburgh, PA 15219
Tel: (412) 281-7229
Fax: (412) 281-4229
SOUTHWEST CREDIT: Persinger Asserts Breach of FDCPA in Indiana
--------------------------------------------------------------
A class action lawsuit has been filed against Southwest Credit
Systems, LP. The case is styled as Brooke Persinger, on behalf of
herself and all other similarly situated consumers, Plaintiff v.
Southwest Credit Systems, LP, Defendant, Case No.
1:19-cv-00853-RLY-MJD (S.D. Ind., February 27, 2019).
The docket of the case states the nature of suit as Consumer Credit
filed pursuant to the Fair Debt Collection Practices Act.
Southwest Credit Systems, L.P. was founded in 2003. The Company's
line of business includes collection and adjustment services on
claims and other insurance related issues.[BN]
The Plaintiff is represented by:
David M. Marco, Esq.
SMITHMARCO, P.C.
55 W. Monroe Street
Suite 1200
Chicago, IL 60603
Tel: (312) 546-6539
Fax: (888) 418-1277
Email: dmarco@smithmarco.com
- and –
Larry Paul Smith, Esq.
SMITHMARCO, P.C.
55 W. Monroe Street
Suite 1200
Chicago, IL 60603
Tel: (312) 324-3532
Fax: (888) 418-1277
Email: lsmith@smithmarco.com
TIDAL: Settles "Life of Pablo" Class Action for $84MM
-----------------------------------------------------
The Fashion Law reports that Kanye West, Jay Z's S. Carter
Enterprises, and Tidal have managed to settle the $84 million class
action lawsuit they have been facing for the past two and a half
years. As of Jan. 29, Justin Baker-Rhett, who filed suit against
the rappers and the subscription streaming service in April 2016,
citing fraud and violations of federal advertising laws, filed to
voluntarily dismiss the case, suggesting that the parties settled
their differences out of court.
Baker-Rhett filed suit in 2016 alleging that West and Tidal
"fraudulently induced consumers to subscribe to Tidal" under the
guise that West's "The Life of Pablo" album would exclusively be
available on that platform. According to Baker-Rhett's complaint,
West promised fans in a February 2016 tweet that his album would
only be available on Tidal, the service that rapper and music mogul
Jay Z acquired in 2015. As a result, "consumers were uniformly
tricked into handing over their private data and credit card
information by a singular mistruth."
"Contrary to Mr. West's representations," the complaint further
alleged, "the purportedly 'exclusive' access to The Life of Pablo
that Tidal subscribers were promised was short lived. A month and a
half after The Life of Pablo's initial release, Mr. West made the
album available through Tidal's biggest competitors, Apple Music
and Spotify. He also began selling the album through his own online
marketplace."
To make matters worse, Baker-Rhett argued that neither West nor
Tidal "ever intended for 'The Life of Pablo' to run exclusively on
the Tidal platform." Instead, he claimed that they made such a
warranty -- which amounted to "deceptive marketing" -- "knowing
that Tidal was in trouble but not wanting to invest their own money
to save the company" and thereby "fraudulently induced millions of
American consumers into paying for Tidal's rescue." And it worked,
the suit claimed that Tidal's subscriber base tripled from 1
million to 3 million in the 6 weeks following West's tweet.
While the parties appear to have come to a confidential agreement
to make the suit go away (and likely to prevent West and co. from
having to ultimately submit to depositions), Tidal is not
necessarily in the clear. Less than a year after news reports that
Tidal might be on the hook for fraud due to the "intentional
inflation of user play counts" on its platform, Norway's National
Authority for Investigation and Prosecution of Economic and
Environmental Crime confirmed an official investigation into the
subscription-based music streaming service.
Tidal first raised red flags in Norway, where its service is
headquartered, after revealing the play counts for Kanye West and
Beyonce's respective "The Life of Pablo" and Beyonce's "Lemonade"
albums. Kanye West's "The Life of Pablo" album "had been streamed
250 million times in its first 10 days of release in February of
2016," according to Tidal's metrics, whereas Beyonce's "Lemonade"
was streamed a whopping 306 million times in its first 15 days of
release in April of 2016.
The problem? The numbers for the two highly-anticipated albums,
both of which debuted exclusively on Tidal in 2016, did not
necessarily add up, according to law enforcement officials and
members of the media, as Tidal was said to have just 3 million
subscribers at the time. Upon closer inspection, Tidal was accused
of boosting the streams of the albums by Kanye and Beyonce -- who
are both "artist owners" of Tidal, according to the company's
website -- by "320 million false plays of songs . . . a
manipulation that affected more than 1.7 million users."
As Norweigan publication Dagens Naeringsliv stated last spring,
"User accounts and play counts obtained by [Dagens Naeringsliv]
revealed suspicious listening patterns, such as simultaneous
playbacks of multiple songs by the same user or repeated playbacks
of the same song at regular intervals."
Now, Norwegian authorities have begun a formal investigation into
such claims of manipulation. To date, "At least four former Tidal
employees (including its former head of business intelligence) have
been interrogated in front of a judge [for a total of 25 hours] as
part of the investigation." Tidal's counsel said in a statement
earlier in January that the company "is not a suspect at this time
nor has there been charges filed [against it]." [GN]
TINDER: Settles Age Discrimination Lawsuit
------------------------------------------
Dami Lee, writing for The Verge, reports that Tinder settled a
class action lawsuit for $17.3 million over charging users 30 and
older double the standard fee for one of its subscription services.
The premium tier, called Tinder Plus and introduced in 2015, gave
users perks like the ability to rewind swipes, more Super Likes,
and the option to swipe for people located in other countries.
Tinder was criticized when it service launched for its age tiers,
which charged a $9.99 monthly fee for users under 29 and $19.99 for
users 30 and up. At the time, Tinder defended the pricing model and
compared the tiers to Spotify's discounted rates for students in a
statement to NPR. A Tinder spokesperson commented, "During our
testing we've learned, not surprisingly, that younger users are
just as excited about Tinder Plus, but are more budget constrained
and need a lower price to pull the trigger."
The case was first filed in a California court last April, with
plaintiff Lisa Kim filing on behalf of an estimated 230,000 other
class members. Tinder first blocked the case by citing the
arbitration clause in its Terms of Service, and Kim appealed that
clause when the settlement was reached. The company will now have
to pay class members a combined $11.5 million in compensation. For
dropping the claims, class members will receive 50 Super Likes, and
an additional choice of a $25 check, 25 more Super Likes, or a free
Tinder Plus or Tinder Gold subscription.
Tinder also agreed it would stop the discriminatory price tiers for
its subscription services, but only in California. The company may
also offer discounts to users 21 years or younger. This latest
class action lawsuit is just one of many the company is currently
involved in. Tinder's co-founders are currently suing its parent
companies IAC and Match Group for $2 billion dollars for lowering
Tinder's valuation and taking away stock options, and contained in
that lawsuit are claims of rampant sexism and sexual harassment.
[GN]
TRANSWORLD SYSTEMS: Jean-Claude Alleges Violation under FDCPA
-------------------------------------------------------------
A class action lawsuit has been filed against Transworld Systems
Inc. The case is styled as Michelane Jean-Claude, individually, on
behalf of herself and all other similarly situated consumers,
Plaintiff v. Transworld Systems Inc and John Does 1-25, Defendants,
Case No. 1:19-cv-20781-XXXX (S.D. Fla., February 27, 2019).
The docket of the case states the nature of suit as Consumer Credit
filed pursuant to the Fair Debt Collection Practices Act.
Transworld Systems Inc. provides accounts receivable, debt
recovery, and past due accounts services for businesses, medical
companies, dental companies, education facilities, Fortune 500
companies, and small businesses in the United States and
internationally. It offers accelerator, profit recovery, messenger,
dental collection, demand/direct deposit account recovery plus,
outsourcing, medical collection, education collection, and
commercial/business-to-business collections services.[BN]
The Plaintiff is represented by:
Justin E. Zeig, Esq.
Zeig Law Firm, LLC
3595 Sheridan Street
Suite 103
Hollywood, FL 33021
Tel: (754) 217-3084
Email: justin@zeiglawfirm.com
TRAVELPORT WORLDWIDE: "Klein" Suit Alleges Exchange Act Violation
-----------------------------------------------------------------
Melvyn Klein, individually and on behalf of all others similarly
situated v. Travelport Worldwide Limited et al., Case No.
1:19-cv-01863 (S.D. N.Y., February 28, 2019), is brought against
the Defendants for violation of the Securities Exchange Act of
1934.
On December 9, 2018, Travelport, Toro III, and Toro Private
Holdings IV, Ltd., a direct wholly-owned Subsidiary of Parent
entered into an Agreement and Plan of Merger. On February 13, 2019
and in order to convince Travelport's public common stockholders to
vote in favor of the Proposed Transaction, Travelport filed a
materially incomplete and misleading Form DEFM14A Definitive Proxy
Statement with the SEC, in violation of Sections 14(a) and 20(a) of
the Exchange Act.
The Plaintiff Melvyn Klein is a Travelport stockholder.
The Defendant Travelport Worldwide Limited is a Bermuda corporation
with its principal executive offices located at Axis One, Axis
Park, Langley, Berkshire, SL3 8AG, United Kingdom. Travelport
describes itself as a technology company that makes the experience
of buying and managing travel continually better. It operates a
travel commerce platform providing distribution, technology,
payment, mobile and other solutions for the global travel and
tourism industry. Travelport common stock is traded under the
ticker symbol "TVPT."
The Individual Defendants are members of the Company's board of
directors. [BN]
The Plaintiff is represented by:
Thomas J. McKenna, Esq.
Gregory M. Egleston, Esq.
GAINEY McKENNA & EGLESTON
440 Park Avenue South
New York, NY 10016
Tel: (212) 983-1300
Fax: (212) 983-0380
E-mail: tjmckenna@gme-law.com
gegleston@gme-law.com
UNITED STATES: Court Denies Dismissal of Emami Suit
---------------------------------------------------
The United States District Court for the Northern District of
California issued an Order denying Defendant's Motion to Dismiss in
the case captioned FARANGIS EMAMI, et al., Plaintiffs, v. KIRSTJEN
NIELSEN, et al., Defendants. Case No. 18-cv-01587-JD. (N.D. Cal.).
The complaint arises out of Presidential Proclamation 9645,
Enhancing Vetting Capabilities and Processes for Detecting
Attempted Entry Into the United States by Terrorists or Other
Public Safety Threats, which President Trump. The President states
that he issued the Proclamation after ordering a worldwide review
of whether, and if so what, additional information would be needed
from each foreign country to assess adequately whether their
nationals seeking to enter the United States pose a security or
safety threat.
The Secretary of Homeland Security concluded from the review that a
small number of countries remain deficient with respect to their
identity management and information-sharing capabilities,
protocols, and practices. To advance the policy of the United
States to take all necessary and appropriate steps to encourage
foreign governments to improve their information-sharing and
identity-management protocols and practices, the President ordered
a sharp curtailment, and in some cases a complete suspension, of
entry into the United States by nationals of eight countries: Chad,
Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia.
JUSTICIABILITY AND THE SCOPE OF PLAINTIFFS' CLAIMS
The first question raised in the government's motion is whether
plaintiffs' claims are justiciable, or whether they should be
dismissed, as the government contends, under the doctrine of the
nonreviewability of consular decisions. This is one of the
government's main contentions for dismissal.
It is certainly true that certain immigration or exclusion
decisions are not reviewable in court.
Because the complaint is at points rather loosely worded, it might
seem on occasion that plaintiffs are straying into unreviewable
areas. But plaintiffs substantially clarified and narrowed the
scope of their claims in their opposition brief and during oral
argument.
In response to the government's contention, plaintiffs expressly
state that they do not challenge individual consular officer
decisions on the merits and do not challenge the outcome of any
particular consular officer's decision in a given case. That is
entirely consistent with a fair reading of the complaint, which
leaves no doubt that plaintiffs are challenging systemic practices
with respect to the waiver program, and not individualized
determinations for any specific person. The gravamen of the
complaint is that the government has flouted its own guidelines and
statements about case-by-case determinations of waiver applications
in favor of a policy of blanket denials. Those issues do not
require review of an individual consular officer's decision.
Consequently, dismissal for lack of a justiciable controversy is
denied.
APA CLAIM
The Administrative Procedure Act creates a basic presumption of
judicial review for one suffering legal wrong because of agency
action.
Plaintiffs' APA claim has solid legal support in the
well-established proposition that agencies may be required to abide
by certain internal policies This proposition was first recognized
in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260
(1954), which involved an immigration dispute with overtones
similar to this one. The plaintiff in Accardi was an Italian
immigrant who challenged the validity of a decision by the Board of
Immigration Appeals (BIA) that denied his deportation appeal.
The Supreme Court reversed and ordered a new appeal hearing because
the BIA had not acted in conformance with its governing
regulations. Those regulations required the BIA to exercise its own
judgment and discretion when considering appeals, but the record
indicated that the BIA had summarily denied Accardi's appeal
because he was on a list sent from the Attorney General of unsavory
characters slated for deportation. The Supreme Court concluded that
the BIA's decision was invalid because it had not, in fact,
exercised its discretion as required by the regulations, but had
instead allowed the Attorney General to dictate the result.
The Plaintiffs allege many instances where applicants whose visa
interviews took place before the Proclamation were denied a visa
and a waiver in summary fashion after the Proclamation was signed,
and with no further interview or opportunity to submit documents
and demonstrate eligibility for a waiver. The Plaintiffs have
identified other occasions on which consular officers refused to
consider or even accept documents offered to them, on one occasion
at the visa interview. These facts adequately allege that the State
Department has not followed its own guidance with respect to its
requirement that visa applicants must disclose at their visa
interviews any information that might demonstrate that the
applicant is eligible for a waiver.
The Plaintiffs allege other failures by the State Department to
adhere to its own rules. For example, the waiver guidance states
that individual consular officers will exercise discretion to grant
waivers on a case-by-case basis when they find the requirements for
a waiver to be satisfied. Contrary to this avowed process,
plaintiffs allege facts plausibly demonstrating that a de facto
policy of blanket denials has usurped individualized waiver
decisions. These facts include the declaration of a former consular
officer who states that we were not allowed to exercise that
discretion and that there really is no waiver and evidence showing
that the sample waiver letter had the denied box pre-checked and
contained no option for the grant of a waiver at all. And as
discussed, the complaint also offers the testimonials of applicants
who were summarily denied waivers and visas, in some cases with the
same form letter and in others without ever having had a
post-Proclamation visa interview or any other opportunity to make
his or her case for a waiver.
Consequently, the Court concludes that the plaintiffs have stated
an APA claim under the Accardi doctrine.
FIFTH AMENDMENT CLAIM
The Plaintiffs also allege claims under the Fifth Amendment to the
United States Constitution for substantive and procedural due
process deprivations, and an equal protection violation. The Fifth
Amendment provides that no person shall be deprived of life,
liberty, or property, without due process of law.
For the due process claim, the threshold question is whether a
plaintiff was deprived of any of these interests, because no
process is due if one is not deprived of `life, liberty, or
property.
This is also lacking. The Plaintiffs have not alleged any
constitutionally protected fundamental rights for either the Family
Member Class or the Visa Applicant Class. They refer to a right to
the integrity of the family unit, but even assuming such a right
can be found in the Fifth Amendment, which is not at all clear,
plaintiffs concede that it would not amount to a right of entry for
foreign nationals, nor to an unfettered right to reside in the
United States with family members who are foreign nationals.
Plaintiffs' inability to allege a deprivation of an interest
protected by the Due Process Clause means their claim must be
dismissed in both its procedural and substantive iterations. The
dismissal is without prejudice and plaintiffs may amend, if they so
choose.
The Plaintiffs' equal protection claim under the Fifth Amendment is
also dismissed. Although the Fifth Amendment does not contain an
express equal protection clause, its Due Process Clause has been
interpreted to include an equal protection component. Even so,
there are problems with plaintiffs' equal protection claim. Their
claim is that the waiver guidance that has issued has been
arbitrary and capricious and designed to result in almost-uniform
denials. Taken as true, and given the background against which the
waiver scheme arose, this supports an inference that the agency has
a policy of denying waivers on discriminatory grounds, including
nationality or religion.
The Court also notes, without firmly deciding the question at this
time, that the equal protection claim would likely be subject to
rational basis review. The Supreme Court has already concluded in
reviewing the Proclamation that "the Government has set forth a
sufficient national security justification to survive rational
basis review. This is another sizeable roadblock to the equal
protection claim as currently alleged. But plaintiffs will have an
opportunity to amend this claim too.
MANDAMUS CLAIM
The Plaintiffs' final claim, for a writ of mandamus, is also
dismissed without prejudice. The writ of mandamus is intended to
provide a remedy for a plaintiff only if he or she has exhausted
all other avenues of relief and only if the defendant owes him or
her a clear nondiscretionary duty.
The Plaintiffs themselves have acknowledged the duplicative nature
of their mandamus claim and that it may not be necessary. Because
the APA claim will go forward, the Court dismisses plaintiffs'
mandamus claim on the basis of plaintiffs' representations that the
mandamus claim is redundant. The dismissal is without prejudice to
renewing at a later time, should that become appropriate.
Plaintiffs' mandamus claim may also become relevant to a discussion
of the proper relief in this case.
On that note, the prayer for relief in the complaint asks the Court
to order the retraction of all visa denials and to order defendants
to fulfill their duties under the Proclamation. The former may
infringe impermissibly on individual consular officers'
decision-making, and the latter, as noted previously in this order,
sounds like an impermissible attempt to enforce the Proclamation.
These issues are not squarely before the Court at this time, but
plaintiffs may want to consider them if they amend the complaint.
Accordingly, the Defendants' motion to dismiss is denied for the
plaintiffs' APA claim.
A full-text copy of the District Court's February 4, 2019 Order is
available at https://tinyurl.com/y4a9sxnn from Leagle.com.
Farangis Emami, Behnaz Malekghaeini, Fathollah Tolou Beydokhti,
Maryam Mozafari, Hoda Mehrabi Mohammed Abadi, Mitra
Farnoodian-Tedrick, Afrooz Kharazmi, Tannaz Toloubeydokhti, Mahdi
Afshar Arjmand, Roghayeh Azizikoutenaei, Behnam Babalou, Ehsan
Heidaryan, Bamshad Azizi, Afshan Alamshah Zadeh, Bahram Charkhtab
Tabrizi, Soheil Vazehrad, Maral Charkhtab Tabrizi, Hojjatollah
Azizikoutenaei, Nastaran Hajiheydari, Zahra Rouzbehani,
Atefehossadat Motavaliabyazani, Najmeh Maharlouei, Farajollah
Farnoudian, Clyde Jean Tedrick, II, Mohammad Mehdi Mozaffary,
Mohamad Hamami, Najib Adi, Malik Almathil & Ali Altuhaif,
Plaintiffs, represented by Sirine Shebaya, Muslim Advocates, Joseph
E. Saei -- yusuf@muslimadvocates.org -- Muslim Advocates, Nimra
Azmi, Muslim Advocates, Veronica Sustic, Lotfi Legal LLC, Luis
Alberto Cortes Romero -- lcortes@ia-lc.com -- Immigrant Advocacy &
Litigation Center, PLLC & Shabnam Lotfi, Lotfi Legal LLC.
Khalil Ali Nagi, Ismail Alghazali, Hezam Alarqaban, Abdurraouf
Gseaa, Sudi Wardere, Khadija Aden & Aziz Altuhaif, Plaintiffs,
represented by Luis A. Romero, Lopez and Romero APC, Shabnam Lotfi,
Lotfi Legal LLC, Sirine Shebaya, Muslim Advocates, Veronica Sustic,
Lotfi Legal LLC, Joseph E. Saei, Muslim Advocates & Nimra Azmi,
Muslim Advocates.
Kirstjen Nielsen, in her official capacity as Secretary of Homeland
Security, US Department of State, US Department of Homeland
Security, Michael R. Pompeo, in his official capacity as Secretary
of State, Kevin K. McAleenan, in his official capacity as
Commissioner of U.S. Customs and Border Protection, U.S. Customs
and Border Protection, L. Francis Cissna, in his official capacity
as Director of U.S. Citizenship and Immigration Services & U.S.
Citizenship and Immigration Services, Defendants, represented by
August Flentje, U.S. Department of Justice Civil Division, P. Angel
Martinez, U.S. Department of Justice Civil Division & Stacey Ilene
Young, United States Department of Justice Civil Division, Office
of Immigration Litigation, District Court Section.
UNITED STATES: Judge Likely to OK Trump Immigration Class Action
----------------------------------------------------------------
Helen Christophi, writing for Courthouse News Service, reported
that a federal judge hinted on Jan. 24 he may advance a proposed
class action accusing the Trump administration of scheming to jail
and deport young Central American immigrants on "flimsy"
allegations of gang affiliation.
U.S. District Judge Vince Chhabria said he "didn't buy" the
administration's argument that the suit can't proceed as a class
action and must be dismissed following named plaintiff A.H.'s
release from custody under a November 2017 preliminary injunction,
which mandates that immigrant children who arrive alone in the
United States and are later arrested on allegations of gang
affiliation be given hearings before an immigration judge.
And he questioned whether classes can be certified on any of A.H.'s
four claims, in part because the circumstances of each class
member's arrest and detention are too unique to justify class
certification.
But Judge Chhabria appeared to change his mind by the end of the
three-hour hearing in San Francisco, suggesting their circumstances
may in fact be similar enough to warrant certification of A.H.'s
unlawful arrest and substantive due process claims.
"You do seem to be arguing in this case that that is effectively
what is happening to all these class members, because 'we have the
authority to arrest them on the basis of removability alone,'"
Judge Chhabria told U.S. Justice Department attorney Sarah Fabian
on Jan. 24.
Judge Chhabria was referring to the administration's contention
that it can rearrest unaccompanied immigrant children for violating
civil immigration laws any time it wants and as many times as it
wants, even after being deemed not dangerous and released into the
custody of a U.S.-based guardian.
"That is an issue that seems to have been properly teed up in this
litigation and is amenable to class treatment," Judge Chhabria told
her.
A.H. sued the Trump administration in June 2017, after Immigration
and Customs Enforcement officers arrested him outside his mother's
Long Island, New York home for alleged gang involvement.
According to the suit, he had been living with his mother in New
York since being released into her custody in May 2015 by the
Office of Refugee Resettlement (ORR). ORR is tasked with finding
suitable U.S.-based guardians for unaccompanied minors pending a
determination that the minor doesn't pose a threat to the
community. A.H., who fled an abusive father in Honduras, was deemed
benign and released, the suit says.
A.H. claims ICE gave ORR "incomplete or incorrect" information
regarding his 2017 arrest, including false accounts of two previous
arrests for threatening his classmate with knife and for marijuana
possession.
Although charges in both cases had been dropped, ICE allegedly told
ORR the charges were pending, and that the knife arrest had
occurred within the previous three weeks when it had actually
occurred a year earlier. ICE also supposedly told ORR that A.H. was
a "self-admitted gang member," an allegation A.H. denies.
According to the lawsuit, ORR didn't verify ICE's allegations
against A.H. Instead, it sent him to a high-security detention
facility 2,500 miles away in Yolo County in Northern California
without telling his mother. He was refused an immigration hearing
to rebut the allegations against him until Judge Chhabria ordered
him released about six months later.
A.H. says his arrest was part of a larger push by the Trump
administration to "arrest, detain, and transport children far from
their families and attorneys, and to deny them immigration benefits
and services to which they are entitled under U.S. law, based on
flimsy, unreliable and unsubstantiated allegations of gang
affiliation."
Based on this allegation, he in part sought to certify a class of
unaccompanied minors who were rearrested on a removability warrant
based on allegations of "changed circumstances," including
allegations of gang affiliation, and a court order blocking
rearrest "without reliable evidence of changed circumstances that
are sufficiently serious and exigent to justify arrest."
On Jan. 24, Ms. Fabian told Judge Chhabria that "it sounds like
[the class] would want notice of what changed circumstances there
are," which is "not Fourth Amendment relief."
The argument sparked a contentious dialogue with Judge Chhabria.
"For the unlawful arrest claim," Judge Chhabria replied, "you do
take the position, do you not, that even if there is no allegation
of any gang affiliation or any changed circumstances . . . . on the
basis of these removability warrants, 'We have the right for any
reason to arrest some minor who was released by ORR into the
custody of a sponsor?'"
"Yes," Ms. Fabian said.
"So your position is the federal government has the legal authority
to take the minor into custody, determine they're not dangerous,
release them to the sponsor, and the following week rearrest them
for no reason at all?" he asked.
"Yes," she said.
"So they could rearrest them for no reason at all, send them back
to ORR custody, ORR could again place them with a sponsor, and a
week later ICE could again use a removability warrant to rearrest
them?" Judge Chhabria asked. "And this is the third time ICE is
arresting them and twice ORR has determined the minor is not
dangerous and placed them with a sponsor . . . There's nothing
precluding ICE from doing that?"
"ICE would have that authority," Ms.Fabian said.
"And next week ICE arrests them a fourth time. There's no legal
impediment to doing that?" he asked her.
"Under the warrant authority, yes," she replied.
"So, on and on and on, it could happen," Judge Chhabria said. "ICE
could arrest them 1,000 times in a five-year period on removability
authority. There's nothing illegal about that?"
"No," Fabian said. "Nothing comes to mind."
"The Fourth Amendment doesn't come to mind?" Judge Chhabria said.
"I might dismiss this claim on mootness grounds," he said. "But if
I don't do that and I'm deciding the merits of the claim . . . if
your argument is, 'none of the circumstances of the individuals
matter at all because we have unfettered authority to arrest these
individuals whenever we want'" . . . the claim "is amenable to
class treatment."
Judge Chhabria likewise assailed Fabian's argument for dismissing
substantive due process claims over placement in high-security
detention facilities. Noting her admission that ORR's decision
regarding where to detain a minor isn't automatic, he suggested he
might advance the claim.
"If the secure placement is not automatic, and it requires ORR to
think about what it knows, how can you win on the motion to
dismiss?" he asked her. "It seems the only way you can win the
motion to dismiss on that claim is if [placement in a secure
facility] is automatically permitted."
But the claim's survival wasn't a certainty by the end of the Jan.
24 arguments. Judge Chhabria repeatedly raised concerns over
whether the claim would "collide" with the 1993 settlement
agreement in Reno v. Flores -- which in part mandates unaccompanied
minors be placed in the "least restrictive" facility possible --
and suggested class members instead seek transfer to lower-security
facilities under Flores.
Arguing on behalf of the class, ACLU Foundation attorney Stephen
Kang told Judge Chhabria that the class' substantive due process
claim "could potentially get addressed in the Flores case."
But, he said, "[w]e'd like the chance to convince you that the
claim can be brought class-wide" under A.H.'s suit.
Judge Chhabria took the motion under submission and did not
indicate when he will rule.
In a written ruling issued later on Jan. 24, Judge Chhabria ordered
the case remain stayed for the duration of the government
shutdown.
US DEALER: Greenberg Files Class Suit in D. New Jersey
------------------------------------------------------
A class action lawsuit has been filed against U.S. Dealer Services.
The case is styled as Yaakov Greenberg, individually and on behalf
of all others similarly situated, Plaintiff v. U.S. Dealer Services
doing business as: Palmer, Defendant, Case No.
3:19-cv-07109-MAS-LHG (D. N.J., February 27, 2019).
The docket of the case states the nature of suit as fraud filed
pursuant to the Telephone Consumer Protection Act of 1991.
U.S. Dealer Services doing business as: Palmer is engaged in
vehicle dealer services.[BN]
The Plaintiff is represented by:
Joseph Lipari, Esq.
The Sultzer Law Group, P.C.
77 Water Street, 8th Floor
New York, NY 10005
Tel: (646) 722-4266
Email: liparij@thesultzerlawgroup.com
VENTURE 475: Sued over Alleged Nuisance Telemarketing Practices
---------------------------------------------------------------
George Kenneth Schopp, the Plaintiff, vs. Venture 475, LLC, a New
York limited liability company D/B/A Synergy Capital 1, LLC, the
Defendant, Case No. 4:19-cv-00097 (E.D. Tex., Feb. 7, 2019), seeks
to enforce the consumer-privacy provisions of the Telephone
Consumer Protection Act, a federal statute enacted in 1991 in
response to widespread public outrage about the proliferation of
intrusive, nuisance telemarketing practices.
Venture 475 or its telemarketing representative or lead generator
called Plaintiff's residential phone on approximately 12 occasions
beginning on September 13, 2018, and made marketing solicitations,
i.e., calls for the purpose of encouraging the purchase or rental
of, or investment in, property, goods, or services. Because
Plaintiff had not given his consent to receive these calls from
Defendant, these calls violated the TCPA and the Do Not Call
Registry laws and regulations. Because the calls were transmitted
using technology capable of generating hundreds of thousands of
telemarketing calls per day, and because telemarketing campaigns
generally place calls to hundreds of thousands or even millions of
potential customers en masse, Plaintiff brings this action on
behalf of a proposed nationwide class of other persons who received
illegal telemarketing calls from or on behalf of Defendant.[BN]
Attorney for Plaintiff:
Chris R. Miltenberger, Esq.
THE LAW OFFICE OF CHRIS R. MILTENBERGER, PLLC
1360 N. White Chapel, Suite 200
Southlake, TX 76092
Telephone: 817-416-5060
Facsimile: 817-416-5062
E-mail: chris@crmlawpractice.com
VERIZON: Plaintiffs Dismiss "Zombie Cookies" Class Action
---------------------------------------------------------
Courthouse News Service reported that the plaintiffs behind a
putative class action accusing a tech company of creating "zombie
cookies" that track Verizon users' cellphone activities have
voluntarily dismissed their lawsuit, deciding not to file an
amended complaint.
WAITR HOLDINGS: "Halley" Suit Alleges FLSA Violation
----------------------------------------------------
Jualeia Halley and Heather Gongaware, individually and on behalf of
all others similarly situated v. Waitr Holdings, Inc. fka Landcadia
Holdings, Inc. and Waitr Incorporated, Case No. 2:19-cv-01800 (E.D.
La., February 27, 2019), seeks to recover unpaid minimum wage under
the Fair Labor Standards Act.
The Defendant failed to reimburse its delivery drivers for the
reasonable expenses of the business use of their personal vehicles
in performing deliveries for Waitr, such that Plaintiffs and the
Putative Class Members' unreimbursed expenses caused their wages to
fall below the federal minimum wage during some or all workweeks.
The Plaintiffs Halley worked for Waitr as a driver from
approximately April 2017 to July 2017.
The Plaintiff Gongaware has worked and continues to work for Waitr
as a driver since approximately October of 2016 and was
misclassified as an independent contractor.
The Defendant Waitr Incorporated and Landcadia Holdings, Inc.
merged on November 15, 2018. The surviving entity is now known as
Waitr Holdings, Inc. Waitr is a food delivery service that allows
its patrons to utilize a mobile or desktop app to order food and
have it delivered from participating restaurants. The Defendant
operates in Alabama, Arkansas, Florida, Georgia, Louisiana,
Mississippi, South Carolina, Tennessee, and Texas. [BN]
The Plaintiffs are represented by:
Philip Bohrer, Esq.
BOHRER BRADY, LLC
8712 Jefferson Highway, Suite B
Baton Rouge, LA 70809
Tel: (225) 925-5297
Fax: (225) 231-7000
E-mail: phil@bohrerbrady.com
WAL-MART: Court Grants FCRA Class Certification
------------------------------------------------
Thomas M. Cull, writing for The National Law Review, reports that
in recent months, we have seen a large uptick in FCRA class
actions. If you're a regular reader here at FCRALand, you may
recall the Stanford class action filed in October 2018, the PetCo
class settlement in November 2018, and the Delta Airlines proposed
settlement earlier this month. We can now add another to the list
and this one is, by far, the largest FCRA class action we've seen
in recent memory.
This month, Walmart suffered a big defeat when a federal district
court in California granted certification to a class that may have
as many as five million class members.
The Plaintiffs filed a class action, claiming that Walmart's
background checks failed to satisfy the notice requirements of the
Fair Credit Reporting Act (FCRA) and state law. The Plaintiffs
claim that, when they applied for jobs at Walmart, Walmart
performed a background check without proper and legal
authorization, and without providing the requisite disclosures.
Specifically, Walmart allegedly included extraneous information on
disclosure forms and procured consumer reports without informing
applicants of their rights.
The now-certified class is defined to include "current, former and
prospective applicants for employment in the United States" who
applied for a job where the background report was conducted in the
five years before the suit was filed. [GN]
[*] Luxembourg Minister Expects to Deliver Class Action Draft Bill
------------------------------------------------------------------
RTL reports that every year, the Luxembourg Consumer Association
(ULC) signs a collaborative convention with the government.
2019 marks a new step in this partnership as it is the first time
that the convention is signed with a ministry dedicated exclusively
to consumer protection.
On Wednesday, the ULC and Paulette Lenert, the Minister for
Consumer Protection signed this year's convention and discussed the
agenda.
Whilst nothing has changed in terms of the content of the
convention, the significance of a dedicated ministry is one that
the ULC has praised continuously. Ms. Lenert stressed that the two
partners are keen to continue working in continuity.
At the meeting to sign the convention, the ULC's representatives
and the minister spent ninety minutes discussing future points,
notably the introduction of class-action suits.
The president of the ULC later confirmed that Ms. Lenert expressed
her ambition of delivering a draft bill before the summer.
The parties also discussed the ULC's other concerns, such as food
safety and bank fees.
The ULC represents around 120,000 members and draws its funding
from membership fees and subsidies of €820,000 from the
ministry.
Currently, the Ministry of Consumer Protection only has one civil
servant, as the administrative organisation of the ministry is
still undergoing a transition phase.
Previously, consumer protection belonged to three ministries -- the
economy, agriculture, and health. These ministries are currently in
discussions concerning which civil servants should move to the new
ministry. Seven civil servants will come from the Ministry of the
Economy.
Ms. Lenert hopes to create a clear structure and is preparing an
organisation chart for this month. [GN]
[*] Securities Class Action Filings Hit Record Levels in 2018
-------------------------------------------------------------
Amanda Bronstad, writing for New York Law Journal, reports that
filings of securities class actions hit record levels in 2018, with
stronger cases on the docket and an increase in settlement values,
according to NERA Economic Consulting's annual report, released on
Jan. 29.
There were 441 new filings of securities class actions in 2018, a
slight increase from the year before, but the highest level since
the 2000 dot-com crash, according to NERA's "Recent Trends in
Securities Class Action Litigation: 2018 Full-Year Review."
Aggregate investor losses, defined by NERA as "the aggregate amount
that investors lost from buying the defendant's stock," totaled
$939 billion, nearly four times the average during the past five
years. That trend, the report concluded, could indicate a
"systematic shift toward larger filings."
"The primary takeaway is the size of new securities class actions,
specifically, the size of what I refer to as the 'standard' case --
the Rule 10b-5, section 11 and 12 cases. Those are much larger this
year," said Stefan Boettrich, co-author of the report and senior
consultant at NERA Consulting, based in White Plains, New York.
Part of that is due to massive shareholder cases against General
Electric Co., whose shares dropped 56 percent in 2018. But not all
can be attributed to GE. "Clearly, we're seeing a big jump in
investor loss size in individual cases," he said.
Many of the bigger cases made traditional securities allegations,
like accounting or missed earnings. The technology sector saw a 70
percent uptick from 2017 in filings involving allegations missed
earnings guidance.
The report also looked at settlements, whose values rose in 2018.
The number of settlements was small when compared to dismissals,
and the average deal value of $69 million, up from $25 million in
2017, was primarily due to the $3 billion agreement with Brazilian
energy company Petrobras. But the median value of settlements in
2018, when excluding settlements of more than $1 billion, was $13
million -- twice that of 2017.
"It very well be a consequence of stronger cases making their way
through the system," Mr. Boettrich said. He predicted large
settlements would continue in 2019 given that pending cases now
have a total investor loss of $1.4 trillion, or $1.1 trillion when
excluding the GE cases.
As in 2017, merger objections made up about half the filings,
spurred by the Delaware Court of Chancery's 2016 decision in In re
Trulia Stockholder Litigation. That could mean merger objection
filings have plateaued, Mr. Boettrich said.
The report also found that attorney fees were $790 million. That's
70 percent higher than in 2017 but, Boettrich noted, not that
substantial when compared against the total value of all
settlements last year, which was $5.3 billion.
Here are some more details of the 2018 report:
-- Regulatory filings, such as those involving price fixing or
emissions defeat devices, dropped 75 percent against foreign
companies. Filings against Chinese firms rose, but those against
European companies dropped.
-- Excluding filings over merger objections, 64 percent of the
new cases were in the U.S. Court of Appeals for the Second Circuit
and Ninth Circuit, home to several technology firms. Merger
objection filings were "increasingly active" in the Third Circuit,
which includes Delaware.
-- Settlements worth less than $10 million dropped from 61
percent in 2017 to 45 percent in 2018, with 44 percent of deals
falling between $10 million and $49.9 million. [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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