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C L A S S A C T I O N R E P O R T E R
Wednesday, April 3, 2019, Vol. 21, No. 67
Headlines
161-10 HILLSIDE AUTO: Stidhum Files FLSA Suit in E.D. New York
22ND CENTURY: Defends Several Class Actions, Derivative Suits
3M CO: Takes Steps to Remove Toxic Chemicals Amid Class Actions
ADT INC: Consolidated Shareholder Class Suit in Florida Ongoing
ADT INC: Settlement Proceedings in Wireless Encryption Suit Stayed
ADT INC: Villegas Suit Obtains Class Certification
ALASKA AIRLINES: To Appeal Judgment Over Flight Attendants' Pay
ALLEGHENY TECHONOLOGIES: Employee Sues Over Unpaid Wages
ALTA MESA: Fruitland Homeowners Worry Over Oil Wells Amid Suit
AMAZON.COM.DEDC: Court Denies Bid to Remand D. Vaccaro's Wage Suit
AMAZON.COM: Ronquillo Suit Transferred to W.D. Washington
AMERICAN RENAL: Rosen Law Firm Investigates Securities Claims
APPLE INC: Court Denies Bid to Dismiss G. Zaragoza's Suit
AXA EQUITABLE: O'Donnell Transferred to Connecticut Superior Court
AXA EQUITABLE: Unit Still Defends Brach Family Foundation Suit
BANK OF AMERICA: $11MM Settlement in McLeod Suit Has Final Approval
BEST BUY STORES: Brown-Hasaj Suit Alleges TCPA Violation
BETHLEHEM LANDFILL: Court Dismisses R. Baptiste's Suit
BLUEGREEN VACATIONS: Bid to Dismiss Landon Class Suit Pending
BLUEGREEN VACATIONS: Continues to Defend Potje Class Suit
BLUEGREEN VACATIONS: Faces Wijesinha Class Action
BLUEGREEN VACATIONS: Settlement Reached in Paxton Class Suit
BLUEGREEN VACATIONS: Siu Class Action Concluded
BOSTON MARKET: Reyes Sues Over Unpaid OT, Wages and Reimbursements
BRISTOW GROUP: Howard G. Smith Files Securities Class Action
CABLEVISION SYSTEMS: Jensen Moves to Certify Class of Subscribers
CAISSE DE DEPOT: Faces Class Action Over REM Service Disruptions
CAPTAIN GEORGE'S: Remove Labor Suit to District of South Carolina
CBS CORP: Kahn Swick Continues to Probe Officers & Directors
CEDAR RAPIDS, IA: Ends Traffic Camera Collection Effort
CENTURYLINK INC: Continues to Defend Houser Class Action
CENTURYLINK INC: Faces Max Suit Over Share Price Drop
CENTURYLINK INC: Final Judgment & Approval of Settlement Appealed
CERTIFIEDSAFETY INC: Fails to Pay Workers Proper Wages, Jones Says
CHIASMA INC: Settlement in Gerneth Suit Underway
CLAIMS RESOLUTION: Class Action Over Earthquake Payouts Okayed
COLE HAAN: Court Narrows Claims in Amended Park FTCA Suit
COMMONWEALTH HEALTH: OT Premium for Operations Supervisors Sought
CONDUENT INC: May 7 Lead Plaintiff Motion Deadline Set
CORBUS PHARMACEUTICAL: Hid Failed Trial Results, Kempf Suit Says
COVENTBRIDGE USA: Eggnatz's Bid to Certify FLSA Class Denied
CREATIVE SOLUTION: Faces Novel Remodelling Suit over Biz Practice
CSC SERVICEWORKS: Court Narrows Claims in RBB2 Suit
CURO GROUP: Pension Fund Named Lead Plaintiff in Securities Suit
CVS PHARMACY: Court Grants Summary Judgment Bid in Beardsall Suit
CVS PHARMACY: Wins Summary Judgment in Beardsall Consumer Suit
DANONE US: Marshall Seeks to Stop Cocomilk Product's Deceptive Ad
DEFENDERS INC: Kennedy Sues Over Unsolicited Text Messages
DENKA PERFORMANCE: Court Grants Bids to Dismiss Butler Suit
DENTSPLY SIRONA: Asks Court to Stay Boynton Beach Employees' Suit
DENTSPLY SIRONA: Bid to Dismiss Consolidated Suit in NY Pending
DENTSPLY SIRONA: Olivares Suit v. Futuredontics Ongoing
DEVRY UNIVERSITY: Judge Pulls Plug on Ex-Students' Class Action
DIXIE GROUP: Final Fairness Hearing in Garcia Set for April 12
DOS REALES: Olivera Suit Settlement Gets Final Court Approval
EL POLLO LOCO: Settlement Reached in Turocy Case, Court Stays Suit
EL POLLO: Deal Reached in Olvera, Perez, Vega & Gonzalez Suits
ESTENSON LOGISTICS: Parsons Files Suit in Cal. Super. Ct.
EXPEDIA INC: Class Certification Bid in Buckeye Suit Partly Granted
EXPEDIA INC: Ct. Narrows Claims in Buckeye Suit, Hearing on Apr. 23
FERRELLGAS PARTNERS: Still Defends Consolidated Class Suit in
Missouri
FIRST NATIONAL: Johns Wants Injunction Considered for Class Cert.
FRONTIER RAILROAD: Adams Suit Alleges FLSA Violation
GENERAL ELECTRIC: Mahar Class Action Dismissed
HG STAFFING: Court Dismisses Ramirez Suit Over Unpaid Overtime
HILLSBOROUGH COUNTY, FL: Boeji Suit Tossed; Must Amend in 30 Days
ICON HEALTH: Has Made Unsolicited Calls, Portillo Suit Claims
ING GROEP: Continues to Defend SIBOR - SOR Suit in New York
ING GROEP: Defends Mexican Government Bond Price Fixing Class Suit
ING GROEP: ING Spain Still Defends Mortgage Expenses Claims Suit
INSIGHT GLOBAL: Willie, et al. Seek Unpaid Wages for Recruiters
IOWA: Class of Schoolboys Certified in JSX Suit v. Human Serv. Dept
JPMORGAN CHASE: Updates on LIBOR and Benchmark Rate Litigation
KEYES COMPANY: Itayim Sues Over Unsolicited Text Messages
LACROIX: Sparkling Water False Advertising Class Action Ongoing
LEGACY HEALTH: Watson Sues over Biometric Practices
LINCOLN LIFE & ANNUITY: Bid to Certify Class in Hanks Partly Okayed
LUCKY WAH: Alcantara Suit Alleges FLSA and NYLL Violations
LYFT INC: 1st Cir. Affirms Arbitration Ruling in Y. Bekele's Suit
MANDARICH LAW: Zheng Files FDCPA Suit in E.D. New York
MANNKIND CORP: Still Defends Class Action in Tel Aviv
MARZUCCO SIGNATURE: LaRosa Sues Over Unsolicited Telemarketing
MASIMO CORP: PHI's Bid for Class Certification Due April 8
MASONITE INTERNATIONAL: Suits over Molded Door Prices Underway
MAXAR TECHNOLOGIES: Schwartzs Sue over Misleading Financial Report
MCCLATCHY CO: Third Phase Trial in Sawin Case to Begin May 20
MDL 2820: Monsanto Wins Bid to Dismiss Dicamba Herbicides Suit
MDL 2846: All Claims v. C.R. Bard/Davol Moved to Transferor Court
MERIDIAN BIOSCIENCE: Securities Class Action Dismissed
MIDLAND CREDIT: Can Compel Arbitration in S. Brecher's FDCA Suit
MORGAN STANLEY: Alaska Electrical Pension Fund's Suit Concluded
MORGAN STANLEY: Continues to Defend Iowa PERS Suit
NAVISTAR INTERNATIONAL: MaxxForce Engine Suits in Canada Ongoing
NAVISTAR INTERNATIONAL: U.S. EGR Warranty-Related Suits Ongoing
NCAA: Compensation Rules Must Be Slightly Expanded
NCAA: Drake Seeks Damages Over Injuries Suffered as Student-Athlete
NEKTAR THERAPEUTICS: Levi & Korsinsky to Lead in Mulquin
NESTLE: Proskauer Rose Attorneys Discuss Class Action Dismissal
NFG SAN FRANCISCO: Broughton Sues Over Unpaid Compensation
PACKAGING CORPORATION: Removes Vasquez Case to C.D. California
PAPA JOHN'S: Continues to Defend Danker Class Suit
PAT'S SELECT: Bids to Dismiss Casorio-Sahin FLSA Suit Denied
RISA TRAVEL: Guerra Sues over Unwanted Marketing Text Messages
SEALED AIR: Removes Labor Suit to Eastern District of California
STATEWIDE CREDIT: Santiago Files FDCPA Suit in E.D. New York
SUNRISE SENIOR: Removes Employment Discrimination Suit to C.D. Cal.
TECHNIPFMC PLC: Continues to Defend Prause Class Suit in Texas
TOUCHTUNES MUSIC: 2d Cir. Affirms Attys' Fees/Costs Awards in Cline
U.S. SOCCER: Women's Team Members File Gender Bias Class Action
UNIT CORP: Cockerell Oil Properties Class Suit Ongoing
UNITED STATES: Suit Over Migrant Families' Separation Expanded
UPLAND SOFTWARE: BakerHostetler Attorneys Discuss Court Ruling
VISIONSTREAM: Shine Lawyers Attorney Expects to File Class Action
VOLKSWAGEN AG: Manlove Moves for Class Certification Under FLSA
VOLKSWAGEN GROUP: Diesel Scandal May Pave Way for Class Actions
WELLS FARGO: Rule 23 Class Certification Sought in CS Wang Suit
WEST MORGAN-EAST: Court Dismisses Amended W. King Suit
WORD & BROWN: Marin Suit Alleges Labor Code Violations
ZION OIL: Continues to Defend Putative Class Action in Texas
[*] Democratic Lawmakers' New Bill Aims to Help Defend Consumers
[*] Democratic Senators to Introduce Bill to Narrow FAA
*********
161-10 HILLSIDE AUTO: Stidhum Files FLSA Suit in E.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against 161-10 Hillside Auto
Ave, LLC. The case is styled as Leticia Stidhum, David Manrique on
their own behalf and on behalf of others similarly situated,
Plaintiff v. 161-10 Hillside Auto Ave, LLC doing business as:
Hillside Auto Outlet, Hillside Auto Mall Inc doing business as:
Hillside Auto Mall, Ishaque Thanwalla, Ronald M Baron, Defendants,
Case No. 1:19-cv-01625 (E.D. N.Y., Mar. 21, 2019).
The Plaintiff filed the case under the Fair Labor Standards Act.
Hillside Auto Outlet offers a vast collection of used cars and
straightforward financing options.[BN]
The Plaintiffs appear pro se.
22ND CENTURY: Defends Several Class Actions, Derivative Suits
-------------------------------------------------------------
Journal Now reports that 22nd Century Group Inc. reported a $7.94
million loss for fiscal 2018, primarily caused by higher
operational costs.
By comparison, 22nd Century had a $13 million loss in fiscal 2017.
The report was made public after the stock market closed on March
6. The share price was down as much as 5.7 percent to $1.75 in
early trading on March 7.
The fiscal 2018 loss was lowered in large part because it had a
$14.5 million investment gain related to its stake in Anandia
Laboratories Inc., which was sold during 2018 to Aurora Cannabis.
22nd Century, based in Clarence, N.Y., operates a tobacco
manufacturing plant in Mocksville, where it has 70 of the company's
82 employees at last count.
When it comes to core operations, 22nd Century again had a sharp
increase in research and development costs that more than offset
revenue.
Revenue jumped 59.2 percent to a record $26.4 million.
The cost of goods sold was up 47.5 percent to $25.5 million, while
research and development expenses nearly doubled to $24.9 million,
of which $3.19 million was equity-based compensation for
executives.
22nd Century said it had $9.8 million in expenses related to filing
its modified-risk tobacco product application to the Food and Drug
Administration for its Brand A very-low-nicotine traditional
cigarette. The FDA has accepted the application and the review is
in the second of the four-stage process.
There was a diluted earnings loss of 6 cents, down from a loss of
13 cents a year ago. There is no analyst forecast for 22nd Century
from Zacks Investment Research.
22nd Century is best known for making very-low-nicotine cigarettes,
its Spectrum-branded line, that are sold to government agencies for
use in public-health studies.
The company could play a pivotal role in the Food and Drug
Administration's quest to drastically cut nicotine levels in
traditional cigarettes.
Approval of the very-low nicotine cigarettes could lead to a sharp
increase in revenue and a potential buyout by a global tobacco
manufacturer.
The FDA released in July 2017 its very-low-nicotine
recommendations, which must gain approval from other federal
agencies before being implemented.
The company's theory behind producing very-low-nicotine cigarettes
is that by making them less addictive, smokers would consume fewer
cigarettes.
Some anti-smoking advocates express concern that the
very-low-nicotine traditional cigarettes will lead some smokers to
use more cigarettes, thus potentially raising their exposure to
carcinogens from the burning of tobacco leaves.
The company disclosed it is facing at least five class-action or
shareholder derivative lawsuits related to shareholder claims that
annual reports for 2015 through 2017 "contained false statements in
violation of (SEC) regulations." The lawsuits were spurred in part
by a media report in late 2018.
The common denominator in the lawsuits is that 22nd Century "made
false and/or misleading statements and/or failed to disclose: that
its stock was prone to manipulation through paid stock promotions;
that such conduct would subject 22nd Century to heightened
regulatory scrutiny by the SEC; and 22nd Century's public
statements were materially false and misleading and/or lacked a
reasonable basis at all relevant times."
"When the true details entered the market, the lawsuit claims,
investors suffered damages."
Several executives, including chief executive Henry Sicignano III
and chief financial officer John Brodfuehrer, are included as
individual defendants.
A shareholder separately filed a letter to the board of directors
demanding that it take action "to remedy alleged breaches of
fiduciary duties by the board, Sicignano and Brodfuehrer.
The company said it has not been served some of the lawsuits, so it
has not filed a response to those complaints.
"We believe that the claims are frivolous, meritless and the
company and (executives) have substantial legal and factual
defenses to the claims," the company said. [GN]
3M CO: Takes Steps to Remove Toxic Chemicals Amid Class Actions
---------------------------------------------------------------
Eric Fleischauer, writing for Times Daily, reports that extensive
ongoing efforts by 3M Co. to deal with chemicals once disposed of
in Decatur and Lawrence County included the erection of a privacy
fence around property it purchased recently that is contaminated by
its own chemical waste.
Lawrence County resident Beth McCarley said hiding the remediation
efforts west of Trinity behind a fence is not reassuring to a
community frightened of the invisible and indestructible "forever
chemicals" once manufactured at 3M's Decatur plant and dumped in
Decatur and Lawrence County.
The chemicals briefly triggered the West Morgan-East Lawrence Water
Authority in 2016 to advise its customers not to drink its water.
"I am not confident at all with 3M. They have proved themselves not
to be for the people, just for the almighty dollar," said Ms.
McCarley, who has become an informal grassroots coordinator of
people in the county concerned about their exposure to the
chemicals. "They shouldn't be putting up fences. They should be
telling us exactly how they're going to solve this mess. We won't
know what they're doing behind that fence."
The fence is one step in a wide-ranging cleanup effort that led 3M
in 2008 to discontinue the manufacture and use of the chemicals,
that last year led it to purchase two contaminated local
properties, that in February led seven company representatives to
meet with state officials, and that includes an ongoing effort to
blanket hundreds of acres of contaminated fields at its Decatur
facility with liners.
Waste from 3M's manufacturing process for decades contained per-
and polyfluoroalkyl substances, known collectively as PFAS. Two
PFAS chemicals used by 3M until 2008 for products including
Scotchgard are PFOA and PFOS. They have received special scrutiny
from scientists, health professionals and environmentalists in
recent years.
Asked for details about the scope of its efforts to remove the
chemicals from Lawrence and Morgan counties, 3M declined, providing
a short statement instead.
"3M works with federal, state and local authorities regarding
environmental aspects of our operation in Decatur," according to
the statement issued to The Decatur Daily. "The level of PFOA and
PFOS in the Tennessee River has decreased, and it will continue to
decrease because of steps that 3M and others have taken and will
continue to take in the future."
The presence of PFOA and PFOS in the river has raised concerns for
many, and has resulted in numerous lawsuits against 3M by hundreds
of plaintiffs.
West Morgan-East Lawrence Water Authority (WMEL) draws its raw
drinking water from the river 13 miles downstream of 3M's Decatur
plant, which for decades used and disposed of the chemicals. In
2016, after the U.S. Environmental Protection Agency issued a
nonbinding health advisory for the two chemicals, the authority
built a $4 million carbon filtration plant. Conventional water
treatment plants do not remove the chemicals.
Most of the lawsuits focus on studies finding ingestion of the
chemicals is linked to kidney and testicular cancer,
pregnancy-induced hypertension, liver damage, increases in
cholesterol, thyroid disease, decreased response to vaccines,
asthma, decreased fertility and decreased birth weight.
Ms. McCarley said many customers of WMEL blame the 3M chemicals for
health conditions, and many now drink only bottled water. Dozens
have alleged in lawsuits they contracted specific diseases from the
water, and class action lawsuits assert claims on behalf of the
53,000 people who obtain their water from WMEL.
High levels of PFOS in fish tissue have resulted in the Alabama
Department of Public Health issuing consumption advisories for much
of Wheeler Reservoir. The state does not test fish for PFOA.
While 3M declined to provide details, some of its efforts to remove
PFOA and PFOS and to reduce the migration of the chemicals into the
river are apparent.
Massive cleanup effort
A massive effort to prevent PFOA and PFOS from entering the river
and groundwater from its Decatur facility is visible from State
Docks Road, which runs along the east side of the plant. Acres of
sheeting have been placed over 3M-owned fields.
"Pursuant to a permit issued by the (Alabama Department of
Environmental Management), for approximately 20 years, the company
incorporated its wastewater treatment plant sludge containing PFAS
in fields at its Decatur facility," 3M said in February in its
annual report to shareholders.
While 3M would not provide details of its work at the Decatur site
to The Daily, documents the company has filed with ADEM — and
which were obtained by The Daily — suggest that work is
extensive.
In February, seven 3M officials made a presentation to 13 ADEM
employees and one official with the Alabama Department of Public
Health summarizing its ongoing remediation efforts targeting PFOA
and PFOS on the Decatur site and at three off-site locations. The
remediation efforts are pursuant to a 2008 "remedial action
agreement" between ADEM and 3M to reduce the discharge of the water
pollutants.
3M last year completed the installation of flexible membrane liners
over 287 acres where the company had previously placed contaminated
sludge. The purpose of the liners is to prevent rain from leaching
the chemicals into the groundwater and then into the river.
All but 27 acres of the liners have been topped by soil and
vegetation, and 3M told ADEM it would cover the remaining acreage
along State Docks Road this year.
The work also included excavation to prevent surface water from
leaving the 287-acre sludge area, including the removal of 5,000
cubic yards of soil to create slopes on the perimeter of the
property.
Remediation efforts at the 3M plant also include the monitoring of
PFOA and PFOS levels in groundwater. The company samples 48
monitoring wells annually.
3M also has 10 groundwater recovery wells on its property. Once
groundwater is extracted, 3M uses a granular activated carbon
system -- the same technology used by WMEL for drinking water -- to
filter out PFOA and PFOS. This year, 3M told ADEM, it would expand
its groundwater treatment system to include more wells.
In 2018, the company also tested surface water from 11 locations
along State Docks Road.
Lawrence County dumps
3M also is seeking to reduce PFOA and PFOS levels in three off-site
dumps in Lawrence County that in the past received 3M waste, it
told ADEM. As part of its remediation efforts, 3M purchased the
properties from the landowners.
One property, on Lawrence County 358 west of Trinity, was the
subject of a since-settled lawsuit against 3M. In the complaint
filed in January 2018, John Sharp Jr. and Tammie Sharp alleged they
discovered the dump in 2017 -- 11 years after purchasing the
20-acre property 00 when the Tennessee Valley Authority cleared
timber before installing high-voltage lines.
"Based on the markings of containers found in the illegal dump on
the Sharp property and other constituents in the waste materials
found in the illegal dump, 3M was the generator of, and either
disposed of or arranged for the disposal of, wastes containing PFOA
and PFOS on the Sharp property," according to the complaint.
3M bought the property in August, according to its report to ADEM,
and may purchase another 100 acres north of the property this
year.
The company said the Sharp property contains a permitted landfill
that received waste from 3M and other Decatur industries. The
landfill was closed in 1981 after a nearby private well was found
to have high metal concentrations. ADEM and the EPA supervised
initial cleanup of the site, which was focused on metals and
volatile compounds, from 1982 to 1995.
3M advised ADEM its initial remediation steps this year, now
focused on PFOA and PFOS, will include demolishing the house,
clearing trees and installing a gate and fence.
Another dump site is on Lawrence County 222, also west of Trinity.
3M purchased this 11-acre property in August; it has evaluated the
flow of surface water from the site and has covered exposed waste
with plastic sheeting. The company was clearing trees and erecting
the privacy fence that concerned
Ms. McCarley.
"We are working with ADEM to develop investigation and sampling
plans, so we can understand what is in both sites," 3M spokeswoman
Fanna Haile-Selassie said on March 8. "Aside from removing some
trees to gain access to the site and construct fencing around the
work zone, we do not intend to disturb the waste material until the
sampling and initial investigation has been completed."
A third dump site 3M is preparing for remediation is off Browns
Ferry Road in Lawrence County, near Mallard Fox Creek.
Push for state action
Is 3M doing enough to clean up the contaminants? Some say it's not,
and are asking the state Attorney General's Office to take legal
action forcing it to do more.
The West Morgan-East Lawrence Water Authority filed its own lawsuit
against 3M in 2015, but it has since pushed for the attorney
general to file suit. Referencing a lawsuit involving PFOA and PFOS
filed by the state of Minnesota against 3M -- a lawsuit that
settled last year for $850 million -- the general manager of WMEL
began the push for state action in October.
"If the elected officials in 3M's home state of Minnesota were
willing to stand up against their state's largest company, isn't it
time that Alabama's elected officials take action to clean up our
state's largest river and to protect the Alabamians who rely on the
river for their drinking water supply?" wrote Don Sims in a letter
to Attorney General Steve Marshall and Gov. Kay Ivey.
"Please do not continue to stand on the sidelines while corporate
polluters like 3M get away with endangering the health and
well-being of our citizens," Sims continued.
In the letter, Mr. Sims said the authority's lawyers met with
former Attorney General Luther Strange in July 2016 and requested
that he intervene in WMEL's lawsuit against 3M.
Asked if it is recommending that the state attorney general take
action against 3M in connection with its disposal of PFOA and PFOS,
ADEM said it "continues to communicate with the Attorney General's
Office regarding this matter."
Attorney General Steve Marshall's office also confirmed discussions
involving 3M.
"The Attorney General's Office has been in communication with both
the Alabama Department of Environmental Management and officials
with the West Morgan-East Lawrence Water Authority concerning the
water quality issue," said Communications Director Mike Lewis. "We
are also following regulatory developments at the Environmental
Protection Agency. We are unable to comment on any possible
litigation."
Tennessee Riverkeeper, a nonprofit focused on cleaning the
Tennessee River, has filed one of the many lawsuits against 3M. Its
lawsuit seeks to force 3M to clean up the river and to take more
aggressive steps to prevent ongoing contamination of the river from
previously dumped chemicals.
David Whiteside, its director, said he has no confidence that
either 3M or the attorney general will take the needed action.
"We're concerned that these chemicals are still present in our
community, that they're in the Wheeler Reservoir, and that they're
in our fish," he said. "There are a lot of people in north Alabama
who are eating fish from the Wheeler Reservoir."
Me. Whiteside recounted his effort to speak with a Spanish speaker
fishing at the reservoir. In broken Spanish, Whiteside tried to
explain the risks. Nearby English-speaking fishermen knew from
media accounts not to eat the fish they caught, but were giving
their fish to the Spanish speaker.
"I believe they were doing it to try to help the guy out, but in
effect they're slowly poisoning him and his family," Whiteside
said.
"3M has to clean up its mess, including the Wheeler Reservoir, to
make the fish, and obviously the drinking water, safe again. 3M has
a lot of work to do to clean up this mess that they made." [GN]
ADT INC: Consolidated Shareholder Class Suit in Florida Ongoing
---------------------------------------------------------------
ADT Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 11, 2019, for the
fiscal year ended December 31, 2018, that the company continues to
defend itself from a class action suit entitled, In re ADT Inc.
Shareholder Litigation
Five substantially similar shareholder class action lawsuits
related to the January 2018 initial public offering (IPO) of ADT
Inc. common stock were filed in the Circuit Court of the Fifteenth
Judicial Circuit in and for Palm Beach County, Florida in March,
April, and May 2018 and have been consolidated for discovery and
trial and entitled In re ADT Inc. Shareholder Litigation.
The Lead Plaintiffs seek to represent a class of similarly situated
shareholders and assert claims for alleged violations of the
Securities Act of 1933, as amended ("Securities Act"). Plaintiffs
allege that the Company defendants violated the Securities Act
because the registration statement and prospectus used to
effectuate the IPO were false and misleading in that they allegedly
misled investors with respect to litigation involving the Company,
the Company's efforts to protect its intellectual property, and the
competitive pressures faced by the Company.
Defendants moved to dismiss the consolidated complaint and briefing
on the motion is in progress.
A similar shareholder class action lawsuit entitled Perdomo v ADT
Inc., also related to the January 2018 IPO was filed in the U.S.
District Court for the Southern District of Florida in May 2018,
for which the Plaintiff filed an Amended Complaint on January 15,
2019 as directed by the Court.
In September and October 2018, four substantially similar
shareholder derivative complaints entitled Velasco v. Whall; Myung
v. Whall; Scheel v. Whall; and Bradel v. Whall, were also filed
against various Company officers, directors and controlling
shareholders in the U.S. District Court for the Southern District
of Florida.
Plaintiffs allege breaches of fiduciary duties as directors,
officers, and/or controlling shareholders of the Company, unjust
enrichment, and violations of the federal securities laws for
alleged misrepresentations regarding competitive pressures in the
marketplace, litigation involving Company intellectual property,
and certain financial and operational metrics.
Following a Scheduling Conference held on November 16, 2018,
Plaintiffs in the four derivative cases voluntarily dismissed their
respective complaints without prejudice.
ADT Inc. provides security and automation solutions for homes and
businesses in the United States and Canada. It provides a range of
fire detection, fire suppression, video surveillance, and access
control systems to residential, commercial, and multi-site
customers. The company was formerly known as Prime Security
Services Parent, Inc. and changed its name to ADT Inc. in September
2017. ADT Inc. was founded in 1874 and is headquartered in Boca
Raton, Florida.
ADT INC: Settlement Proceedings in Wireless Encryption Suit Stayed
------------------------------------------------------------------
ADT Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 11, 2019, for the
fiscal year ended December 31, 2018, that final approval of the
settlement in the Wireless Encryption Litigation remains pending
after the Court issued a stay order.
The Company is subject to five class action claims regarding
wireless encryption in certain ADT security systems.
Jurisdictionally, three of the five cases are in Federal Court (in
districts within Illinois, Arizona, and California), and both of
the remaining two cases are in Florida State Court (both in Palm
Beach County Circuit Court).
Each of the five plaintiffs brought a claim under the respective
state's consumer fraud statute alleging that The ADT Corporation
and each of its consolidated subsidiaries prior to the consummation
of the ADT Acquisition made misrepresentations and material
omissions in its advertising regarding the unencrypted wireless
signal pathways in certain security systems monitored by The ADT
Corporation.
The complaints in all five cases further allege that certain
security systems monitored by The ADT Corporation are not secure
because the wireless signal pathways are unencrypted and can be
easily hacked.
On January 10, 2017, the parties agreed to settle all five class
action lawsuits. On October 16, 2017, the U.S. District Court for
the Northern District of California entered an order granting
preliminary approval of the settlement. Notice to class members was
issued November 16, 2017, and the settlement is currently in the
administration process. A fairness hearing regarding the settlement
was conducted on February 1, 2018.
The Court took the matter under advisement and subsequently stayed
the settlement proceedings pending an appellate ruling on a related
legal issue. The deadline for filing claims expired on February 26,
2018. Final approval of the settlement remains pending as a result
of the stay. The settlement administrator will not pay any claims
until the Court enters an order granting final approval of the
settlement.
No further updates were provided in the Company's SEC report.
ADT Inc. provides security and automation solutions for homes and
businesses in the United States and Canada. It provides a range of
fire detection, fire suppression, video surveillance, and access
control systems to residential, commercial, and multi-site
customers. The company was formerly known as Prime Security
Services Parent, Inc. and changed its name to ADT Inc. in September
2017. ADT Inc. was founded in 1874 and is headquartered in Boca
Raton, Florida.
ADT INC: Villegas Suit Obtains Class Certification
--------------------------------------------------
ADT Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 11, 2019, for the
fiscal year ended December 31, 2018, that the trial court granted
the plaintiff's motion for class certification and certified four
subclasses of customers in the class action suit entitled, Villegas
v. ADT.
In June 2013, the Company was served with a class action complaint
in California State Court entitled Villegas v. ADT. In this
complaint, the plaintiff asserted that the Company violated certain
provisions of the California Alarm Act and the Los Angeles
Municipal Alarm Ordinance for its alleged failures to obtain alarm
permits for its Los Angeles customers and disclose the alarm permit
fee in its customer contracts.
The plaintiff seeks to recover damages for putative class members
who were required to pay enhanced false alarm fines as a result of
not having a valid alarm permit.
The case was initially dismissed by the trial court and judgment
was entered in the Company's favor in October 2014, which the
plaintiff appealed.
In September 2016, the California Appellate Court reversed and
remanded the case back to the trial court. In November 2018, the
trial court granted the plaintiff's motion for class certification
and certified four subclasses of customers who received fines from
the City of Los Angeles on or after May 31, 2010 for a false alarm
and for not having an alarm system permit: a pre-March 2009 class
of customers installed by the Company; a pre-March 2009 class of
customers installed by ADT Authorized Dealers; a post-March 2009
class of customers installed by the Company; and a post-March 2009
class of customers installed by ADT Authorized Dealers.
ADT Inc. provides security and automation solutions for homes and
businesses in the United States and Canada. It provides a range of
fire detection, fire suppression, video surveillance, and access
control systems to residential, commercial, and multi-site
customers. The company was formerly known as Prime Security
Services Parent, Inc. and changed its name to ADT Inc. in September
2017. ADT Inc. was founded in 1874 and is headquartered in Boca
Raton, Florida.
ALASKA AIRLINES: To Appeal Judgment Over Flight Attendants' Pay
---------------------------------------------------------------
Dominic Gates, writing for Seattle Times, reports that Alaska
Airlines has been ordered to pay $78 million in a class-action
lawsuit on behalf of approximately 1,800 flight attendants who
worked for Virgin America and sued that airline before it was
acquired by Alaska in December 2016.
The lawsuit alleges that Virgin violated multiple California and
City of San Francisco labor and wage laws. A federal judge in
California entered final judgment this month, Alaska disclosed on
Feb. 15 in its year-end filing with the Securities and Exchange
Commission.
Alaska said on Feb. 15 it plans to appeal the ruling, challenging
the application of local labor laws in the airline industry, where
labor relations are typically governed by the federal Railway Labor
Act.
The suit was filed in 2015 by three flight attendants, and was
certified as a class action just a month before Alaska completed
its acquisition.
It alleges that Virgin failed to pay its flight attendants overtime
and minimum wages, and did not pay them for hours worked before,
after, and between flights, and for time spent in training, on
reserve, completing reports or taking mandatory drug tests. In
addition, it alleges that Virgin did not allow flight attendants to
take meal or rest breaks.
Alaska issued a statement on Feb. 15 saying that as an air carrier
it is bound by federal aviation regulations.
"These rules are prescribed by the FAA and supersede/preempt state
law," the statement said. "We are disappointed in the judgment in
this case and plan to appeal the rulings."[GN]
ALLEGHENY TECHONOLOGIES: Employee Sues Over Unpaid Wages
--------------------------------------------------------
Noddy A. Fernandez, writing for The Pennsylvania Record, reports
that an employee has filed a class action lawsuit against Allegheny
Techonologies Inc., citing alleged unjust enrichment and unpaid
wages.
Ralph Smith, individually and on behalf of all those similarly
situated, filed a complaint on Feb. 6, in the Allegheny County
Court of Common Pleas against Allegheny Techonologies Inc. and
Strom Engineering, alleging violation of the Pennsylvania law
through their policies or practices of not paying their non-exempt
workforce for all hours worked and not providing overtime
compensation.
According to the complaint, between August 2015 and March 2016,
Smith and the class members were employed by defendants to replace
one or more individuals in ATI's union workforce throughout the
pendency of the lockout.
Plaintiff claims he was assigned to be a van driver to take the
replacement workers to and from the ATI facility until he was
switched to a different shift, for which there was already an
assigned van driver. Plaintiff claims all of this work, including
the time driving or travelling in a company van, and the attendant
associated time spent waiting and crossing picket lines to get into
the facility was unpaid.
The plaintiff holds Allegheny Techonologies Inc. and Strom
Engineering responsible because the defendants allegedly failed to
compensate plaintiff and the class members at a rate of 1.5 times
their regular wage for hours worked in excess of 40 hours per
week.
The plaintiff requests a trial by jury and seeks judgment for back
pay damages, liquidated damages, litigation costs, and such other
and further relief as the court deems just and proper. He is
represented by Joseph Chivers, Esq. of The Employment Rights Group
in Pittsburgh.
The Allegheny County Court of Common Pleas Case No. is
GD-19-001929. [GN]
ALTA MESA: Fruitland Homeowners Worry Over Oil Wells Amid Suit
--------------------------------------------------------------
Steve Dent, writing for KIVI, reports that homeowners in Fruitland
are worried about the future value of their homes. This concern
comes from oil wells drilled by Alta Mesa a few years ago.
Julie Fugate and her husband live near one of the wells, and right
now they don't know what the future ramifications will be.
Ms. Fugate says neighbors have had a hard time selling their homes,
and she is worried about health problems and other environmental
issues moving forward.
"It is scary. I would like to sell now and move, but my husband
refuses to do that. So that is why I'm here and that is why I'm
taking this stance. I'm doing it for my grandchildren and your
grandchildren, and it is really scary what is going to come," said
Ms. Fugate.
On February 20th, Alta Mesa withdrew from conducting business in
the state of Idaho. The company is facing another class action
lawsuit, although none of those have been in Idaho, and according
to market reports, the Texas based company's stock has fallen by 97
percent. [GN]
AMAZON.COM.DEDC: Court Denies Bid to Remand D. Vaccaro's Wage Suit
------------------------------------------------------------------
In the case, DIANE VACCARO, on behalf of herself and those
similarly situated, Plaintiffs, v. AMAZON.COM.DEDC, LLC, Defendant,
Civil Action No. 18-11852 (FLW) (D. N.J.), Judge Freda F. Wolfson
of the U.S. District Court for the District of New Jersey (i)
denied the Plaintiff's motion for remand, and (ii) administratively
terminated the Defendant's motion for judgment on the pleadings.
Under the Fair Labor Standards Act ("FLSA"), the U.S. Supreme Court
in Integrity Staffing Solutions, Inc. v. Busk, held that Amazon
warehouse employees' time spent waiting to undergo post-shift
security screenings is not compensable as overtime wages. In the
putative class action, Plaintiff Vaccaro sued Amazon.com.dedc, LLC,
alleging that Amazon's refusal to pay wages for employees' time
spent waiting to be screened at a security check point, after their
work shift concluded, violates New Jersey Wage and Hour Law
("NJWHL"). Because Integrity Staffing only dealt with Federal law,
the Plaintiff argues that the plain statutory language of the
NJWHL, together with state cases interpreting the statute, compel a
different result. The substantive issue presented in the matter
turns on whether the NJWHL should be interpreted in the same manner
as the FLSA, such that the Supreme Court's ruling in Integrity
Staffing is dispositive of the Plaintiff's wage claims.
In June 2017, Vaccaro was hired by Amazon as a warehouse worker at
Amazon's fulfillment center in Robbinsville, New Jersey. She was
paid hourly at the rate of $13.50 per hour, and designated as a
non-exempt employee under New Jersey state law. Vaccaro submits
that she regularly works at least 40 hours in a workweek according
to the Defendant's determination of her hours worked. Moreover,
Vaccaro alleges that Amazon requires employees to take a 30-minute
unpaid meal break each workday.
Initially, the Plaintiff brought the class action complaint against
Amazon in state court, asserting two separate causes of action
under the NJWHL; Count I claims that Amazon failed to pay overtime
wages for time spent in security screenings, and Count II seeks
overtime wages for time spent on meal breaks. The Defendant timely
removed the matter to the Court, basing jurisdiction on the Class
Action Fairness Act ("CAFA"). Subsequently, the Plaintiff filed
her motion to remand, arguing that the Defendant has failed to
establish CAFA's amount in controversy requirement of $5 million.
While the Defendant opposes the motion, it also moves for judgment
on the pleadings.
Judge Wolfson notes that the Western District of Kentucky, since
2014, has been assigned a Multi-District Litigation, In re
Amazon.com, Inc., Fullfillment Center Fair Labor Standards Act
(FLSA) and Wage and Hour Litigation ("Amazon MDL"), Civ. Action No.
14-2504, dealing with the exact claims and issues brought by
Plaintiff in the instant case, albeit under different states' wage
and hour laws than New Jersey state law. Because of certain recent
developments within the Amazon MDL and the Sixth Circuit, the Judge
is providing the Defendant with an opportunity to determine whether
a petition to transfer the matter to the Amazon MDL is appropriate.
As such, its motion for judgment on the pleadings is temporarily
terminated. Should the Defendant elect not to petition for
transfer, its motion for judgment on the pleadings will be
re-listed for adjudication.
In the interim, the Judge decides the motion to remand. The
Plaintiff argues that the Defendant has not met its burden of
establishing the amount in controversy under CAFA. In the Amended
Complaint, the Plaintiff seeks to assert claims on behalf of a
putative class comprised of all persons presently and formerly
employed by the Defendant as warehouse workers who worked in New
Jersey and were subject to the wage and hour policies of the
Defendant at any point during the time period from two years
preceding the date of the instant action was initiated through the
present.
In that regard, the Judge finds there is no dispute that the
putative class has more than 100 members. According to the
Defendant in its Notice of Removal, the putative class contains in
excess of 10,000 non-exempt, hourly-paid employees who worked for
Amazon at a New Jersey warehouse facility. In fact, according to
Amazon, it employed 65,834 individuals as warehouse associates
within the State of New Jersey during the putative class period.
Importantly, the Plaintiff does not dispute this figure, which
represents the potential number of class members. As such, with
65,834 potential members, to meet the amount in controversy, each
member's claim must amount to approximately $75.95. Even based on
the allegations set forth by the Defendant in its Notice of
Removal, the amount in controversy of $5 million is clearly met in
this context.
The Judge accepts the Defendant's plausible allegations that the
amount in controversy exceeds the jurisdictional threshold, unless
they are contested by the Plaintiff. Having reviewed the record,
by a preponderance of the evidence, she finds that the Defendant
has clearly met its burden of establishing the amount in
controversy.
Finally, she comments on the Plaintiff's remaining arguments on her
remand motion. The crux of the Plaintiff's argument centers on the
plausibility of the Defendant's Notice of Removal. According to
the Plaintiff, because the Defendant makes various speculative
assumptions regarding the amount in controversy, such as the number
of overtime hours compensable by each potential class member and
the hourly wage, the Defendant's pleadings are not reasonable or
plausible to meet the Supreme Court test. However, as she has
repeatedly explained, because the Defendant submitted proofs for
the Court to consider in light of the Plaintiff's challenges, the
Judge must consider the evidence in addition to the Defendant's
Notice of Removal. Unless the Plaintiff submits other evidence to
dispute the Defendant's proofs, there is no factual basis for me to
find that the Defendant's certifications or other documentary
evidence are not credible. Thus, based on the uncontroverted
figures included in Amazon's proffered certifications, she finds
that the amount in controversy has easily been met by the
Defendant.
For the reasons set forth, Judge Wolfson denied the Plaintiff's
motion to remand. She administratively terminated the Defendant's
motion for judgment on the pleadings. Should the Defendant elect
not to petition for transfer the matter to the Amazon MDL, its Rule
12(c) motion will be re-listed as an active motion.
A full-text copy of the Court's March 13, 2019 Opinion is available
at https://is.gd/gcJ7hu from Leagle.com.
DIANE VACCARO, Plaintiff, represented by CARLEY ALYSSA DOYLE --
cdoyle@swartz-legal.com -- SWARTZ SWIDLER LLC & MATTHEW D. MILLER
-- mmiller@swartz-legal.com -- SWARTZ SWIDLER, LLC.
AMAZON.COM.DEDC, LLC, Defendant, represented by JOSEPH ALAN NUCCIO
-- joseph.nuccio@morganlewis.com -- MORGAN, LEWIS & BOCKIUS LLP &
RICHARD G. ROSENBLATT -- richard.rosenblatt@morganlewis.com --
MORGAN, LEWIS & BOCKIUS, LLP.
AMAZON.COM: Ronquillo Suit Transferred to W.D. Washington
---------------------------------------------------------
LOUIE RONQUILLO, individually and on behalf of all others similarly
situated, the Plaintiffs, vs. AMAZON.COM, INC., a corporation; and
DOES 1 through 100, inclusive, the Defendants, Case No.
2:19-cv-00207, was transferred from the U.S. District Court for the
Central District Court of California, to the U.S. District Court
for the U.S. District Court for the Western District of Washington
on March 18, 2019. The Western District of Washington Court Clerk
assigned Case No. 2:19-cv-00398-BAT to the proceeding. The case is
assigned to the Hon. Brian A. Tsuchida. The lead case is Case No.
2:16-cv-01554-JCC.
On Jan. 9, 2019, the Defendant removed the Ronquillo Suit from the
Superior Court of the State of California, County of Los Angeles,
to the U.S. District Court for the Central District Court of
California.
On November 15, 2018, the Plaintiff filed an unverified putative
class action complaint for damages in the Superior Court of the
State of California, County of Los Angeles, Case No. 18STCV05155,
against Amazon.com, Inc.
The Plaintiff alleges that Defendants misclassified him as
independent contractors, failed to provide rest breaks and meal
breaks, failed to pay minimum and overtime wages, failed to pay all
wages due to quitting and terminated employees, including
waiting-time penalties, and failed to pay all wage due in violation
of the California Labor Code.[BN]
Attorneys for the Plaintiff:
Douglas Walter Perlman, Esq.
RASTEGAR LAW GROUP APC
22760 Hawthorne Blvd Suite 200
Torrance, CA 90505
Telephone: (310) 961-9600
Facsimile: (310) 961-9094
E-mail: douglas@rastegarlawgroup.com
- and -
Farzad Rastegar, Esq.
RASTEGAR LAW GROUP APC
22760 Hawthorne Boulevard Suite 200
Torrance, CA 90505
Telephone: (310) 961-9600
Facsmile: (310) 961-9094
E-mail: farzad@rastegarlawgroup.com
Attorneys for the Amazon.com Inc.:
Amy A. McGeever, Esq.
Andrea Fellion, Esq.
Brian D. Fahy, Esq.
John S. Battenfeld, Esq.
MORGAN, LEWIS & BOCKIUS LLP
One Market, Spear Street Tower
San Francisco, CA 94105
Telephone: (415) 442-1270
Facsimile: (415) 442-1001
E-mail: amy.mcgeever@morganlewis.com
andrea.fellion@morganlewis.com
brian.fahy@morganlewis.com
jbattenfeld@morganlewis.com
AMERICAN RENAL: Rosen Law Firm Investigates Securities Claims
-------------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, on March 10
disclosed that it is investigating potential securities claims on
behalf of shareholders of American Renal Associates Holdings, Inc.
(NYSE: ARA) resulting from allegations that American Renal may have
issued materially misleading business information to the investing
public.
On March 8, 2019, American Renal announced it would delay the
filing of its earnings report for the fiscal year ended December
31, 2018 as it continues to examine reserve computations and other
accounting practices that may have an impact on the company's
accounts receivable and revenue for fiscal year 2018, as well as
previously reported fiscal years ranging from 2014 through 2017.
This follows the Securities and Exchange Commission's ("SEC")
October 2018 request for documents concerning American Renal's
revenue recognition, collections, and other related matters. On
this news, shares of American Renal fell $2.05 per share or over
16% to close at $10.46 per share on March 8, 2019.
Rosen Law Firm is preparing a class action lawsuit to recover
losses suffered by American Renal investors. If you purchased
shares of American Renal, please visit the firm's website at
https://www.rosenlegal.com/cases-register-1533.html to join the
class action. You may also contact Phillip Kim or Zachary Halper of
Rosen Law Firm toll free at 866-767-3653 or via email at
pkim@rosenlegal.com or zhalper@rosenlegal.com.
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm was Ranked No. 1
by ISS Securities Class Action Services for number of securities
class action settlements in 2017. The firm has been ranked in the
top 3 each year since 2013. [GN]
APPLE INC: Court Denies Bid to Dismiss G. Zaragoza's Suit
---------------------------------------------------------
Judge Phyllis J. Hamilton of the U.S. District Court for the
Northern District of California denied Apple's motion to dismiss
the case, GABRIELA ZARAGOZA, et al., Plaintiffs, v. APPLE INC.,
Defendant, Case No. 18-cv-06139-PJH (N.D. Cal.).
Plaintiffs Zaragoza and Joseph Coyle bring the putative class
action against Apple. They allege nine causes of action: (1)
Violation of California Civil Code Section 1750, et seq. ("CLRA");
(2) Violation of California Business and Professions Code Section
17200, et seq. ("UCL"); (3) Violation of California Business and
Professions Code Section 17500, et seq. ("FAL"); (4) Breach of
Express Warranty; (5) Breach of Implied Warranty; (6) Common Law
Fraud; (7) Quasi-Contract/Restitution; (8) Violation of New York
General Business Law ("N.Y. G.B.L."); and (9) Violation of New York
General Business Law Section 350.
The Plaintiffs base each cause of action on the same underlying
factual allegations. They allege that Apple markets and sells
television shows and seasons of television shows through its iTunes
store on two versions of the Apple TV, Apple TV 4 and 4k. The
iTunes store on Apple TV displays a home page for each season of a
television show, which provides general information about the
season and three purchasing options. Customers can purchase
individual episodes, an entire season where all episodes are
already available ("Buy Season option"), and an option to buy all
current and future episodes of a season where some episodes have
not yet aired so are not yet available ("Season Pass option").
On each season's home page, Apple represents the number of
"Episodes" available in that season. Individual video clips are
displayed in a horizontal-scrolling list along the bottom of the
screen immediately under the word "Episodes." Cost information is
overlain on the thumbnail image representing each video, and some
text is displayed underneath each image.
The Plaintiffs allege that when purchasing the "Buy Season" or
"Season Pass" options, Apple delivers fewer than the advertised
number of episodes. That is because Apple counts both promotional
videos and what consumers allegedly understand the word "episode"
to mean -- plot-based episodes of a television show -- in its
advertised number of episodes. As a result, the Plaintiffs
received fewer episodes than they believed they were purchasing,
and they received a smaller discount by buying the entire season
than they believed they were getting compared to buying individual
episodes. The Plaintiffs allege that they would have paid less or
not purchased the seasons if they knew the truth.
The Named Plaintiffs plead their particular examples of the dynamic
described with respect to the TV shows "Genius: Edison" and
"Killing Eve." At the time of their purchases, the seasons had
commenced but were not yet complete. The Plaintiffs allege they
reviewed the information in the season's home pages and decided to
purchase the "Season Pass" feature, which granted them access to
"all current and future episodes for the season."
The unopposed exhibits to Apple's request for judicial notice also
show that each episode can be selected, which then presents more
detail about it. For example, the Apple TV displays a title for
the video file, the "episode number," the length of the video clip,
its individual price, and a written description.
On Dec. 13, 2018, Apple moved to dismiss all claims and for
judicial notice of certain materials.
Judge Hamilton denied Apple's motion to dismiss in its entirety.
Fe finds that at this motion to dismiss stage, a reasonable
consumer might expect that the representation of "10 Episodes"
reflects how many narrative episodes there will be by the end of
the season -- not the sum of how many narrative episodes and
promotional videos are presently available -- and expect five more
narrative episodes. Apple's arguments about the information
accessible when scrolling through the list of videos do not explain
how a consumer of a Season Pass could cure her misunderstanding
with any amount of investigation at the time of purchase.
He declines to consider the entirely-digital purchases alleged as
"tangible chattels"—and therefore "goods" -- under the CLRA.
However, although it may be appropriate to revisit this question
after some development of the factual record, the Judge finds that
the Plaintiffs' complaint sufficiently alleges a service to state a
claim under the CLRA. Given their allegations that their purchases
included an ongoing ability to access the videos, and the
Defendant's characterization of the purchases as licenses to view
and stream video content from Apple, the claim presents factual
questions inappropriate to resolve at the motion to dismiss stage
about whether the alleged iTunes purchases on Apple TV constitute a
service under the CLRA. Apple's motion to dismiss claims 1 to 3
and 8 to 9 is denied.
Because the Judge may not take judicial notice of the contract
Apple has submitted, Apple's argument that Plaintiffs purchased
only licenses to stream video content from Apple is not persuasive
in the face of the Plaintiffs' complaint. He finds that the
Plaintiffs allege they purchased seasons of television shows
outright. At the motion to dismiss stage, he considers the
Plaintiffs' allegations that Apple provided a mix of goods and
services in the form of outright sales of television shows and the
promise to provide ongoing access to the videos from the
Plaintiffs' Apple TVs. They adequately allege that the essence of
the agreement concerned the sale of the episodes. Those
allegations are enough to allege a purchase of a good within the
meaning of the UCC.
The Plaintiffs allege that the same statements underlying their
FAL, CLRA, and UCL causes of action are the bases for their
warranty claims. As with the FAL, CLRA, and UCL claims, the Judge
holds that the Plaintiffs adequately allege that Apple's
representations about the number of Episodes purchased with a
season amount to an affirmation of fact or promise relating to the
goods sold, and the descriptions associated with the
individually-listed episodes are insufficient to defeat the
Plaintiffs' claim on a motion to dismiss.
The Defendant requests judicial notice of a contract allegedly
entered into between the parties disclaiming all warranties.
Because he may not take judicial notice of that document, the Judge
holds that Apple's argument that it disclaimed all warranties
fails. He denied Apple's motion to dismiss claims 4 and 5.
As to claim 6, he finds that the Plaintiffs' allegations are
"specific enough to give defendants notice of the particular
misconduct so that they can defend against the charge and not just
deny that they have done anything wrong." They explain a plausible
theory that Apple made buying a season look more attractive by
leading a consumer to believe it contained more narrative episodes
than it in fact did. For these reasons, Apple's motion to dismiss
claim 6 is denied.
The Judge also denied Apple's motion to dismiss claim 7. He finds
that the Plaintiffs allege that they bargained for a given number
of television show episodes for a certain price, and they were
delivered fewer than that number of episodes. That adequately
alleges unjust retention of a benefit.
The Plaintiffs also allege that they received fewer episodes than
Apple promised, and that they suffered injury by paying for but not
receiving certain episodes. That is enough to allege an injury.
Accordingly, the Judge denied Apple's motion to dismiss for lack of
standing.
The Plaintiffs object to Apple's request that the court judicially
notice a document Apple identifies as the contract that all
consumers must enter into before making purchases from iTunes. The
Judge holds that the contract is not incorporated into their
complaint by reference. The complaint does not rely on it at all
-- implicitly nor explicitly. The Plaintiffs' complaint alleges
express and implied warranty claims based on language presented by
the Apple TV when accessing the iTunes store. Although some of
Apple's defenses rely on the contract, none of the Plaintiffs'
claims relies at all on its existence.
Finally, as to judicial notice, Judge finds that whether or not it
is appropriate to take judicial notice of the fact that the
contract was Apple's standard agreement at some point, he cannot
take judicial notice of Apple's contention that the parties entered
into this particular agreement.
A full-text copy of the Court's March 13, 2019 Order is available
at https://is.gd/YhK75Z from Leagle.com.
Gabriela Zaragoza, individually and on behalf of all others
similarly & Joseph Coyle, individually and on behalf of all others
similarly, Plaintiffs, represented by Benjamin Heikali --
bheikali@faruqilaw.com -- Faruqi and Faruqi LLP & Joshua Nassir --
jnassir@faruqilaw.com -- Faruqi and Faruqi LLP.
Apple Inc., Defendant, represented by Eric Roberts --
eric.roberts@dlapiper.com -- DLA Piper LLP, pro hac vice, Isabelle
Louise Ord -- isabelle.ord@dlapiper.com -- DLA Piper LLP & Raj N.
Shah -- raj.shah@dlapiper.com -- DLA Piper LLP, pro hac vice.
AXA EQUITABLE: O'Donnell Transferred to Connecticut Superior Court
------------------------------------------------------------------
AXA Equitable Holdings, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 8, 2019,
for the fiscal year ended December 31, 2018, that case, Richard T.
O'Donnell, on behalf of himself and all others similarly situated
v. AXA Equitable Life Insurance Company, was transferred in and is
pending in Connecticut Superior Court, Judicial District of
Stamford.
In August 2015, a lawsuit was filed in Connecticut Superior Court,
Judicial Division of New Haven entitled Richard T. O'Donnell, on
behalf of himself and all others similarly situated v. AXA
Equitable Life Insurance Company.
This lawsuit is a putative class action on behalf of all persons
who purchased variable annuities from AXA Equitable Life, which
were subsequently subjected to the volatility management strategy
and who suffered injury as a result thereof. Plaintiff asserts a
claim for breach of contract alleging that AXA Equitable Life
implemented the volatility management strategy in violation of
applicable law.
In November 2015, the Connecticut Federal District Court
transferred this action to the United States District Court for the
Southern District of New York. In March 2017, the Southern District
of New York granted AXA Equitable Life's motion to dismiss the
complaint. In April 2017, the plaintiff filed a notice of appeal.
In April 2018, the United States Court of Appeals for the Second
Circuit reversed the trial court's decision with instructions to
remand the case to Connecticut state court.
In September 2018, the Second Circuit issued its mandate, following
AXA Equitable Life's notification to the court that it would not
file a petition for writ of certiorari.
The case was transferred in December 2018 and is pending in
Connecticut Superior Court, Judicial District of Stamford.
AXA Equitable said, "We are vigorously defending this matter."
AXA Equitable Holdings, Inc. operates as a diversified financial
services company worldwide. It operates through four segments:
Individual Retirement, Group Retirement, Investment Management and
Research, and Protection Solutions. The company was founded in 1859
and is based in New York, New York. AXA Equitable Holdings, Inc. is
a subsidiary of AXA S.A.
AXA EQUITABLE: Unit Still Defends Brach Family Foundation Suit
--------------------------------------------------------------
AXA Equitable Holdings, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 8, 2019,
for the fiscal year ended December 31, 2018, that AXA Equitable
Life Insurance Company continues to defend a class action suit
entitled, Brach Family Foundation, Inc. v. AXA Equitable Life
Insurance Company.
In February 2016, a lawsuit was filed in the United States District
Court for the Southern District of New York entitled Brach Family
Foundation, Inc. v. AXA Equitable Life Insurance Company.
This lawsuit is a putative class action brought on behalf of all
owners of universal life ("UL") policies subject to AXA Equitable
Life's COI rate increase. In early 2016, AXA Equitable Life raised
COI rates for certain UL policies issued between 2004 and 2007,
which had both issue ages 70 and above and a current face value
amount of $1 million and above. A second putative class action was
filed in Arizona in 2017 and consolidated with the Brach matter.
The current consolidated amended class action complaint alleges the
following claims: breach of contract; misrepresentations by AXA
Equitable Life in violation of Section 4226 of the New York
Insurance Law; violations of New York General Business Law Section
349; and violations of the California Unfair Competition Law, and
the California Elder Abuse Statute. Plaintiffs seek; (a)
compensatory damages, costs, and, pre- and post-judgment interest;
(b) with respect to their claim concerning Section 4226, a penalty
in the amount of premiums paid by the plaintiffs and the putative
class; and (c) injunctive relief and attorneys' fees in connection
with their statutory claims.
Five other federal actions challenging the COI rate increase are
also pending against AXA Equitable Life and have been coordinated
with the Brach action for the purposes of pre-trial activities.
They contain allegations similar to those in the Brach action as
well as additional allegations for violations of various states'
consumer protection statutes and common law fraud. Two actions are
also pending against AXA Equitable Life in New York state court.
AXA Equitable said, "AXA Equitable Life is vigorously defending
each of these matters."
AXA Equitable Holdings, Inc. operates as a diversified financial
services company worldwide. It operates through four segments:
Individual Retirement, Group Retirement, Investment Management and
Research, and Protection Solutions. The company was founded in 1859
and is based in New York, New York. AXA Equitable Holdings, Inc. is
a subsidiary of AXA S.A.
BANK OF AMERICA: $11MM Settlement in McLeod Suit Has Final Approval
-------------------------------------------------------------------
In the case, GINA McLeod, Plaintiff, v. BANK OF AMERICA, N.A.,
Defendant, Case No. 16-cv-03294-EMC (N.D. Cal.), Judge Edward M.
Chen of the U.S. District Court for the Northern District of
California granted the (i) parties' motion for final approval of
the Settlement Agreement; (ii) the Bank's motion for approval of
the Consent Decree that constitutes the injunctive portion of the
Settlement Agreement; and (iii) the Plaintiff's motion for
attorneys' fees and an incentive award.
McLeod, a mortgage loan officer ("MLO") for Defendant Bank of
America, brought the suit on behalf of a class of Bank of America
MLOs, alleging that the Bank failed to reimburse them for
work-related travel in their personal vehicles in violation of
California law. The Court certified the class in December 2017.
The parties then reached a settlement, and the Court granted
preliminary approval to the proposed Settlement Agreement on Nov.
14, 2018.
The settlement class consists of all persons who are or have been
employed, at any time from May 9, 2012 through the date of
Preliminary Approval, by BofA in California under the job titles
Mortgage Loan Officer (job code SM009), Senior Mortgage Loan
Officer (job code SM172), Senior Lending Officer (job code SM172),
FC Lending Officer (job code SM611), Senior FC Lending Officer —
E (job code SM610), and/or Senior FC Lending Officer — NE (job
code SM614). There are 2,403 individuals in the settlement class.
The Settlement Agreement provides both monetary and injunctive
relief to Class Members. The monetary relief is a non-reversionary
$11 million gross settlement fund. Attorneys' fees and costs, an
incentive award for Ms. McLeod (the only Named Plaintiff), a
penalty to the California Labor Workforces Development Agency, and
the Settlement Administrators' fees and costs will be deducted from
the gross settlement fund before funds are distributed to Class
Members. The remaining funds will be distributed to Class Members
pro rata based on the number of weeks they worked for the Bank as
an MLO in California during the settlement period.
The disbursements will be made automatically to the Class Members;
they do not need to submit claims. If the proposed amounts of
Class Counsel's fees and Ms. McLeod's incentive award are approved,
the net settlement fund for Class Members will be $7,552,200. Each
Class Member will receive $41.17 per workweek, which translates to
compensation for 76 miles per workweek at the current IRS mileage
rate of 54.5 cents per mile. The average award will be $3,142.82.
The Plaintiff, based on a small survey of MLOs, estimates that
each MLO logged an average of 170 unreimbursed work-travel miles
per week (a number the Bank disputes). Thus, the reimbursement for
76 miles per workweek represents a 45% recovery.
For the injunctive portion of the Settlement Agreement, the Bank
will submit to a five-year Consent Decree that requires it to:
(i) send monthly email reminders to individuals in the covered MLO
positions, and to individuals directly managing them, that work
travel expenses are reimbursable; (ii) provide training to newly
hired individuals in the covered positions and refresher training
to supervisors of MLOs on reimbursements for work-related travel;
and (iii) train covered MLOs and their supervisors on how to access
the Bank's reimbursement software on a smartphone.
The parties estimate that current Class Members who continue to
work as MLOs during the five-year period will receive approximately
$93 a week in mileage reimbursements, assuming each MLO drives an
average of 170 miles per week—generating approximately $15
million in value to the settlement class. In return, the Class
Members will agree that the Bank's compliance with the Consent
Decree will constitute a complete defense against Labor Code
Section 2802 claims by individuals in Covered Positions for work
travel-related reimbursement during the Covered Period, to the
extent those claims involve allegations that BofA takes
insufficient affirmative steps to socialize or promulgate its
Global Expense Standard or otherwise fails to take sufficient
action to encourage or compel individuals in Covered Positions to
submit for expense reimbursement.
On Dec. 20, 2018, the Settlement Administrator mailed notice of the
settlement to all 2,403 Class Members. The Settlement
Administrator was able to locate new addresses for 145 of these,
and re-mail the notice. The Settlement Administrator also set up a
website for the Class Members read the notice, get answers to
frequently asked questions, review and download case documents,
submit a change of address form, and get contact information for
Class Counsel.
The Class Counsel's motion for attorneys' fees and Ms. McLeod's
request for an incentive award were posted on the website after
they were filed with the Court on Dec. 26, 2018. Finally, the
Settlement Administrator set up a toll-free number for telephone
support, through which it has fielded calls from the 89 Class
Members. The deadline for Class Members to exclude themselves from
the settlement class, and to file objections to the Settlement
Agreement, was Feb. 18, 2019. No Class Member has opted out or
objected.
Judge Chen finds that the Settlement Agreement is fair, reasonable,
and adequate; and granted the motion for final approval.
With regard to the Bank's request to approve and enter the proposed
Consent Decree set forth in paragraphs 56 to 62 of the Settlement
Agreement, the Judge concludes that the robust steps the Bank will
take to facilitate higher rates of mileage reimbursement under the
Consent Decree in exchange for Class Members releasing certain
Section 2802 claims represent a reasonable compromise. As the
parties put it, the Consent Decree addresses the Plaintiff's
concern that the Bank's efforts to encourage reimbursement prior to
the litigation were not sufficient, and addresses the Bank's
concern that, absent certainty of its legal obligations, it will
face repeated litigation on mileage reimbursement for Loan
Officers. Moreover, the scope of the release is limited to claims
involving allegations that BofA takes insufficient affirmative
steps to socialize or promulgate its Global Expense Standard or
otherwise fails to take sufficient action to encourage or compel
individuals in Covered Positions to submit for expense
reimbursement. Accordingly, the Judge granted the motion for
approval of the Consent Decree.
As to attorneys' fees and costs, the Judge concludes that $3
million is a reasonable fee award. This amount represents 27.2% of
the settlement fund and a lodestar multiplier of 3.5, and reflects
the excellent results the Class Counsel achieved on behalf of the
class on the one hand, and the relatively low lodestar figure on
the other. The Class Counsel's request for $58,805.07 in costs
appears to have been reasonably incurred, and is $16,194.93 less
than the $75,000 that was initially set aside from the settlement
fund for costs. Accordingly, the Plaintiff's motion for attorneys'
fees and costs is granted in the amount of $3 million in fees and
$58,805.07 in costs.
Ms. McLeod requests an incentive award of $15,000. In light of the
new information Ms. McLeod has provided regarding the substantial
amount of time she has committed to the litigation and her alleged
wrongful termination by the Bank as a consequence of that
commitment, the Judge finds that an exceptional incentive award is
justified. Accordingly, he granted Ms. McLeod's request for a
$15,000 incentive award.
The order disposes of Docket Nos. 73, 74, and 75.
A full-text copy of the Court's March 13, 2019 Order is available
at https://is.gd/0GmMpP from Leagle.com.
Gina McLeod, individually and on behalf of all others similarly
situated, Plaintiff, represented by Aaron D. Kaufmann --
akaufmann@leonardcarder.com -- Leonard Carder, LLP, David Philip
Pogrel -- dpogrel@leonardcarder.com -- Leonard Carder LLP,
Elizabeth R. Gropman -- egropman@leonardcarder.com -- Leonard
Carder LLP & Edward Joseph Wynne -- ewynne@wynnelawfirm.com --
Wynne Law Firm.
Bank of America, N.A., Defendant, represented by Apalla U. Chopra
-- achopra@omm.com -- O'Melveny & Myers LLP, Susannah Kelly Howard
-- showard@omm.com -- O'Melveny& Myers LLP & Adam P. KohSweeney --
akohsweeney@omm.com -- O'Melveny & Myers LLP.
BEST BUY STORES: Brown-Hasaj Suit Alleges TCPA Violation
--------------------------------------------------------
Wendy Brown-Hasaj, individually and on behalf of others similarly
situated v. Best Buy Stores, L.P. dba Geek Squad, Case No.
19-cv-00554 (D. Minn., March 6, 2019), is brought against the
Defendant for violation of the Telephone Consumer Protection Act.
The Defendant violated the TCPA by making calls to Plaintiff and
Class Members using an "automatic telephone dialing system" and/or
an "artificial or prerecorded voice" without the Plaintiff's and
Class Members' prior express consent.
The Plaintiff is an individual citizen of the State of Maryland
residing in the City of Middle River.
The Defendant is a Minnesota corporation with its principal place
of business in Richfield, Minnesota. [BN]
The Plaintiff is represented by:
Mark L. Vavreck, Esq.
GONKO & VAVRECK PLLC
Designer's Guild Building
401 North Third Street, Ste. 600
Minneapolis, MN 55401
Tel: (612) 659-9500
Fax: (612) 659-9220
E-mail: mvavreck@cgmvlaw.com
BETHLEHEM LANDFILL: Court Dismisses R. Baptiste's Suit
------------------------------------------------------
Judge Chad F. Kenney of the U.S. District Court for the Eastern
District of Pennsylvania granted the Defendant's Motion to Dismiss
the case, ROBIN BAPTISTE AND DEXTER BAPTISTE, Plaintiffs, v.
BETHLEHEM LANDFILL COMPANY, et al., Defendant, Civil Action. No.
18-2691 (E.D. Pa.).
Plaintiffs Robin Baptiste and Dexter Baptiste allege that the
landfill operated by the Defendant emits noxious odors which cause
material injury to their property and seek relief for their claims
of public nuisance, private nuisance, and negligence. The
Plaintiffs also bring the action on behalf of a class of persons
who are owner/occupants and renters of residential property within
a 2.5-mile radius of the Bethlehem Landfill Company Facility.
The Plaintiffs reside at 397 South Oak Street, Freemansburg,
Pennsylvania. They allege that, at all relevant times, the
Defendant has owned and operated a landfill, a 224-acre waste
disposal facility, located at 2335 Applebutter Road, Bethlehem,
Northhampton County, Pennsylvania. They claim that a properly
operated landfill will not cause offensive offsite odor impacts,
and that the Defendant's landfill has been the subject of frequent
complaints from residents in nearby residential areas. They allege
that the Township of Lower Saucon has repeatedly notified Defendant
of residents' discomfort from the stench the landfill continuously
emits and that area residents have made countless complaints to the
Pennsylvania Department of Environmental Protection ("PADEP")
regarding odors from the Defendant's facility. The Plaintiffs
claim that the Defendant landfill also has a well documented
history of repeated failures in the proper maintenance and
managements of the landfill.
The Plaintiffs further allege that the Defendant has failed to
install and maintain adequate technology to properly control the
landfill's emissions such that there are odors on the Plaintiffs'
property on occasions too numerous to recount individually. They
further allege that the Defendant was negligent and reckless in
failing to construct, maintain, and/or operate the landfill, which
caused the interference of odors with their enjoyment of their
property and which they allege are especially injurious to the
Class as compared with the public at large.
The Plaintiffs allege that the class would include all
owner/occupants and renters of residential property within a 2.5
miles radius of the Bethlehem Landfill Co. Facility, excluding the
Defendant, which includes more than 8,400 households within a 2.5
mile radius of the landfill.
Judge Kenney finds that because the Plaintiffs allege no reason
other than their proximity to the landfill to prove they suffered a
special harm, it would necessarily follow that all households
within a 1.6-mile radius of the Defendant's landfill -- assuming at
the very least that the Plaintiffs suffered a special harm --had
suffered a special harm as well because of the improper operation
and maintenance of the Defendant landfill. Thus the Plaintiffs'
proximity alone, which again would necessarily require that
thousands of other households also have a special harm, does not
demonstrate how Plaintiffs are uniquely harmed by the Defendant
landfill over and above the general public. Thus, the Plaintiffs
have failed to state a private claim for public nuisance against
the Defendant, and the claim must be dismissed.
Next, he finds that because the Plaintiffs live a direct distance
of 1.6 miles from the Defendant's landfill, with many other
properties and the Lehigh River between them, their property is not
a neighboring property to the landfill. Therefore, the Plaintiffs'
claim that the improper operation of the landfill is a private
nuisance is inconsistent with the historical role of private
nuisance law as a means of efficiently resolving conflicts between
neighboring, contemporaneous land uses. The allegations the
Plaintiffs make regarding Defendant landfill affect the community
at large and not the Plaintiffs' property in particular. Thus,
they have failed to state a claim for private nuisance against the
Defendant, and the claim must be dismissed.
Finally, he finds that the Plaintiffs do not assert any other
arguments supporting their claim that the Defendant has a duty to
them to protect them from odors on their property and thus have
failed to state a claim for negligence. While he does not opine on
whether the Plaintiffs' claims for injunctive relief are barred by
the doctrine of primary jurisdiction, having dismissed all causes
of action, the Judge holds that the Plaintiffs' request for
punitive and injunctive relief must also be dismissed.
For the reasons he stated, Judge Kenney granted the Defendant's
Motion to Dismiss the Complaint.
A full-text copy of the Court's March 13, 2019 Opinion is available
at https://is.gd/Km4vEc from Leagle.com.
ROBIN BAPTISTE & DEXTER BAPTISTE, ON BEHALF OF THEMSELVES AND ALL
OTHERS SIMILARLY SITUATED, Plaintiffs, represented by KEVIN S.
RIECHELSON -- kriechelson@kcrlawfirm.com -- KAMENSKY, COHEN &
RIECHELSON, NICHOLAS A. COULSON -- info@LDclassaction.com -- LIDDLE
& DUBIN, P.C., STEVEN D. LIDDLE, LIDDLE & DUBIN PC & PHILIP J.
COHEN, KAMENSKY COHEN & ASSOCIATES.
BETHLEHEM LANDFILL COMPANY, A DELAWARE CORPORATION, Defendant,
represented by JAMES B. SLAUGHTER -- jslaughter@bdlaw.com --
BEVERIDGE & DIAMOND, P.C., JOHN H. PAUL -- jpaul@bdlaw.com --
BEVERIDGE & DIAMOND, P.C., MICHAEL G. MURPHY -- mmurphy@bdlaw.com
-- BEVERIDGE & DIAMOND, P.C., NICOLE B. WEINSTEIN --
nweinstein@bdlaw.com -- BEVERIDGE & DIAMOND, P.C., ROBERT MICHAEL
DONCHEZ -- rdonchez@floriolaw.com -- FLORIO PERRUCCI STEINHARDT
FADER LLC, ROBERT A. FREEDBERG -- rfreedberg@floriolaw.com --
FLORIO PERRUCCI STEINHARDT & CAPPELLI LLC & ROY PRATHER, III --
rprather@bdlaw.com -- SAUL EWING ARNSTEIN & LEHR LLP.
BLUEGREEN VACATIONS: Bid to Dismiss Landon Class Suit Pending
-------------------------------------------------------------
Bluegreen Vacations Corporation said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 8, 2019,
for the fiscal year ended December 31, 2018, that the motion to
dismiss in the case entitled, Melissa S. Landon, Edward P. Landon,
Shane Auxier and Mu Hpare, on behalf of themselves and all others
similarly situated v. Bluegreen Vacations Unlimited, Inc. and
Bluegreen Vacations Corporation, Case No. 18-cv-994, is pending.
On June 28, 2018, Melissa S. Landon, Edward P. Landon, Shane Auxier
and Mu Hpare, individually and on behalf of all others similarly
situated, filed a purported class action lawsuit against the
Company and Bluegreen Vacations Unlimited, Inc. (BVU) asserting
claims for alleged violations of the Wisconsin Timeshare Act,
Wisconsin law prohibiting illegal referral selling, and Wisconsin
law prohibiting illegal attorney's fee provisions.
Plaintiffs allegations include that the company failed to disclose
the identity of the seller of real property at the beginning of its
initial contact with the purchaser; that the company misrepresented
who the seller of the real property was; that the company
misrepresented the buyer's right to cancel; that the company
included an illegal attorney's fee provision in the sales
document(s); that the company offered an illegal "today only"
incentive to purchase; and that the company utilize an illegal
referral selling program to induce the sale of vacation ownership
interests (VOIs).
Plaintiffs seek certification of a class consisting of all persons
who, in Wisconsin, purchased from us one or more VOIs within six
years prior to the filing of this lawsuit. Plaintiffs seek
statutory damages, attorneys' fees and injunctive relief.
Bluegreen Vacations said, "We believe the lawsuit is without merit
and intend to vigorously defend the action. We have filed a motion
to dismiss the complaint which is pending."
Bluegreen Vacations Corporation operates as a vacation ownership
company in the United States. It operates through two segments,
Sales of VOIs and Financing; and Resort Operations and Club
Management. Bluegreen Vacations Corporation was founded in 1966 and
is headquartered in Boca Raton, Florida. Bluegreen Vacations
Corporation is a subsidiary of Woodbridge Holdings, LLC.
BLUEGREEN VACATIONS: Continues to Defend Potje Class Suit
---------------------------------------------------------
Bluegreen Vacations Corporation said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 8, 2019,
for the fiscal year ended December 31, 2018, that the company
continues to defend a class action suit entitled, Stephen Potje,
Tamela Potje, Sharon Davis, Beafus Davis, Matthew Baldwin, Tammy
Baldwin, Arnor Lee, Angela Lee, Gretchen Brown, Paul Brown, Jeremy
Estrada, Emily Estrada, Michael Oliver, Carrie Oliver, Russell
Walters, Elaine Walters, and Mike Ericson v. Bluegreen Corporation,
Case No.: 2018CA004782, 15th Judicial Circuit Court, Palm Beach
County, Florida.
On September 22, 2017, Stephen Potje, Tamela Potje, Sharon
Davis, Beafus Davis, Matthew Baldwin, Tammy Baldwin, Arnor Lee,
Angela Lee, Gretchen Brown, Paul Brown, Jeremy Estrada, Emily
Estrada, Michael Oliver, Carrie Oliver, Russell Walters, Elaine
Walters, and Mike Ericson, individually and on behalf of all other
similarly situated, filed a purported class action lawsuit against
the company which asserts claims for alleged violations of the
Florida Deceptive and Unfair Trade Practices Act and the Florida
False Advertising Law.
In the complaint, the plaintiffs alleged the making of false
representations in connection with the company's sales of vacation
ownership interests (VOIs), including representations regarding the
ability to use points for stays or other experiences with other
vacation providers, the ability to cancel VOI purchases and receive
a refund of the purchase price and the ability to roll over unused
points, and that annual maintenance fees would not increase. The
purported class action lawsuit was dismissed without prejudice
after mediation.
However, on or about April 24, 2018, plaintiffs re-filed their
individual claims in Palm Beach County Circuit Court.
Bluegreen Vacations said, "We intend to file a motion for summary
judgment seeking dismissal of the suit."
Bluegreen Vacations Corporation operates as a vacation ownership
company in the United States. It operates through two segments,
Sales of VOIs and Financing; and Resort Operations and Club
Management. Bluegreen Vacations Corporation was founded in 1966 and
is headquartered in Boca Raton, Florida. Bluegreen Vacations
Corporation is a subsidiary of Woodbridge Holdings, LLC.
BLUEGREEN VACATIONS: Faces Wijesinha Class Action
-------------------------------------------------
Bluegreen Vacations Corporation said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 8, 2019,
for the fiscal year ended December 31, 2018, that the company has
been named as defendant in a class action lawsuit entitled, Shehan
Wijesinha, individually and on behalf of all others similarly
situated, v. Bluegreen Vacations Unlimited, Inc., Case No.
19CV20073.
On January 7, 2019, Shehan Wijesinha filed a purported class
action lawsuit alleging violations of the Telephone Consumer
Protection Act. It is alleged that Bluegreen Vacations Unlimited,
Inc. (BVU) called plaintiff's cell phone for telemarketing purposes
using an automated dialing system, and that plaintiff did not give
BVU his express written consent to do so.
Plaintiffs seek certification of a class comprised of other persons
in the United States who received similar calls from or on behalf
of BVU without the person’s consent. Plaintiff seeks monetary
damages, attorneys’ fees and injunctive relief.
Bluegreen Vacations said, "We believe the lawsuit is without merit
and intend to vigorously defend the action."
Bluegreen Vacations Corporation operates as a vacation ownership
company in the United States. It operates through two segments,
Sales of VOIs and Financing; and Resort Operations and Club
Management. Bluegreen Vacations Corporation was founded in 1966 and
is headquartered in Boca Raton, Florida. Bluegreen Vacations
Corporation is a subsidiary of Woodbridge Holdings, LLC.
BLUEGREEN VACATIONS: Settlement Reached in Paxton Class Suit
------------------------------------------------------------
Bluegreen Vacations Corporation said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 8, 2019,
for the fiscal year ended December 31, 2018, that the parties in
the case, Whitney Paxton and Jeff Reeser, on behalf of themselves
and all others similarly situated, v. Bluegreen Vacations
Unlimited, Inc., Phillip Hicks and Todd Smith, agreed to settle the
matter for an immaterial amount.
On August 24, 2016, Whitney Paxton and Jeff Reeser filed a
lawsuit against Bluegreen Vacations Unlimited, Inc. ("BVU"), the
company's wholly-owned subsidiary, and certain of its employees
(collectively, the "Defendants"), seeking to establish a class
action of former and current employees of BVU and alleging
violations of plaintiffs' rights under the Fair Labor Standards Act
of 1938 (the "FLSA") and breach of contract.
The lawsuit also sought damages in the amount of the unpaid
compensation owed to the plaintiffs. The court granted preliminary
approval of class action in September 2017 to conditionally certify
collective action and facilitate notice to potential class members
be granted with respect to certain employees and denied as to
others.
In February 2019, the parties agreed to settle the matter for an
immaterial amount.
Bluegreen Vacations said, "It is expected that the court will
approve the settlement and the dismissal of the lawsuit after the
settlement documents are fully prepared and executed."
Bluegreen Vacations Corporation operates as a vacation ownership
company in the United States. It operates through two segments,
Sales of VOIs and Financing; and Resort Operations and Club
Management. Bluegreen Vacations Corporation was founded in 1966 and
is headquartered in Boca Raton, Florida. Bluegreen Vacations
Corporation is a subsidiary of Woodbridge Holdings, LLC.
BLUEGREEN VACATIONS: Siu Class Action Concluded
-----------------------------------------------
Bluegreen Vacations Corporation said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 8, 2019,
for the fiscal year ended December 31, 2018, that the case, Gordon
Siu, individually and on behalf of all others similarly situated,
v. Bluegreen Vacations Unlimited, Inc., Choice Hotels
International, Inc., et al., Case No. 3:18-CV-00022, is now closed.
On January 4, 2018, Gordon Siu, individually and on behalf of
all others similarly situated, filed a lawsuit against BVU and
Choice Hotels International, Inc. which asserted claims for alleged
violations of California law that relates to the recording of
telephone conversations with consumers.
Plaintiff alleged that after staying at a Choice Hotels resort,
defendants placed a telemarketing call to plaintiff to sell the
Choice Hotels customer loyalty program and a vacation package at a
Choice hotel via the Bluegreen Getaways vacation package program.
Plaintiff alleged that he was not timely informed that the phone
conversation was being recorded and sought certification of a class
comprised of other persons recorded on calls without their consent
within one year before the filing of the original complaint.
After Bluegreen Vacations Unlimited, Inc. (BVU) moved to dismiss
the complaint, plaintiff amended his complaint to dismiss one of
the two causes of action in the original complaint on the basis
that that particular statute only concerns land line phones.
Plaintiff and Choice agreed to a confidential settlement and Choice
was dismissed from this lawsuit. On November 22, 2018, the parties
agreed to settle the matter for a nominal amount.
In January 2019, the settlement was approved, and the case is now
closed.
Bluegreen Vacations Corporation operates as a vacation ownership
company in the United States. It operates through two segments,
Sales of VOIs and Financing; and Resort Operations and Club
Management. Bluegreen Vacations Corporation was founded in 1966 and
is headquartered in Boca Raton, Florida. Bluegreen Vacations
Corporation is a subsidiary of Woodbridge Holdings, LLC.
BOSTON MARKET: Reyes Sues Over Unpaid OT, Wages and Reimbursements
------------------------------------------------------------------
JOEL REYES, individually and on behalf of all others similarly
situated Plaintiff, v. BOSTON MARKET CORPORATION, a Delaware
corporation; and DOES 1 through inclusive, Defendants, Case No.
19STCV09405 (Cal. Super. Ct., Los Angeles Cty., March 20, 2019)
seeks to recover, among other things, unpaid compensation arising
from DEFENDANTS' failure to provide employees meal and rest periods
as required under California law, unpaid minimum and overtime
wages, and unreimbursed business expenses.
The DEFENDANTS do not pay PLAINTIFF and CLASS MEMBERS all wages
earned and due, through methods and schemes which include, but are
not limited to, failing to provide meal periods; failing to
authorize and permit rest breaks; failing to pay minimum and
overtime wages; failing to provide accurate itemized statements;
failing to maintain required records; and failing to compensate
PLAINTIFF and CLASS MEMBERS for necessary expenditures, in
violation of the California Labor Code and the applicable
Industrial Welfare Commission ("IWC") Wage Order, says the
complaint.
REYES was employed by DEFENDANTS in the State of California as a
non-exempt employee.
BOSTON MARKET is a Delaware corporation and is authorized to
conduct business, and does conduct business, in the State of
California.[BN]
The Plaintiff is represented by:
Matthew J. Matern, Esq.
Launa Adolph, Esq.
MATERN LAW GROUP, PC
1230 Rosecrans Avenue, Suite 200
Manhattan Beach, CA 90266
Phone: (310)531-1900
Facsimile: (310) 531-1901
BRISTOW GROUP: Howard G. Smith Files Securities Class Action
------------------------------------------------------------
Law Offices of Howard G. Smith disclosed that a class action
lawsuit has been filed on behalf of investors that purchased
Bristow Group Inc. (NYSE: BRS ) ("Bristow" or the "Company")
securities between February 8, 2018 and February 12, 2019,
inclusive (the "Class Period"). Bristow investors have until April
15, 2019 to file a lead plaintiff motion.
On February 11, 2019, the Company disclosed that it "did not have
adequate monitoring control processes in place related to
non-financial covenants within certain of its secured financing and
lease agreements." The same day, the Company announced that it had
terminated its agreement to purchase Columbia Helicopters, Inc. On
this news, the Company's share price fell $1.22 per share, or
nearly 40%, to close at $1.84 per share on February 12, 2019, on
unusually heavy trading volume.
Then on February 12, 2019, the Company filed a Form 8-K with the
SEC to announce: (i) that it had terminated its agreement to
purchase Columbia Helicopters, Inc.; and (ii) that Jonathan E.
Baliff would retire as Chief Executive Officer and would resign
from the Board of Directors, effective February 28, 2019. On this
news, the Company's share price fell $0.64, or nearly 35%, to close
at $1.20 per share on February 13, 2019, thereby injuring
investors.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to
investors: (1) that the Company lacked adequate monitoring
processes related to non-financial covenants within its secured
financing and lease agreements; (2) that, as a result, the Company
could not reasonably assure compliance with certain non-financial
covenants; (3) that, as a result, the Company was reasonably likely
to breach certain agreements; (4) that, as a result, the Company
had understated its short-term debt; (5) the required corrections
would materially impact financial statements; (6) that there was a
material weakness in the Company's internal controls over financial
reporting; and (7) that, as a result of the foregoing, Defendants'
positive statements about the Company's business, operations, and
prospects were materially misleading and/or lacked a reasonable
basis.
If you purchased shares of Bristow, have information or would like
to learn more about these claims, or have any questions concerning
this announcement or your rights or interests with respect to these
matters, please contact Howard G. Smith, Esquire, of Law Offices of
Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem,
Pennsylvania 19020 by telephone at (215) 638-4847, toll-free at
(888) 638-4847, or by email to howardsmith@howardsmithlaw.com, or
visit our website at www.howardsmithlaw.com.
Howard G. Smith, Esq.
Law Offices of Howard G. Smith
3070 Bristol Pike, Suite 112,
Bensalem, Pennsylvania 19020
Website: www.howardsmithlaw.com
Telephone: 215-638-4847
Toll free: 888-638-4847
Email: howardsmith@howardsmithlaw.com [GN]
CABLEVISION SYSTEMS: Jensen Moves to Certify Class of Subscribers
-----------------------------------------------------------------
The Plaintiff in the lawsuit entitled PAUL JENSEN, individually and
on behalf of all others situated v. CABLEVISION SYSTEMS
CORPORATION, a Delaware Corporation; ALTICE N.V. and DOES 1 through
100, Inclusive, Case No. 2:17-cv-00100-ADS-AKT (E.D.N.Y.), renews
his motion for class certification.
Mr. Jensen contends that he is not asking the Court to reconsider
(in whole or in part) its previous order denying class
certification. Nor is he asking the Court to reconsider its
reasoning in denying his previous Motion for Class Certification.
He asserts that he has tailored a new class definition, which
avoids the exact issues the Court found warranted denial of
certification of the Previous Class. The new class is defined as:
All natural persons who have subscribed (via Work Order) to
Cablevision's Optimum Online Service in the State of New
York and who, as a result, have leased wireless routers that
broadcast an Optimum Wi-Fi Hotspot, and subsequently
'opted-out' of arbitration.
Excluded from the Class are: (a) all judges who preside over this
case and their spouses; (b) all persons who elect to exclude
themselves from the Class; (c) Defendants' employees, officers,
directors, agents, and representatives.
Mr. Jensen also seeks an order (1) appointing him as the Class
Representative; and (2) appointing his counsel as Class
Counsel.[CC]
The Plaintiff is represented by:
Hank Bates, Esq.
David Slade, Esq.
CARNEY BATES & PULLIAM, PLLC
519 W. 7th Street
Little Rock, AR 72201
Telephone: (501) 312-8500
Facsimile: (501) 312-8505
E-mail: hbates@cbplaw.com
dslade@cbplaw.com
- and -
Gillian L. Wade, Esq.
Sara D. Avila, Esq.
MILSTEIN JACKSON FAIRCHILD & WADE, LLP
10250 Constellation Blvd., 14th Floor
Los Angeles, CA 90067
Telephone: (310) 396-9600
Facsimile: (310) 396-9635
E-mail: gwade@mjfwlaw.com
savila@mjfwlaw.com
- and -
M. Ryan Casey, Esq.
THE CASEY LAW FIRM, LLC
20 NE Thompson St.
Portland, OR 97212
Telephone: (503) 928-7611
Facsimile: (503) 345-7470
E-mail: ryan@rcaseylaw.com
- and -
Brian T. Ku, Esq.
KU & MUSSMAN, P.A.
18501 Pines Blvd., Suite 209-A
Pembroke Pines, FL 33029
Telephone: (305) 891-1322
Facsimile: (305) 891-4512
E-mail: brian@kumussman.com
CAISSE DE DEPOT: Faces Class Action Over REM Service Disruptions
----------------------------------------------------------------
CTV Montreal reports that with REM construction expected to delay
thousands of commuters over the coming years, one train rider is
hoping to take the matter to court.
Laval resident Magali Barre has enlisted the help of lawyers.
They are seeking authorization to launch a class action lawsuit
against the Caisse de Depot, Exo, Regional Transit Authority, and
Quebec's Attorney General.
She says the disruptions are forcing her to make a difficult
choice.
"I will have to choose between my job and my family," she said. "I
have two young children. I want to spend time with them."
Ms. Barre lives on the Deux-Montagnes train line.
Since last April, there's been no weekend service on that line,
with more cancellations expected.
A normal commute for her takes 35 minutes.
Ms. Barre now anticipates a much longer daily transit journey
thanks to the REM construction.
She also doesn't want to move from Laval.
One of her lawyers said that the legal action isn't aimed at the
REM, but rather the transit options for commuters during its
construction.
"The solutions are not good enough," said Gerard Samet, a lawyer
working with Ms. Barre.
He said that it will take about eight months to know if the class
action has been authorized. [GN]
CAPTAIN GEORGE'S: Remove Labor Suit to District of South Carolina
-----------------------------------------------------------------
The Defendants remove case captioned ZACHARY TARRY, CHRIS
GAGLIASTRE, and OLGA ZAYNEEVA, On behalf of themselves and others
similarly situated, the Plaintiffs, vs. CAPTAIN GEORGE'S OF SOUTH
CAROLINA, LP; CAPTAIN GEORGE'S OF SOUTH CAROLINA, INC.; PITSILIDES
MANAGEMENT, LLC; GEORGE PITSILIDES; and SHARON PITSILIDES, the
Defendants, Case No. 2018CP2606184, from the South Carolina Court
of Common Pleas for the Fifteenth Judicial Circuit to the U.S
District Court for the District of South Carolina on Mar. 15,
2019.
The complaint alleges that as a result of the underpayment of the
base wage, the Defendants failed to pay the the Plaintiffs and the
Putative Class the required minimum wage (i.e., $7.25 per hour),
and that the Defendants are liable to the the Plaintiffs and the
Putative class for, inter alia, those unpaid wages.
Tipped wage employees who would be eligible for membership in the
Putative Class (if it is certified using the Plaintiffs' proffered
definition) worked approximately 380,000 hours at Captain George's
restaurants in South Carolina between May 19, 2014 and the date of
the notice.
The difference between the base wage the Complaint alleges was paid
to the the Plaintiffs and the Putative class and full minimum wage
is $5.125 ($7.25 - $2.125). Thus, the complaint alleges minimum
wage claims for the Putative Class of approximately $ 1,947,500,
the lawsuit says.[BN]
Counsel for the Defendants:
Paul F. Tecklenburg, Esq.
TECKLENBURG & JENKINS, LLC
P.O. Box 20667
1819 Meeting Street Road, Ste. 150
Charleston, SC 29413
Telephone: (843) 534-2628
Facsimile: (843) 534-2629
E-mail: pft@tecklaw.net
CBS CORP: Kahn Swick Continues to Probe Officers & Directors
------------------------------------------------------------
Former Attorney General of Louisiana, Charles C. Foti, Jr., Esq., a
partner at the law firm of Kahn Swick & Foti, LLC ("KSF"),
disclosed that KSF continues its investigation into CBS Corporation
(NYSE: CBS).
Beginning in November 2017, news reports revealed claims of sexual
harassment and lewd conduct by veteran CBS anchor Charlie Rose
toward numerous female employees dating back decades up to 2017,
which CBS executives knew of but failed to take adequate measures
to prevent. In July 2018, media reports exposed sexual harassment
claims against CEO Leslie Moonves for conduct spanning the 1980s
and mid-2000s including forcible touching or kissing and threats of
career sabotage, all largely ignored by CBS. Subsequent reports
further detailed a widespread culture of sexual harassment at CBS,
ignored or even suppressed by executives, including three
six-figure settlements with employees.
The Company's actions, directed by its executives, have exposed it
to significant litigation and expense including an ongoing
securities class action lawsuit for failing to disclose material
information to investors regarding the above conduct, violating
federal securities laws. Recently, the lawsuit's allegations were
expanded to include that Moonves and other executives had sold over
3.4 million shares of CBS stock before the claims went public,
totaling over $200M in proceeds.
KSF's investigation is focusing on whether CBS officers and/or
directors breached their fiduciary duties to CBS shareholders or
otherwise violated state or federal laws.
If you have information that would assist KSF in its investigation,
or have been a long-term holder of CBS shares and would like to
discuss your legal rights, you may, without obligation or cost to
you, call toll-free at 1-877-515-1850 or email KSF Managing Partner
Lewis Kahn ( lewis.kahn@ksfcounsel.com ), or visit
https://www.ksfcounsel.com/cases/nyse-cbs/ to learn more.
To learn more about KSF, you may visit www.ksfcounsel.com.
Lewis Kahn, Esq.
Managing Partner
Kahn Swick & Foti, LLC
1100 Poydras St., Suite 3200
New Orleans, LA 70163
Telephone: 1-877-515-1850
Email: lewis.kahn@ksfcounsel.com [GN]
CEDAR RAPIDS, IA: Ends Traffic Camera Collection Effort
-------------------------------------------------------
Brian A. Morelli, writing for The Gazette, reports that Cedar
Rapids quietly discontinued a controversial collection initiative
in which people owing money for unpaid automated traffic camera
tickets had their debt turned over to the state, which in turn
withheld their state income tax returns.
The city halted the initiative, which tapped into the Iowa
Department of Administrative Services income offset program, months
ago in the aftermath of an Iowa Supreme Court ruling. The city
appeared to acknowledge the change for the first time publicly in
response to a question during a fiscal 2020 budget workshop on Feb.
5.
"We've halted those since we had the Supreme Court ruling," Casey
Drew, Cedar Rapids finance director, said at the time. "We halted
collections of that to the offset program at this point in time."
The city later elaborated to specify all "proactive collection
efforts" through the offset program and collection agencies were
suspended on Sept. 4.
"Interactions with debtors that were in progress at that time were
completed, and the only other interactions that have occurred since
then were those initiated by debtors," Drew said in an email sent
by city spokesperson Maria Johnson.
Changes were prompted by two separate rulings in a class action
case of Myron Behm et al vs. the city of Cedar Rapids and Gatso
USA, the city's traffic camera vendor from Beverly, Mass.
The ruling raised doubt about collecting on unpaid tickets through
the offset program or otherwise because the city's process
sidestepped a state requirement for a municipal infraction process
to determine liability before a judge. The city had been finding
people who ignored tickets guilty by default.
"Like the ordinance, the Iowa statutory provision does not provide
for any liability to arise until the city takes the affirmative
step of filing an enforcement action in district court and obtains
a judgment against the defendant," the court wrote on Jan. 25.
On Feb. 14, Iowa City attorney James Larew, Esq. who's been behind
several traffic camera lawsuits against the city of Cedar Rapids,
including the Behm case, filed a petition for declaratory judgment
and injunctive relief in another class action — Simon Conway et
al vs. the city of Cedar Rapids and Municipal Collections of
America — seeking refunds for people who'd paid under the city's
December 2017 collection initiative.
This was based on the language in the Behm ruling. It's not clear
to how many people the class action would apply.
The city generated nearly $4 million from its collection initiative
launched in December 2017. This includes $3.1 million from 35,000
tickets collected from the offset program and $586,000 from 7,700
tickets collected through a collection agency, which was a
preliminary effort before turning the debt over to the state, Drew
said in the email.
The city reported 221,000 unpaid citations dating back to 2010
worth $17 million when officials launched the collection
initiative. Drew said approximately 177,000 unpaid tickets worth
$14 million remain.
The collection initiative generated backlash on a couple of fronts.
Some questioned the fairness of withholding a tax return over
small-dollar tickets. Some had moved since receiving their ticket
and said they never received the final notice to pay. Meanwhile,
launching the program days before Christmas infuriated some state
lawmakers already weighing a ban on traffic cameras.
Cedar Rapids had the most robust and lucrative traffic camera
program in the state, but the busiest cameras on Interstate 380
have been off since a court ruling in 2017. City officials have
built a budget for fiscal 2020, which begins on July 1, forecasting
$4.7 million from the cameras to help pay for 10 new police
officers.
The city has not set a date for restarting the cameras but has
disclosed plans to establish a municipal infraction process in
conjunction with the cameras' return.
Collection methods have been just one aspect of criticism over the
fairness of traffic cameras, which some believe are just a cash
cow. Cedar Rapids police say the cameras make roads safer and help
patrol the I-380 S-curve, a curvy stretch of road that is nearly
impossible for police to safely enforce traffic.
Courts have mostly sided with Cedar Rapids when it comes to
legality, but justices have also raised critical questions that
have forced the city to pivot. Iowa lawmakers continue to debate
whether to ban traffic cameras, regulate them or continue to leave
them largely unaddressed in Iowa Code.[GN]
CENTURYLINK INC: Continues to Defend Houser Class Action
--------------------------------------------------------
CenturyLink, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 11, 2019, for the
fiscal year ended December 31, 2018, that the company continues to
defend a class action suit entitled, Houser et al. v. CenturyLink,
et al.
CenturyLink and certain CenturyLink board members and officers were
named as defendants in a putative shareholder class action lawsuit
filed on June 12, 2018 in the Boulder County District Court of the
state of Colorado, captioned Houser et al. v. CenturyLink, et al.
The complaint asserts claims on behalf of a putative class of
former Level 3 shareholders who became CenturyLink shareholders as
a result of the transaction. It alleges that the proxy statement
provided to the Level 3 shareholders failed to disclose material
information of several kinds, including information about strategic
revenue, customer loss rates, and customer account issues, among
other items.
The complaint seeks damages, costs and fees, rescission, rescissory
damages, and other equitable relief.
CenturyLink, Inc. provides various communications services to
residential, business, wholesale, and governmental customers in the
United States and internationally. The company operates in two
segments, Business and Consumer. CenturyLink, Inc. was founded in
1968 and is based in Monroe, Louisiana.
CENTURYLINK INC: Faces Max Suit Over Share Price Drop
-----------------------------------------------------
J. PHILLIP MAX, Individually and on behalf of all others similarly
situated v. CENTURYLINK, INC., GLEN F. POST, III, SUNIT S. PATEL,
JEFF K. STOREY, INDRANEEL DEV, and ERIC J. MORTENSEN, Case No.
2:19-cv-01802 (C.D. Cal., March 12, 2019), alleges that the
Plaintiff purchased the Company's securities at artificially
inflated prices during the Class Period and was damaged upon the
revelation of corrective disclosure.
The Defendants made false and/or misleading statements and/or
failed to disclose that, among other things, CenturyLink had
undisclosed material weaknesses in its internal controls over
revenue recording processes and the procedures for measuring fair
value of assets and liabilities assumed in connection with its
acquisition of Level 3 Communications, Inc. On March 4, 2019, the
Company announced it would not be able to timely file its annual
report for the period ended December 31, 2018, because of that
weakness.
On this news, CenturyLink's stock price fell $0.82 per share, or
over 6%, to close at $12.15 per share on March 4, 2019. As a result
of the Defendants' wrongful acts and omissions, and the precipitous
decline in the market value of the Company's securities, the
Plaintiff and other Class members have suffered significant losses
and damages, the complaint says.
CenturyLink purports to provide various communications services to
residential, business, wholesale, and governmental customers
primarily in the United States. The Company is incorporated in
Louisiana with global offices in El Segundo, California. The
Individual Defendants are directors and officers of the
Company.[BN]
The Plaintiff is represented by:
Jennifer Pafiti, Esq.
POMERANTZ LLP
1100 Glendon Avenue. 15th Floor
Los Angeles, CA 90024
Telephone: (310) 405-7190
E-mail: jpafiti@pomlaw.com
- and -
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: jalieberman@pomlaw.com
ahood@pomlaw.com
- and -
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
Ten South La Salle Street, Suite 3505
Chicago, IL 60603
Telephone: (312) 377-1181
Facsimile: (312) 377-1184
E-mail: pdahlstrom@pomlaw.com
CENTURYLINK INC: Final Judgment & Approval of Settlement Appealed
-----------------------------------------------------------------
CenturyLink, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 11, 2019, for the
fiscal year ended December 31, 2018, that an objector has taken an
appeal from the court's approval of the settlement and entry of
final judgment in the case, Jeffery Tomasulo v. CenturyLink, Inc.,
et al., and that appeal is pending.
CenturyLink and certain members of the CenturyLink Board of
Directors have been named as defendants in a putative shareholder
class action lawsuit filed on January 11, 2017 in the 4th Judicial
District Court of the State of Louisiana, Ouachita Parish,
captioned Jeffery Tomasulo v. CenturyLink, Inc., et al.
The complaint asserts, among other things, that the members of
CenturyLink's Board allegedly breached their fiduciary duties to
the CenturyLink shareholders in approving the Level 3 merger
agreement and, more particularly, that: the consideration that
CenturyLink agreed to pay to Level 3 stockholders in the
transaction is allegedly unfairly high; the CenturyLink directors
allegedly had conflicts of interest in negotiating and approving
the transaction; and the disclosures set forth in our preliminary
joint proxy statement/prospectus filed in December 2016 are
insufficient in that they allegedly fail to contain material
information concerning the transaction.
The complaint seeks, among other things, a declaration that the
members of the CenturyLink Board have breached their fiduciary
duties, corrective disclosure, rescissory or other damages and
equitable relief, including rescission of the transaction.
In February 2017, the parties entered into a memorandum of
understanding providing for the settlement of the lawsuit.
In January 2019, the court approved the settlement and entered
final judgment. An objector filed an appeal, and that appeal is
pending. The costs of the settlement are not material to our
consolidated financial statements.
CenturyLink, Inc. provides various communications services to
residential, business, wholesale, and governmental customers in the
United States and internationally. The company operates in two
segments, Business and Consumer. CenturyLink, Inc. was founded in
1968 and is based in Monroe, Louisiana.
CERTIFIEDSAFETY INC: Fails to Pay Workers Proper Wages, Jones Says
------------------------------------------------------------------
HAROLD JONES, individually and on behalf of all others similarly
situated v. CERTIFIEDSAFETY, INC., ANDEAVOR F/K/A TESORO
CORPORATION, and TESORO REFINING & MARKETING COMPANY LLC, Case No.
4:19-cv-01338-YGR (N.D. Cal., March 12, 2019), is brought against
the Defendants to challenge their alleged policies and practices
of, among other things, failing to compensate the Plaintiff and
other hourly Safety Attendants and Safety Foremen for all hours
worked under the Fair Labor Standards Act.
CertifiedSafety is an American company that provides skilled safety
personnel to clients operating oil refineries. CertifiedSafety
provides services to clients with oil refineries throughout the
United States, including California, Washington, and Minnesota.
CertifiedSafety maintains its headquarters in League City, Texas,
and does business throughout California, Washington, and
Minnesota.
Andeavor, formerly known as Tesoro Corporation, is an American
corporation that refines and markets petroleum products. Andeavor
operates oil refineries in California, Washington, Alaska,
Minnesota, and the United States. Andeavor maintains its
headquarters in San Antonio, Texas, and does business in
California, Washington, and Minnesota.
Tesoro Refining & Marketing Company LLC is an American company that
refines and markets petroleum products. Tesoro Refining is a
related entity to Andeavor. Tesoro Refining operates oil
refineries in California, Washington, Minnesota, and the United
States. Tesoro Refining maintains its headquarters in San Antonio,
Texas, and does business in California, Washington, and
Minnesota.[BN]
The Plaintiff is represented by:
Carolyn H. Cottrell, Esq.
David C. Leimbach, Esq.
Michelle S. Lim, Esq.
Scott L. Gordon, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
Facsimile: (415) 421-7105
E-mail: ccottrell@schneiderwallace.com
dleimbach@schneiderwallace.com
mlim@schneiderwallace.com
sgordon@schneiderwallace.com
CHIASMA INC: Settlement in Gerneth Suit Underway
------------------------------------------------
Chiasma, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 8, 2019, for the fiscal
year ended December 31, 2018, that the parties in Gerneth v.
Chiasma, Inc., et al., are awaiting the court's decision on
Plaintiff's motion for preliminary approval of the settlement.
On June 9, 2016, Chiasma, Inc. and certain of its current and
former officers were named as defendants in a purported federal
securities class action lawsuit filed in the United States District
Court for the District of Massachusetts, styled Gerneth v. Chiasma,
Inc., et al.
An amended complaint was filed by the lead plaintiff on February
10, 2017 challenging the company's statements regarding the Phase 3
clinical trial methodology and results, and the company's ability
to obtain FDA approval for octreotide capsules, in violation of
Sections 11 and 15 of the Securities Act of 1933.
The amended complaint adds as defendants current and former members
of the company's board of directors, as well as the investment
banks that underwrote its IPO on July 15, 2015. The plaintiff is
seeking an unspecified amount of compensatory damages on behalf of
himself and members of a putative shareholder class, including
interest and reasonable costs and expenses incurred in litigating
the action, and any other relief the court determines is
appropriate.
The defendants filed a motion to dismiss the amended complaint on
March 27, 2017 and on February 15, 2018, the court denied
defendants' motion to dismiss. The defendants filed an answer to
the amended complaint on March 30, 2018.
On February 27, 2019, the parties agreed to a settlement of all
legal claims in which defendants expressly denied that they have
committed any act or omission giving rise to any liability under
Sections 11 or 15 of the Securities Act of 1933 and which will
primarily be funded by our insurance.
On March 5, 2019, the court issued an order scheduling the hearing
on Plaintiff's motion for preliminary approval of the settlement
for March 14, 2019.
Chiasma said, "We continue to believe this lawsuit is meritless
and, to the extent the court does not approve a settlement, we
intend to vigorously defend against it."
Chiasma, Inc., a clinical-stage biopharmaceutical company, focuses
on developing oral medications using transient permeability
enhancer technology platform for the treatment of rare and serious
chronic disease in the United States, Europe, and internationally.
Chiasma, Inc. was founded in 2001 and is headquartered in Waltham,
Massachusetts.
CLAIMS RESOLUTION: Class Action Over Earthquake Payouts Okayed
--------------------------------------------------------------
TVNZ reports that the High Court in Christchurch has granted leave
for legal action to be taken that, if successful, could see
thousands of Canterbury home owners claim back the fees they were
charged by one of the city's largest post-earthquakes advocacy
services.
Claims Resolution Service has just one Director, Bryan Staples, a
high-profile campaigner against EQC and insurers over their
earthquake pay-outs.
A High Court decision, obtained exclusively by TVNZ's programme,
allows for a class action to be taken against Staples' company, and
a law firm he worked with, alleging a serious breach of
professional trust. [GN]
COLE HAAN: Court Narrows Claims in Amended Park FTCA Suit
---------------------------------------------------------
In the case, KEVIN PARK, individually and on behalf of all others
similarly situated, Plaintiff, v. COLE HAAN, LLC, Defendant, Case
No. 17cv1422-LAB (BGS) (S.D. Cal.), Judge Larry Alan Burns of the
U.S. District Court for the Southern District of California granted
in part and denied in part the Defendant's motion to dismiss the
first amended complaint ("FAC").
Park brings the putative class action for violation of California's
Unfair Competition Law ("UCL"); and California's False Advertising
Law ("FAL"), in connection with the sale of shoes at the
Defendant's outlet stores in California. Park alleges he was
shopping at Carlsbad Premium Outlets on June 25, 2017, where Cole
Haan has an outlet store. He says he was enticed to enter the Cole
Haan store because of a large sign indicating there was a 20-40%
off sale going on inside. He interpreted this to mean that each of
the items were 20-40% off the original prices.
In the store, he found a pair of women's shoes with a price of $182
and a sign above it that said 50% off. He interpreted this to mean
the shoes had originally sold for $182 and were now 50% off. He
alleges that in its outlet stores Cole Haan makes a practice of
advertising items at discounted or sale prices when in fact the
items were never sold at the price the discount is purportedly
taken from. He also alleges that the store was running a sale
whereby a customer who spent over $200 could receive an additional
$50 off. He says he purchased an unspecified additional item in
order to receive that discount.
Park alleges that, based on the higher listed price, he believed
that he was receiving a discount on the shoes. He also says this
misled him into thinking the shoes were the same kind Cole Haan
sold in its traditional non-outlet retail stores. In fact, he
says, the shoes he bought were never sold at the original price,
and the 50% discount was illusory.
When Park returned home, his wife tried on the shoes and did not
like them. When he examined them, the shoes appeared to be lower
quality than he would have expected of Cole Haan shoes sold in a
traditional store. Park alleges that Cole Haan's website promises
generally high quality clothing, though he does not allege he
relied on that. He also alleges Cole Haan recently changed its
website, although he does not allege he relied on that either.
Park claims Cole Haan deceived him into believing (1) the shoes he
bought were discounted when in fact they were not, and (2) the
shoes Cole Haan sold in its outlet store were also sold in Cole
Haan's traditional stores, and were of the same quality.
The Court granted in part a motion to dismiss Park's complaint, and
he filed the FAC, omitting claims against Defendant Apax Partners
Worldwide, LLP and leaving Cole Haan as the sole Defendant. The
FAC also omitted some theories of recovery, factual allegations and
remedies. Cole Haan has now moved to dismiss, both for failure to
state a claim and for lack of jurisdiction.
Cole Haan asks the Court to take judicial notice under Fed. R.
Evid. 201 of metadata on Park's original complaint, Cole Haan's
return policy, and exemplars of pricing displays at its store.
Judge Burns holds that consideration of the metadata is not
necessary at this time, and the request is denied without
prejudice. Park has conceded the authenticity of the return
policy, and has relied on it himself. The Judge construes the
return policy as incorporated by reference into the complaint, but
in the alternative judicial notice is granted. For reasons
discussed in the Court's earlier order, judicial notice of the
pricing displays is denied. This does not preclude Cole Haan from
offering the displays at some later stage of litigation, such as
summary judgment.
Next, the Judge finds that Park's claim that the shoes were
misrepresented as previously having been sold in a traditional
retail store does not meet Rule 9(b)'s pleading standard. And he
cannot bring claims on behalf of the class that he himself could
not bring.
Cole Haan has pointed to facts plausibly suggesting that Park
signed his verified complaint on either June 27 or June 29, 2017,
and not, as Park's counsel represents, July 13. Cole Haan suggests
that Park went to the outlet store at his counsel's suggestion in
order to look for a violation so he could sue. Park's counsel
represents that the date of June 27, 2017 on the complaint is a
typographical error.
Assuming Cole Haan's accusation is true, the Judge finds that Park
would not have suffered any injury nor would he have standing.
Rather, he would have known the truth about the discounted pricing
in advance, and would have bought the shoes without being deceived.
Even assuming the original complaint was signed on June 27 or 29,
Park does not necessarily lack standing, though it would raise
serious questions.
The issue of when the original complaint was created and signed is
referred to Magistrate Judge Bernard Skomal for a report and
recommendation. Judge Skomal should receive evidence, including
evidence about the metadata and its meaning, and hold a hearing to
determine credibility. Because Park's reasons for purchasing the
shoes and for not returning them are at issue, Judge Skomal may
also inquire into collateral issues such as the timing and
circumstances of Park's purchase. The report and recommendation
should, to the extent possible, make findings as to when the
original complaint was created, signed, and finalized. If
supported by his findings, he should also make recommendations
regarding the imposition of sanctions.
Based on this, Judge Burns granted in part Cole Haan's motion to
dismiss. The only claim the FAC has adequately pled is Park's
claim under the FAL and UCL based on the shoes he bought being
marked as discounted when in fact they were never sold at the
higher price. No later than April 2, 2019, Park may file a third
amended complaint bringing only this one claim. All other claims
are dismissed without prejudice.
Park has already been given leave to amend once, so it is
questionable whether he could amend successfully to state other
claims or to proceed under other theories even if given another
opportunity. But if he believes he can successfully amend, instead
of filing a third amended complaint, he should file an ex parte
motion for leave to amend, attaching his proposed third amended
complaint as an exhibit. Such a motion must comply fully with
Civil Local Rule 15.1.
A full-text copy of the Court's March 13, 2019 Order is available
at https://is.gd/NApNUs from Leagle.com.
Kevin Park, individually and on behalf of all others similarly
situated, Plaintiff, represented by Alisa A. Martin --
alisa@amartinlaw.com -- Amartin Law, PC & Lindsay Christine David
-- lcdavid@brennanlawgrp.com -- Brennan & David Law Group.
Cole Haan, LLC, a Delaware Limited Liability Company, Defendant,
represented by Stephanie A. Sheridan -- ssheridan@steptoe.com --
Steptoe & Johnson LLP.
COMMONWEALTH HEALTH: OT Premium for Operations Supervisors Sought
-----------------------------------------------------------------
ROBERT SHERIDAN, on behalf of himself and similarly situated
employees, the Plaintiff, v. COMMONWEALTH HEALTH EMERGENCY MEDICAL
SERVICES, the Defendant, Case No. 3:19-cv-00479-RDM (M.D. Pa.,
March 15, 2019), seeks all available relief under the Fair Labor
Standards Act and the Pennsylvania Minimum Wage Act.
According to the complaint, the Plaintiff is employed by the
Defendant as an Operations Supervisor. During the 3-year period
covered by this lawsuit, at least 30 other individuals have been
employed by the Defendant as Operations Supervisors. The Plaintiff
and other Operations Supervisors often work over 40 hours per week.
For example, during many weeks, the Plaintiff is scheduled to work
48 hours and actually works 48 hours or more.
The Defendant, as a matter of corporate policy, does not pay the
Plaintiff and other Operations Supervisors overtime premium
compensation for hours worked over 40 per week. For example, during
weeks in which the Plaintiff is scheduled to work (and actually
works) 48 hours, he does not receive any overtime premium
compensation for his 8 hours of overtime work, the lawsuit says.
The Defendant provides emergency medical services to patients in
and around Northeastern Pennsylvania.[BN]
Attorneys for the Plaintiff:
Peter Winebrake, Esq.
R. Andrew Santillo, Esq.
Mark J. Gottesfeld, Esq.
WINEBRAKE & SANTILLO, LLC
715 Twining Road, Suite 211
Dresher, PA 19025
Telephone: (215) 884-2491
E-mail: pwinebrake@winebrakelaw.com
CONDUENT INC: May 7 Lead Plaintiff Motion Deadline Set
------------------------------------------------------
Kahn Swick & Foti, LLC ("KSF") and KSF partner, former Attorney
General of Louisiana, Charles C. Foti, Jr., remind investors that
they have until May 7, 2019 to file lead plaintiff applications in
a securities class action lawsuit against Conduent, Inc. (NYSE:
CNDT), if they purchased the Company's shares between February 21,
2018 and November 6, 2018 (the "Class Period"). This action is
pending in the United States District Court for the District of New
Jersey.
What You May Do
If you purchased shares of Conduent and would like to discuss your
legal rights and how this case might affect you and your right to
recover for your economic loss, you may, without obligation or cost
to you, contact KSF Managing Partner Lewis Kahn toll-free at
1-877-515-1850 or via email (lewis.kahn@ksfcounsel.com), or visit
https://www.ksfcounsel.com/cases/nyse-cndt/ to learn more. If you
wish to serve as a lead plaintiff in this class action, you must
petition the Court by May 7, 2019.
About the Lawsuit
Conduent and certain of its executives are charged with failing to
disclose material information during the Class Period, violating
federal securities laws.
On November 7, 2018, the Company disclosed negative Q3 and Q4
projected operating results due to "continued suboptimal
performance from an inherited legacy technology vendor…stem[ming]
from the vendor's inability to deliver on service level agreements,
lack of responsiveness to Conduent's needs, and poorly structured
contract which we inherited" Further, an "outdated and historically
under-invested legacy IT infrastructure has caused major
disruptions to our operations and impacted clients and delivery
performance."
On this news, the price of Conduent's shares plummeted.
About Kahn Swick & Foti, LLC
KSF, whose partners include former Louisiana Attorney General
Charles C. Foti, Jr., is a law firm focused on securities,
antitrust and consumer class actions, along with merger &
acquisition and breach of fiduciary litigation against publicly
traded companies on behalf of shareholders. The firm has offices in
New York, California and Louisiana. [GN]
CORBUS PHARMACEUTICAL: Hid Failed Trial Results, Kempf Suit Says
----------------------------------------------------------------
CARMEN KEMPF, INDIVIDUALLY and ON BEHALF OF ALL OTHERS SIMILARLY
SITUATED v. CORBUS PHARMACEUTICAL HOLDINGS, INC., YUVAL COHEN, AND
SEAN MORAN, Case No. 1:19-cv-10457-MBB (D. Mass., March 12, 2019),
alleges that during the Class Period, and unbeknownst to investors,
Corbus made false and misleading statements, and failed to disclose
that Corbus' drug candidate, Lenabasum, had "failed its major
trials in [systemic sclerosis] and [cystic fibrosis]."
"Corbus changed the primary efficacy endpoint of the Lenabasum
study after the Company was unblinded to the results, extending the
efficacy readout to 16 weeks, which was a full 4 weeks after
patients were off the therapy," according to the complaint. The
Plaintiff contends that Corbus reported a one-sided p value, not
the traditional two-sided p value that is normally reported in
clinical trials, in order to conceal the fact that the study
results did not have statistical significance.
Corbus Pharmaceuticals Holdings, Inc., is incorporated in the state
of Delaware and has its headquarters in Boston, Massachusetts. The
Individual Defendants are directors and officers of the Company.
Corbus purports to be a Phase 3 clinical-stage pharmaceutical
company focused on the development and commercialization of novel
therapeutics to treat inflammatory and fibrotic diseases.[BN]
The Plaintiff is represented by:
Jeffrey C. Block, Esq.
Jacob A. Walker, Esq.
Nate Silver, Esq.
BLOCK & LEVITON LLP
155 Federal Street, Suite 400
Boston, MA 02110
Telephone: (617) 398-5600
Facsimile: (617) 507-6020
E-mail: jeff@blockesq.com
jake@blockesq.com
nate@blockesq.com
COVENTBRIDGE USA: Eggnatz's Bid to Certify FLSA Class Denied
------------------------------------------------------------
The Hon. Robert N. Scola, Jr., denies the Plaintiff's Motion for
Conditional Certification in the lawsuit styled Kyle Eggnatz v.
Coventbridge (USA) Inc. d/b/a Coventbridge Group, and others, Case
No. 0:18-cv-61250-RNS (S.D. Fla.).
The Defendants argue, and the Court agrees, that the Plaintiff's
conclusory assertions are insufficient to show that the opt-in
plaintiffs are similarly situated.
Kyle Eggnatz brings this action under the Fair Labor Standards Act
against the Defendants, for Coventbridge's alleged failure to pay
overtime wages. The Plaintiff moved to conditionally certify a
collective action defined as "all Field Investigators in the
Florida region that worked for Defendants at any time between June
5, 2015 and the present."[CC]
CREATIVE SOLUTION: Faces Novel Remodelling Suit over Biz Practice
-----------------------------------------------------------------
A class action complaint has been filed against David Zachary
Neiyer, an individual doing business as Creative Solutions, over
alleged breach of contract, negligence, intentional
misrepresentation, rescission and disgorgement; and unfair business
practices. The case is captioned NOVEL REMODELING, INC., a
California corporation; INNER CITY SKYLINE, INC. a California
corporation; HEAVEN PROPERTIES, a California limited liability
company; GUZAMBAK LLC, a California limited liability company;
DAVID P ARTIEL, an individual; and YONATHAN PARTIEL, an individual,
on behalf of themselves and others similarly situated, Plaintiffs,
DAVID ZACHARY NEIYER, an individual, doing business as CREATIVE
SOLUTIONS; CREATIVE BUSINESS & TAX SOLUTIONS, INC., a California
corporation; and DOES 1 through 10, inclusive, Defendants, Case No.
19VECV00338 (Cal. Super., March 12, 2019).The case is assigned to
Hon. Judge Virginia Keeny.
For over 20 years, Creative Solutions, a Certified Woman Owned
Company, has provided satisfied clients with innovative & creative
promotional products. [BN]
The Plaintiffs are represented by:
Bruce D. Rudman, Esq.
THE LAW OFFICES OF ABDULAZIZ, GROSSBART & RUDMAN
6454 Coldwater Canyon Avenue
North Hollywood, CA 91606 1187
Telephone: (818) 760-2000
Facsimile: (818) 760-3908
E-mail: bdr@agrlaw.com
CSC SERVICEWORKS: Court Narrows Claims in RBB2 Suit
---------------------------------------------------
In the case, RBB2, LLC, a California limited liability company,
individually and on behalf of all others similarly situated,
Plaintiff, v. CSC SERVICEWORKS, INC., a Delaware Corporation
Defendants, Case No. 1:18-cv-00915-LJO-JLT (E.D. Cal.), Judge
Lawrence J. O'Neill of the U.S. District Court for the Eastern
District of California granted in part and denied in part the
Defendant's Motion to Dismiss and Motion to Strike.
In July 2018, the Plaintiff filed a putative class action suit
against the Defendant, alleging claims for breach of contract and
unjust enrichment. The Defendant has been expanding its market
dominance by acquiring commercial laundry and appliance leasing
companies around the country and has eliminated its competition
and, thus, the options available in the market for such services.
Once it had consolidated the market share, and knowing that
landlords lacked alternative laundry service providers, the
Defendant began breaching its contracts with landlords by
instituting and collecting a 9.75% Administrative Fee not provided
for under its contracts.
In May 2017, the Defendant sent a letter to the landlords it
contracts with and announced it was imposing a 9.75% Administrative
Fee which would be deducted from gross revenues. It explained in
its letter that more than half the Administrative Fee covers its
own costs like billing processing, refund processing, website
maintenance, clothing claim processing, and commission check
processing. Although Defendant claims its Administrative Fee
covers necessary costs related to its operation and features new
products and services that benefit landlords, the Plaintiff alleges
it is nothing more than an attempt to withhold contractually
guaranteed revenue from the landlords.
The Plaintiff is a real estate management company which owns and
manages a multi-unit apartment building in Bakersfield, California.
It entered into a long-term contract with the Defendant whereby it
leased its laundry room to the Defendant so that the Defendant
could install its laundry machines and collect money from their
use. The contract, signed in February 2017, allows the Defendant
to rent space in the Plaintiff's apartment complex to install,
operate, and maintain pay-per-use laundry equipment. In return,
the Defendant agreed to pay the Plaintiff rent in the form of
income from the machines after having first deducted refunds,
expenses attributable to vandalism on the equipment, and all
applicable fees and/or taxes, including, but not limited to, sales,
use, excise, personal property or real estate taxes payable by the
Defendant in connection with the use and possession of the Leased
Premises and the operation of the Equipment, an amount equal to:
28% of revenue, paid Monthly.
In May 2017, the Plaintiff received the "landlord letter" from
Defendant regarding the 9.75% Administrative Fee the Defendant
would be deducting from the gross revenues payable to the
Plaintiff. The Defendant also posted a document on its website
entitled "Understanding CSC's Administrative Fee" which explained
59% of the Administrative Fee would relate to charges for process
of billing, refund processing, website maintenance, and clothing
claim processing; 16% of the Administrative Fee would be comprised
of costs associated with taxes such as purchase taxes, sales taxes,
and "VAT taxes"; and 25% of the Administrative Fee would represent
costs associated with processing vandalism cases and related
external security costs and measures.
In July 2018, the Plaintiff filed a putative class action suit on
behalf of itself and all others similarly situated, alleging a
claim for breach of contract and, alternatively, for quasi-contract
seeking restitution and arguing the Administrative Fee was outside
the parties' Agreement -- that its imposition represented a breach
of contract. According to its managing member, William Dinino, the
Plaintiff normally receives a rent check from Defendant via U.S.
mail. In July 2018, the Plaintiff received a check from the
Defendant in the amount of $352.43, and an attachment to the check
stated that it was "payment for period ending May 2018." When
processing the July check, Mr. Dinino attests he thought the
Plaintiff had already been paid for the May 2018 collections
period, but the Defendant had in the past issued additional credits
or adjustments to the account, so receiving a second check was not
Mr. Dinino also thought perhaps the check was mislabeled and was in
fact for a more recent collection period. He decided to cash the
check on July 16, 2018, and then sought an explanation from the
Defendant. After contacting his own attorneys about the check, Mr.
Dinino placed a call to the Defendant's representative on July 25,
2018, and learned the check was purportedly reimbursement for the
Administrative Fee that had previously been withheld from the
Plaintiff's rent income. In its November 2018 Motion to Dismiss,
the Defendant argues, among other things, the Plaintiff's claims
are mooted by accepting the July reimbursement check which was the
amount of the Administrative Fees previously withheld by the
Defendant.
After a stipulated extension to the briefing schedule, the parties'
dispute over the Defendant's Motion to Dismiss was taken under
submission in February 2019. Pending before the Court presently is
the Defendant's Motion to Dismiss the complaint pursuant to Federal
Rules 12(b)(1) and 12(b)(6).
Judge O'Neill granted in part and denied in part the Defendant's
Motion to Dismiss and Motion to Strike. He dismissed the
Plaintiff's claim for unjust enrichment with leave to amend; and
denied in all other respects the Defendant's Motion to Dismiss and
Motion to Strike.
Among other things, the Judge finds that in pleading its
quasi-contract claim, the Plaintiff incorporates by reference all
previous allegations which include the allegation of an express,
enforceable agreement between the parties; this is fatal to the
quasi-contract claim. He says this is not an incurable defect, but
the facts pled to maintain the alternative claim must support that
alternative. The Plaintiff's alternative claim for unjust
enrichment -- which is really a quasi-contract claim for
restitution -- is dismissed with leave to amend. The parties are
reminded this is a very simple and technical pleading defect: by
all appearances, it should not be difficult to cure. As such, the
Court will be disinclined to allow further amendment should the
Plaintiff choose to amend yet fail to heed the Court's discussion
above; equally, the Court will look with disfavor on a second
motion to dismiss on the issue if the amended claim adequately
pleads the facts necessary to support an alternative quasi-contract
claim.
Within seven days from the date of the Order, the Plaintiff may
elect to amend its complaint with respect only to its unjust
enrichment claim. If it fails to amend the complaint within seven
days, the claim for unjust enrichment will be dismissed with
prejudice. The Defendant will file the appropriate responsive
pleading within 21 days from the date of the Order.
A full-text copy of the Court's March 13, 2019 Memorandum Decision
and Order is available at https://is.gd/ommKNU from Leagle.com.
RBB2, LLC, a California limited liability company, individually and
on behalf of all others similarly situated, Plaintiff, represented
by Benjamin H. Richman, Edelson PC, pro hac vice, Todd Michael
Logan -- tlogan@edelson.com -- Edelson PC & Rafey Sarkis Balabanian
-- rbalabanian@edelson.com -- Edelson PC.
CSC Serviceworks, Inc., a Delaware corporation, Defendant,
represented by Paul La Scala -- plascala@shb.com -- Shook Hardy &
Bacon LLP & Paul A. Williams -- pwilliams@shb.com -- Shook Hardy &
Bacon, L.L.P., pro hac vice.
CURO GROUP: Pension Fund Named Lead Plaintiff in Securities Suit
----------------------------------------------------------------
In the case, YELLOWDOG PARTNERS, LP and CARPENTERS PENSION FUND OF
ILLINOIS, individually and on behalf of all others similarly
situated, Plaintiffs, v. CURO GROUP HOLDINGS CORP.; DONALD F.
GAYHARDT; WILLIAM BAKER; and ROGER W. DEAN, Defendants, Case No.
18-2662-JWL (D. Kan.), Judge John W. Lungstrum of the U.S. District
Court for the District of Kansas granted Carpenters Pension Fund of
Illinois' motion for appointment as the Lead Plaintiff.
Yellowdog initiated the action under the federal Securities
Exchange Act of 1934 against Defendant CURO Group Holdings Corp.
and three of its officers. Yellowdog asserts claims on its behalf
and on behalf of a class consisting of all persons who purchased
CURO securities from July 31, 2018, up to and including Oct. 24,
2018.
The matter presently comes before the Court on competing motions
for appointment as the Lead Plaintiff filed by Yellowdog and by
another putative class member, the Fund. The Court conducted a
hearing on the motions on March 8, 2019.
Judge Lungstrum, in accord with the majority of courts, will apply
the last-in-first-out ("LIFO") method of accounting. Under that
method, the Fund has the largest known financial interest in the
litigation. The Movants do not dispute these calculations for
purposes of the Lead Plaintiff determination: Yellowdog suffered a
loss of $375,514 under the FIFO method, but only lost $209,549
under the LIFO method; the Fund lost $301,811 under either method.
A presumption thus arises that the Fund is the most adequate
Plaintiff, and there is no basis to rebut that presumption in the
case. Therefore, he will appoint the Fund as the Lead Plaintiff in
the action.
The Judge has determined that the Fund is the most adequate
pPlaintiff under the PSLRA, and the Fund has selected the firm of
Robbins Geller Rudman & Dowd LLP to represent the class (presumably
with the assistance of Cavanagh & O'Hara, which is also listed on
the Fund's briefs, and Stueve Siegel Hanson LLP, which filed the
briefs as local counsel). Neither Yellowdog nor any other putative
class member has made any argument that the Fund's chosen counsel
is not sufficiently experienced or proficient, or otherwise
suggested that the Fund should not have its counsel approved if
appointed the Lead Plaintiff. The Fund's counsel does indeed have
extensive experience in litigating cases of this kind.
Accordingly, the Judge will approve the Fund's counsel as the Lead
Counsel to represent the putative class of purchasers.
Based on the foregoing, Judge Lungstrum granted the motion by the
Fund for appointment as the Lead Plaintiff, and appointed the Dun
as the Lead Plaintiff in the action. He approved the Fund's
selection of the counsel to represent the putative class. The
Judge denied motion by Yellowdog for appointment as the Lead
Counsel.
A full-text copy of the Court's March 13, 2019 Memorandum and Order
is available at https://is.gd/zlYf0z from Leagle.com.
Yellowdog Partners, LP, individually and on behalf of others
similarly situated, Plaintiff, represented by Ashley Keller --
ack@kellerlenkner.com -- Keller Lenkner LLC, pro hac vice, Larkin
E. Walsh -- lwalsh@midwest-law.com -- Rex A. Sharp, PA, Ryan C.
Hudson -- rhudson@midwest-law.com -- Rex A. Sharp, PA, Seth Meyer
-- sam@kellerlenkner.com -- Keller Lenkner LLC, pro hac vice,
Travis Lenkner -- tdl@kellerlenkner.com -- Keller Lenkner LLC, pro
hac vice & U. Seth Ottensoser -- so@kellerlenkner.com -- Keller
Lenkner LLC, pro hac vice.
Carpenters Pension Fund of Illinois, Plaintiff, represented by
Norman Eli Siegel -- siegel@stuevesiegel.com -- Stueve Siegel
Hanson LLP, Rachel E. Schwartz -- schwartz@stuevesiegel.com --
Stueve Siegel Hanson LLP & Tricia L. McCormick --
JSHAW@BERKOWITZOLIVER.COM -- Robbins Geller Rudman & Dowd, LLP, pro
hac vice.
CURO Group Holdings Corp., Defendant, represented by Anthony J.
Durone -- ADURONE@BERKOWITZOLIVER.COM -- Berkowitz Oliver LLP &
John W. Shaw -- JSHAW@BERKOWITZOLIVER.COM -- Berkowitz Oliver LLP.
Dev Bohn, Movant, represented by Brent John LaPointe --
blapointe@rosenlegal.com -- The Rosen Law Firm, PA.
CVS PHARMACY: Court Grants Summary Judgment Bid in Beardsall Suit
-----------------------------------------------------------------
In the case, JENNIFER BEARDSALL, et al., individually and on behalf
of all others similarly situated, Plaintiffs, v. CVS PHARMACY,
INC.; TARGET CORPORATION; WALGREEN CO.; WAL-MART STORES, INC.; and
FRUIT OF THE EARTH, INC., Defendants, Case No. 16 C 6103 (N.D.
Ill.), Judge John F. Lefkow of the U.S. District Court for the
Northern District of Illinois, Eastern Division, granted the
Defendants' motion for summary judgment.
Beardsall, individually and on behalf of all others similarly
situated, filed suit against CVS Pharmacy, Inc.; Target
Corporation; Walgreen Co.; Wal-Mart Stores, Inc.; and Fruit of the
Earth, Inc. ("FOTE"), alleging state-law consumer protection
violations for misleading labels on several aloe gels manufactured
by FOTE and sold by the other Defendants.
The parties agreed to pursue a bellwether process and complete
discovery only with respect to two products: (1) FOTE's Aloe Vera
100% Gel, and (2) Well at Walgreens Aloe Vera Body Gel. The Court
entered the parties' proposed bellwether schedule and bifurcated
discovery on July 11, 2017.
Defendants FOTE and Walgreens now move to for summary judgment.
The Plaintiffs bring claims under various state consumer protection
statutes. The parties agree that, while differing in certain
respects, all statutes at issue require the Plaintiffs to show that
the relevant labels are likely to deceive a reasonable consumer.
Although their theory of the case has shifted several times, the
Plaintiffs now contend that the FOTE Gel label is misleading in two
ways: (1) by claiming that its product is "100%" and "Pure;" and
(2) by asserting that the "product provides effective relief from
sunburn." Since the Walgreens Gel label does not use the term
100%, the Plaintiffs assert only that the Walgreens label is
misleading because it states that the product "provides powerful
relief for sunburned skin.
Judge Lefkow finds that the descriptions "Aloe Vera 100% Gel*" (on
the front of the FOTE bottle) and "100% Pure Aloe Vera Gel*" (on
the back of the FOTE bottle) are ambiguous. These phrases might be
interpreted as saying that the product is 100% aloe vera and
nothing else. There is no evidence that the aloe in the
Defendants' products is anything other than aloe. Indeed, there is
no scientific cutoff for when a product ceases to be aloe, and
there is no mandatory government standard for the chemical
composition of aloe in cosmetic products. There is no expert
testimony to create an issue of material fact that the aloe in
Defendants' products is actually low quality. There were no
surveys done. The labels do not expressly reference quality. And no
consumers complained directly about "quality."
Had the theory the Plaintiffs expounded in their complaint (that
the finished FOTE Gel and Walgreens Gel "contained no detectible
amount of Aloe vera at all") been consistent with what the parties
uncovered during discovery, this would likely be a very different
case. Under the facts before the Court, however, the FOTE Gel
labeling is not deceptive.
The Plaintiffs also maintain that the Defendants' labels are
misleading because they state that the products provide relief from
sunburn, but with low amounts of acemannan the products do not
produce the therapeutic benefit they purport to provide. There is,
however, no expert testimony about the necessary compounds for
sunburn relief and certainly no evidence to establish that a
certain amount of acemannan is needed to provide such relief.
There is also no evidence that the products were tested as they
relate to sunburn relief and shown to provide no such relief. And
there are no customer complaints indicating that a consumer was
somehow deceived by the product labels as it relates to sunburn
relief. To the contrary, several Plaintiffs testified that the
product did what they expected it to do.
Had the Plaintiffs offered an expert to opine on the efficacy of
the products as it relates to sunburn or otherwise demonstrated
that the products do not provide relief from sunburn, the Judge
finds that perhaps the result would be different. As that evidence
is not before him, no reasonable consumer would be deceived by
product labels claiming to provide sunburn relief when there is no
evidence that the products do not in fact provide such relief.
For the foregoing reasons, Judge Lefkow granted the Defendants'
motion for summary judgment. He denied sa moot (i) the Plaintiffs'
motion for class certification and (ii) the Defendants' motion to
exclude expert testimony of Steven Gaskin and Colin Weir. A status
hearing is set for April 3, 2019 at 9:30 a.m.
A full-text copy of the Court's March 13, 2019 Opinion and Order is
available at https://is.gd/4ZVMma from Leagle.com.
Susan Nazari, individually and on behalf of all others similarly
situated, Nancy Reeves, individually and on behalf of all others
similarly situated, Jennifer Carlsson, individually and on behalf
of all others similarly situated, Skye Krejckant, individually and
on behalf of all others similarly situated, Kathy Mellody,
individually and on behalf of all others similarly situated, Amber
Wimberly, individually and on behalf of all others similarly
situated, Amy Connor, individually and on behalf of all others
similarly situated, LaTanya James, individually and on behalf of
all others similarly situated, Shelley Waitzman, individually and
on behalf of all others similarly situated, Daniel Brown,
individually and on behalf of all others similarly situated,
Alexandra Groffsky, individually and on behalf of all others
similarly situated, Emma Groffsky, individually and on behalf of
all others similarly situated, Dana Phillips, individually and on
behalf of all others similarly situated, Michelle Jessop,
individually and on behalf of all others similarly situated, Raelee
Dallaque, individually and on behalf of all others similarly
situated & Phyllis Czapski, individually and on behalf of all
others similarly situated, Plaintiffs, represented by Jeffrey Alan
Berman -- jberman@andersonwanca.com -- Anderson Wanca, Jonathan
Shub -- jshub@kohnswift.com -- Kohn, Swift & Graf, P.C., Adam
Arthur Edwards -- adam@gregcolemanlaw.com -- Greg Coleman Law PC,
Justin G. Day, Greg Coleman Law PC, pro hac vice, Katlyn Christine
Mathy, Lite Depalma Greenberg, Llc, Katrina Carroll, Lite DePalma
Greenberg LLC, Kyle Alan Shamberg, Lite DePalma Greenberg, LLC,
Mark E. Silvey, Greg Coleman Law PC, pro hac vice, Michael F. Ram,
Robins Kaplan LLP, pro hac vice, Patrick S. Almonrode, JTB Law
Group LLC, pro hac vice & Susan S. Brown --
susan@susanbrownlegal.com -- Ram, Olson, Cereghino & Kopczynski
LLP, pro hac vice.
Jamilla Wang, Skye Doucette, Megan Norsworthy, Christopher Draus,
Deborah Cartnick, Thomas Ramon, Jr., Autumn Dean, Martina Osley,
Deborah Ostrander, Joy Judge & Joyce Ivy, Plaintiffs, represented
by Adam Arthur Edwards, Greg Coleman Law PC, Justin G. Day, Greg
Coleman Law PC, pro hac vice, Katlyn Christine Mathy, Lite Depalma
Greenberg, Llc, Mark E. Silvey, Greg Coleman Law PC, pro hac vice &
Katrina Carroll, Lite DePalma Greenberg LLC.
Jennifer Beardsall, Plaintiff, represented by Adam Arthur Edwards,
Greg Coleman Law PC, Jason J. Thompso, Sommers Schwartz, Pc, Justin
G. Day, Greg Coleman Law PC, pro hac vice, Katlyn Christine Mathy,
Lite Depalma Greenberg, Llc, Mark E. Silvey, Greg Coleman Law PC,
pro hac vice & Katrina Carroll, Lite DePalma Greenberg LLC.
Jennifer M Parrott, Plaintiff, represented by Adam Arthur Edwards,
Greg Coleman Law PC, Justin G. Day, Greg Coleman Law PC, pro hac
vice, Katlyn Christine Mathy, Lite Depalma Greenberg, Llc & Mark E.
Silvey, Greg Coleman Law PC, pro hac vice.
CVS Pharmacy, Inc., Target Corporation, doing business as Target,
Walgreens Boots Alliance, Inc., doing business as Walgreen Co,
Wal-Mart Stores, Inc. & Fruit of the Earth, Inc., Defendants,
represented by Elizabeth M. Chiarello -- ECHIARELLO@SIDLEY.COM --
Sidley Austin LLP, Caitlin Maly -- CMALY@SIDLEY.COM -- Sidley
Austin Llp & Eric Stephen Mattson -- EMATTSON@SIDLEY.COM -- Sidley
Austin LLP.
Walgreen Co., Defendant, represented by Elizabeth M. Chiarello,
Sidley Austin LLP & Eric Stephen Mattson, Sidley Austin LLP.
Family Dollar, Inc., Respondent, represented by Molly K. McGinley
-- molly.mcginley@klgates.com -- K&L Gates LLP.
CVS PHARMACY: Wins Summary Judgment in Beardsall Consumer Suit
--------------------------------------------------------------
The Hon. Joan H. Lefkow grants the Defendants' motion for summary
judgment in the lawsuit titled JENNIFER BEARDSALL, et al.,
individually and on behalf of all others similarly situated v. CVS
PHARMACY, INC.; TARGET CORPORATION; WALGREEN CO.; WAL-MART STORES,
INC.; and FRUIT OF THE EARTH, INC., Case No. 1:16-cv-06103 (N.D.
Ill.).
The Plaintiffs' motion for class certification and the Defendants'
motion to exclude expert testimony of Steven Gaskin and Colin Weir
are denied as moot. A status hearing is set for April 3, 2019, at
9:30 a.m.
Jennifer Beardsall filed suit against CVS Pharmacy, Inc., et al.,
alleging state-law consumer protection violations for misleading
labels on several aloe gels manufactured by Defendant Fruit of the
Earth, Inc. (FOTE) and sold by the other Defendants. The parties
agreed to pursue a bellwether process and complete discovery only
with respect to two products: (1) FOTE's Aloe Vera 100% Gel (FOTE
Gel), and (2) Well at Walgreens Aloe Vera Body Gel (Walgreens Gel)
According to Court's Opinion and Order, under the facts before the
Court, the FOTE Gel labeling is not deceptive. There is no
evidence that the aloe in the Defendants' products is anything
other than aloe. The Court also disagrees with the Plaintiffs'
assertion that the Defendants' labels are misleading.
"Had plaintiffs offered an expert to opine on the efficacy of the
products as it relates to sunburn or otherwise demonstrated that
the products do not provide relief from sunburn, perhaps the result
would be different. As that evidence is not before the court, no
reasonable consumer would be deceived by product labels claiming to
provide sunburn relief when there is no evidence that the products
do not in fact provide such relief," rules Judge Lefkow.[CC]
DANONE US: Marshall Seeks to Stop Cocomilk Product's Deceptive Ad
-----------------------------------------------------------------
DONOVAN MARSHALL, on behalf of himself, all others similarly
situated, and the general public v. DANONE US, INC., Case No.
3:19-cv-01332-RS (N.D. Cal., March 12, 2019), seeks an order
compelling the Defendant to cease marketing its Silk Coconutmilk
product using deceptive claims.
Despite the compelling evidence of the harmful effects of coconut
oil on cholesterol levels and cardiovascular health, Danone
misleadingly labels Silk Coconutmilk (the Product"), which is
primarily coconut oil and water, with claims that it is cholesterol
free, Mr. Marshall contends. He asserts that because cholesterol
free claims are likely to mislead consumers to believe that
products bearing such statements won't detriment their cholesterol
levels or cardiovascular health, the U.S. Food and Drug
Administration specifically prohibits such labeling representations
on products--like Silk Coconutmilk--that are high in saturated
fat.
Danone US, Inc., is a Delaware Corporation, with its principal
place of business in White Plains, New York. Danone markets,
distributes, and sells the Silk Coconutmilk Product.[BN]
The Plaintiff is represented by:
Paul K. Joseph, Esq.
THE LAW OFFICE OF PAUL K. JOSEPH, PC
4125 W. Pt. Loma Blvd., No. 309
San Diego, CA 92110
Telephone: (619) 767-0356
Facsimile: (619) 331-2943
E-mail: paul@pauljosephlaw.com
DEFENDERS INC: Kennedy Sues Over Unsolicited Text Messages
----------------------------------------------------------
Kathleen Kennedy, individually, and on behalf of all others
similarly situated, Plaintiff, v. Defenders, Inc., an Indiana
corporation, Defendant, Case No. 8:19-cv-00678 (M.D. Fla., March
20, 2019) seeks to stop Defenders violation of the Telephone
Consumer Protection Act by sending unsolicited, autodialed text
messages to consumers without their consent, and to otherwise
obtain injunctive and monetary relief for all persons injured by
Defenders' conduct.
In order to sustain its significant size and growth plan, Defenders
uses many marketing methods including telemarketing. Part of
Defenders' telemarketing plan includes sending unsolicited text
messages to try to drum up new business. Defenders uses an
autodialer to send out these text messages even when it does not
have consent from the text recipient, says the complaint.
Plaintiff Kennedy is a Seminole, Florida resident.
Defenders is an Indiana corporation headquartered in Indianapolis,
Indiana. Defendant conducts business throughout this District, the
State of Florida, and throughout the United States.[BN]
The Plaintiff is represented by:
Avi R. Kaufman, Esq.
Kaufman P.A.
400 NW 26th Street
Miami, FL 33127
Phone: (305) 469-5881
Email: kaufman@kaufmanpa.com
- and -
Stefan Coleman, Esq.
Law Offices of Stefan Coleman, P.A.
201 S. Biscayne Blvd, 28th Floor
Miami, FL 33131
Phone: (877) 333-9427
Email: law@stefancoleman.com
DENKA PERFORMANCE: Court Grants Bids to Dismiss Butler Suit
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Judge Martin L.C. Feldman of the U.S. District Court for the
Eastern District of Louisiana granted the four motions to dismiss
the case, JUANEA L. BUTLER, v. DENKA PERFORMANCE ELASTOMER LLC, ET
AL., SECTION "F," Civil Action No. 18-6685 (E.D. La.), under Rule
12 (b) (6) by the State of Louisiana through the Department of
Environmental Quality ("DEQ"), the State of Louisiana through the
Department of Health ("DOH"), Denka, and E.I. DuPont de Nemours and
Co.
The environmental tort litigation arises from the production of
neoprene at the Pontchartrain Works Facility ("PWF") in St. John
the Baptist Parish. Neoprene production allegedly exposes those
living in the vicinity of the PWF to concentrated levels of
chloroprene well above the upper limit of acceptable risk, and may
result in a risk of cancer more than 800 times the national
average.
Plaintiff Butler has lived in LaPlace, Louisiana since 1998. She
sued the DOH, the DEQ, Denka, and DuPont, seeking class
certification, damages, and injunctive relief in the form of
abatement of chloroprene releases from her industrial neighbor, the
PWF.
Effective Nov. 1, 2015, DuPont sold the PWF to Denka, but DuPont
retained ownership of the land underlying the facility. In
December 2015, the EPA released a screening-level National Air
Toxics Assessment ("NATA"), and classified chloroprene as a likely
human carcinogen. EPA's NATA evaluation suggested an acceptable
risk exposure threshold for chloroprene: 0.2 µg/m3; that is,
chloroprene emissions should stay below .2 micrograms per cubic
meter2 to comply with the limit of acceptable risk threshold (which
is a risk of 100 in one million people).
The EPA held its first Parish community meeting to discuss the
potential chloroprene emission issues on July 7, 2016. At that
meeting, a DOH representative advised that children should not
breathe chloroprene. In August of 2016, Denka began 24-hour air
sampling every six days. Samples collected at five sampling sites
are and continue to exceed the 0.2 µg/m3 threshold. According to
Denka's own sampling numbers for chloroprene concentrations, the
average chloroprene concentration across all sampling sites from
August 2016 to March 2017 has ranged from 4.08 µg/m3 to 6.65
µg/m3.
The EPA has noted that, in addition to the high risk of cancer from
exposure to chloroprene, symptoms include headache, irritability,
dizziness, insomnia, fatigue, respiratory irritation, cardiac
palpitations, chest pains, nausea, gastrointestinal disorders,
dermatitis, temporary hair loss, conjunctivitis, and corneal
necrosis. It has further detailed that acute exposure may: damage
the liver, kidneys, and lungs; affect the circulatory system and
immune system; depress the central nervous system; irritate the
skin and mucous membranes; and cause dermatitis and respiratory
difficulties in humans.
On Oct. 7, 2016, Denka submitted modeling results for chloroprene
concentrations surrounding the PWF to the DEQ for the period of
2011 through 2015, showing concentrations well above the 0.2 µg/m3
threshold. At a meeting on Dec. 8, 2016, DEQ Secretary Chuck Brown
dismissed those expressing concern about the chloroprene
concentrations as "fearmongerers" and said "forget about
0.2µg/m3."
The EPA's National Enforcement Investigation Center ("NEIC")
conducted a Clean Air Act ("CAA") inspection of the Pontchartrain
Works facility in June 2016. The NEIC inspection report revealed
various areas of non-compliance by both DuPont and Denka in their
operation of the facility, including failure to adhere to
monitoring, recordkeeping, and reporting requirements for the
chloroprene vent condenser; failure to replace leaking valves;
failure to include appropriate emissions factors in air permit
application materials; and failure to institute appropriate
emissions controls for the chloroprene Group I storage tank.
In her original and amended class action petition, Ms. Butler
alleges that DuPont and Denka have and continue to emit chloroprene
at levels resulting in concentrations exceeding the upper limit of
acceptable risk. The plaintiff further alleges that DEQ and DOH
failed to warn the plaintiff and her community about chloroprene
exposure. She alleges that due to her exposure to the chloroprene
emissions, she has experienced symptoms attributable to exposure of
said chemical.
Since April 2012 until current date, the Plaintiff has continually
sought medical attention for the following conditions: acute
bronchitis; coughing; throat irritation; redness and swelling;
nasal blockage, congestion, and sneezing; sinusitis and nasal
polyps; exacerbation of pre-existing asthma; shortness of breath;
wheezing; rhinosinusitis; thyroid enlargement; cardiac problems;
nausea; vomiting; headaches; fatigue; epistaxis (nose bleeds);
anxiety; depression; insomnia; and temporary hair loss.
Seemingly at random, the Plaintiff invokes as causes of action
general Louisiana state constitutional provisions. She seeks
injunctive relief in the form of abatement of chloroprene releases
to "comply" with the EPA's suggested 0.2 µg/m3 threshold; damages
for deprivation of enjoyment of life; damages for medical expenses;
damages for loss of wages; damages for pain and suffering; punitive
damages; and additional damages including medical monitoring to the
extent personal injury claims become mature.
Denka and DuPont jointly removed the lawsuit, invoking the Court's
diversity jurisdiction under the Class Action Fairness Act
("CAFA"). The Court denied the plaintiff's motion to remand.
DuPont, Denka, DEQ, and DOH now move to dismiss the Plaintiff's
claims.
DOH, DuPont, and Denka move to dismiss the plaintiff's tort claims
on prescription grounds. Based on the Plaintiff's allegations, any
tort claims against DOH and DuPont have prescribed and, thus, their
motions to dismiss are granted.
Turning to DEQ's submission that the Plaintiff's claims against it
are not viable because they concern regulatory, not civil, matters,
the Judge finds that the affirmative duty to comply with the
strategy and to provide DEQ with monitoring reports lies with the
facility and permit holder. And, again, the Plaintiff wholly
ignores the limited function of judicial review and her limited
remedy in this regulatory realm. She fails to plead any facts that
if true entitle her to relief from DEQ. DEQ's motion to dismiss
must be granted.
The Judge now turns to Denka's remaining submission that the
Plaintiff still fails to plead a plausible claim for relief. He
finds that while the Plaintiff's petition contains some factual
allegations, the narrative is nothing more than an unadorned, the
defendant-unlawfully-harmed-me accusation. Subsequent filings to
clarify the Plaintiff's causes of action serve only to show the
lack of clarity and ambiguity contained in the petition.
Turning briefly to address the distinct causes of action the
Plaintiff now purports to allege, the Judge finds that (i) without
allegations suggesting the source of an enforceable duty, the
Plaintiff is unable to plead a plausible claim for negligence; (ii)
the Plaintiff offers up no case literature that supports pursuit of
a battery cause of action; and (iii) the Plaintiff fails to allege
what "ruin, vice, or defect" created an unreasonable risk of harm.
Simply listing documents and repeating allegations of what Denka
should have known is not sufficient for purposes of a custodial
liability claim under article 2317.
Accordingly, for the foregoing reasons, Judge Feldman granted the
Defendants' motions to dismiss. The Plaintiff's claims are
dismissed with the proviso that there is pending before Chief
Magistrate Judge Roby a contested motion for leave to file second
amended class action petition, and the Court does not purport to
interfere with the magistrate judge's proceedings on that remaining
motion.
A full-text copy of the Court's March 13, 2019 Order and Reasons is
available at https://is.gd/lCexOg from Leagle.com.
Juanea L Butler, Individually and as representative of all others
similarly situated, Plaintiff, represented by Danny Dustin Russell
-- danny@dannyrusselllaw.com -- Russell Law Firm, LLC.
Denka Performance Elastomer LLC, Defendant, represented by James
Conner Percy -- jpercy@joneswalker.com -- Jones Walker, Brett S.
Venn -- bvenn@joneswalker.com -- Jones Walker, Justin J. Marocco --
jmarocco@joneswalker.com -- Jones Walker, Michael A. Chernekoff --
mchernekoff@joneswalker.com -- Jones Walker & Michael R. Rhea --
mrhea@joneswalker.com -- Jones Walker.
E.I. DuPont de Nemours and Company, Defendant, represented by
Deborah DeRoche Kuchler -- dkuchler@kuchlerpolk.com -- Kuchler
Polk
Weiner, LLC, Bradley H. Weidenhammer --
bradley.weidenhammer@kirkland.com -- Kirkland & Ellis, LLP, pro hac
vice, Joshua Doguet -- jdoguet@kuchlerpolk.com -- Kuchler Polk
Weiner, LLC, Kaitlyn L. Coverstone, Kirkland & Ellis, LLP, pro hac
vice, Kevin T. Van Wart -- kevin.vanwart@kirkland.com -- Kirkland &
Ellis, LLP, pro hac vice, Rebecca C. Fitzpatrick --
rebecca.fitzpatrick@kirkland.com -- Kirkland & Ellis, LLP, pro hac
vice, Sarah E. Iiams -- siiams@kuchlerpolk.com -- Kuchler Polk
Schell Weiner & Richeson, L.L.C. & Stanley M. Wash --
stan.wash@kirkland.com -- Kirkland & Ellis, LLP, pro hac vice.
Louisiana State, Through the Department of Environmental Quality,
Defendant, represented by Lawrence Edward Marino, Oats & Marino &
Patrick B. McIntire, Oats & Marino.
Louisiana State, Through the Department of Health; Incorrectly
named as Louisiana State Through the Department of Health and
Hospitals, Defendant, represented by Timothy Wayne Hardy, Roedel,
Parsons, Koch, Blache, Balhoff & McCollister, Christina Berthelot
Peck, Roedel, Parsons, Koch, Blache, Balhoff & McCollister &
Willard L. West, Roedel, Parsons, Koch, Blache, Balhoff &
McCollister.
DENTSPLY SIRONA: Asks Court to Stay Boynton Beach Employees' Suit
-----------------------------------------------------------------
Dentsply Sirona Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 8, 2019, for the
fiscal year ended December 31, 2018, that the company has asked the
court to stay the class action lawsuit filed by Boynton Beach
Employees' Pension Plan pending final disposition of the
consolidated Castronovo and Golombeck suit.
On December 19, 2018, Boynton Beach Employees' Pension Plan filed a
putative class action in the U.S. District Court for the Eastern
District of New York, alleging that the Company, certain of its
present and former officers and directors, and former officers and
directors of Sirona violated U.S. securities laws (the "Federal
Class Action").
The plaintiff alleges the same claims as those asserted in the
State Court Class Action, relating to the alleged material
misrepresentations and omissions of required information in the
Registration Statement.
In addition, the plaintiff alleges that the defendants made false
and misleading statements in quarterly and annual reports and other
public statements between February 20, 2014, and August 7, 2018.
The plaintiff asserts claims on behalf of a putative class
consisting of (a) all purchasers of the Company's stock during the
period February 20, 2014 through August 7, 2018, (b) former
shareholders of Sirona who exchanged their shares of Sirona stock
for shares of the Company's stock in the Merger, and (c) holders of
the Company's shares who held shares as of the record date of
December 2, 2015 and were entitled to vote with respect to the
Merger.
Motions for appointment of lead plaintiff and lead counsel were
filed on February 19, 2019.
On January 25, 2019, defendants moved to stay all proceedings in
the State Court Class Action pending final disposition of the
Federal Class Action.
Dentsply Sirona said, "The Company intends to defend itself
vigorously in both actions."
Dentsply Sirona Inc. designs, develops, manufactures, and markets
various dental and oral health products, and other consumable
healthcare products primarily for the professional dental market
worldwide. The company operates in two segments, Technologies &
Equipment; and Consumables. The company was formerly known as
DENTSPLY International Inc. and changed its name to DENTSPLY SIRONA
Inc. in February 2016. DENTSPLY SIRONA Inc. was founded in 1899 and
is headquartered in York, Pennsylvania.
DENTSPLY SIRONA: Bid to Dismiss Consolidated Suit in NY Pending
---------------------------------------------------------------
Dentsply Sirona Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 8, 2019, for the
fiscal year ended December 31, 2018, that a motion to dismiss has
been pending in the consolidated Castronovo and Golombeck suit.
On June 7, 2018, and August 9, 2018, John Castronovo and Irving
Golombeck, respectively, filed substantially identical putative
class action suits in the Supreme Court of the State of New York,
County of New York claiming that the Company, certain of its
present and former officers and directors, and former officers and
directors of Sirona violated U.S. securities laws (together, the
"State Court Class Action").
The plaintiffs allege that the registration statement/joint proxy
statement filed with the SEC on December 4, 2015 (the "Registration
Statement") in connection with the Merger contained material
misrepresentations and omitted required information by failing to
disclose, among other things, that a distributor had allegedly
purchased excessive inventory of legacy Sirona products and that
three distributors of the Company's and Sirona's products and
equipment had allegedly been engaging in anticompetitive conduct.
The plaintiffs assert these claims on behalf of a putative class of
former shareholders of Sirona who exchanged their shares of Sirona
stock for shares of the Company's stock in the Merger. On September
19, 2018, the Court consolidated the two actions.
On October 9, 2018, defendants filed a motion to stay discovery
pending determination of their motion to dismiss. Plaintiffs filed
an amended complaint on November 2, 2018 and defendants moved to
dismiss the amended complaint on December 17, 2018. Oral argument
on the motion to stay discovery took place on January 2, 2019.
Plaintiffs filed their opposition to the motion to dismiss on
January 31, 2019, and defendants' reply in further support was
filed on March 1, 2019.
Dentsply Sirona Inc. designs, develops, manufactures, and markets
various dental and oral health products, and other consumable
healthcare products primarily for the professional dental market
worldwide. The company operates in two segments, Technologies &
Equipment; and Consumables. The company was formerly known as
DENTSPLY International Inc. and changed its name to DENTSPLY SIRONA
Inc. in February 2016. DENTSPLY SIRONA Inc. was founded in 1899 and
is headquartered in York, Pennsylvania.
DENTSPLY SIRONA: Olivares Suit v. Futuredontics Ongoing
-------------------------------------------------------
Dentsply Sirona Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 8, 2019, for the
fiscal year ended December 31, 2018, that Futuredontics, Inc.
continues to defend a class action lawsuit initiated by Henry
Olivares.
On January 25, 2018, Futuredontics, Inc. received service of a
purported class action lawsuit brought by Henry Olivares and other
similarly situated individuals in the Superior Court of the State
of California for the County of Los Angeles.
In January 2019, an amended complaint was filed adding another
named plaintiff, Rachael Clarke, and various claims. The plaintiff
class alleges several violations of the California wage and hours
laws, including, but not limited to, failure to provide rest and
meal breaks and the failure pay overtime.
The parties have engaged in written and other discovery. The
Company continues to vigorously defend against this matter.
On February 5, 2019, Plaintiff Calethia Holt (represented by the
same counsel as Mr. Olivares and Ms. Clarke) filed a separate
representative action in Los Angeles Superior Court alleging a
single violation of the Private Attorneys' General Act that is
based on the same underlying claims as the Olivares/Clarke lawsuit.
The Company has not yet been served in connection with this
action.
Dentsply Sirona Inc. designs, develops, manufactures, and markets
various dental and oral health products, and other consumable
healthcare products primarily for the professional dental market
worldwide. The company operates in two segments, Technologies &
Equipment; and Consumables. The company was formerly known as
DENTSPLY International Inc. and changed its name to DENTSPLY SIRONA
Inc. in February 2016. DENTSPLY SIRONA Inc. was founded in 1899 and
is headquartered in York, Pennsylvania.
DEVRY UNIVERSITY: Judge Pulls Plug on Ex-Students' Class Action
---------------------------------------------------------------
Scott Holland, writing for Cook County Record, reports that a
federal judge has again dismissed a class action that former DeVry
University students brought against the school, claiming they were
misled by ads for the school which, they said, promised them jobs
related to their degrees after they graduated.
The October 2016 lawsuit from named plaintiffs Debbie Petrizzo of
New York; Renee H. Polly and Brandy Van Buren, both of Missouri;
Melissa Lotzman of Colorado; Jamison Purry of Oregon; and Cheryl
Costello of Kansas alleged DeVry violated consumer protection laws
in Illinois and five other states.
The graduates said they were attracted to DeVry by the school's
claim that, since 1975, about 90 percent of graduates land "careers
in their field within six months of graduation," but noted none of
them was able to secure employment within that period.
In an opinion issued Feb. 13, Judge Manish Shah -- who earlier
dismissed the initial version of complaint -- noted that as the
result of a settlement with the Federal Trade Commission, DeVry had
to stop using the 90 percent figure in advertising campaigns as of
December 2016, and the following April the school lowered tuition
for Tech Path associates and bachelor's degree programs from $609
per credit hour to $487.
However, Shah said he doesn't agree with the plaintiffs' position
that the tuition decrease reflects the true value of the education
they'd already completed.
"That number would require further factual development to address
things like DeVry's points about economic factors and the passage
of time and probably expert testimony, too," Shah wrote.
"Plaintiffs cannot rely on a price-inflation theory to prove actual
damages in consumer fraud claims. Instead, they must prove that the
misrepresentations caused each individual plaintiff to pay more."
He further said, while the plaintiffs might have a path to showing
they were damaged, the complaint fails to adequately allege fraud.
He agreed with DeVry's position the graduates weren't specific
enough about which marketing materials they saw, and where they saw
them. Plaintiffs reported encountering different percentages in
various settings and didn't acknowledge any "asterisks, footnotes
or other explanation," undercutting uniformity requirements.
"If there were only one DeVry ad or all DeVry ads had exactly the
same 90 percent representation, then perhaps what plaintiffs have
alleged would be sufficient," Shah wrote. "DeVry would know the
wording of the representation made to plaintiffs along with the
asterisks and explanations that came with it. But the complaint
shows that the representations varied."
Shah also said the plaintiffs didn't adequately show how DeVry's
statements were false, but instead relied "on information and
belief," a path only available to plaintiffs for whom the
underlying facts are inaccessible, or if the plaintiff provides
grounds for suspicions.
"The grounds for plaintiffs' suspicions come entirely from others'
lawsuits against DeVry,
Shah wrote. "Untested allegations made by the FTC, Department of
Education, and attorneys general of Massachusetts and New York and
confidential witness statements made in a DeVry securities class
action."
Shah said the failure of the fraud claims similarly undercuts
unjust enrichment allegations. He also denied the plaintiffs a
chance to amend the complaint a second time, because they didn't
correct the deficiencies he identified in the initial filing.
DeVry's motion to strike class allegations was terminated as moot.
Plaintiffs have been represented by attorneys with the firms of
Wolf, Haldenstein, Adler, Freeman & Herz, of New York and Chicago,
and Gainey McKenna & Egleston, of New York and Paramus, N.J.
DeVry has been defended by the firms of Steptoe & Johnson LLC, of
Chicago, and Polsinelli P.C., of Chicago. [GN]
DIXIE GROUP: Final Fairness Hearing in Garcia Set for April 12
--------------------------------------------------------------
The Dixie Group, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 8, 2019, for the
fiscal year ended December 29, 2018, that a final fairness hearing
in the case, Carlos Garcia v. Fabrica International, Inc. et al.,
is scheduled for April 12, 2019.
On November 16, 2018 the Superior Court of the State of California
granted preliminary approval of a class action settlement in the
matter of Carlos Garcia v. Fabrica International, Inc. et al Orange
County Superior Court Case No. 30-2017-00949461-CU-OE-CXC.
The court further approved the procedures for Settlement Class
Members to opt-out of or object to the Settlement. The terms of the
settlement provide that Fabrica, a wholly owned subsidiary of the
Company, has agreed to pay $1,514 (the "Gross Settlement Amount")
to fully resolve all claims in the Lawsuit, including payments to
Settlement Class Members, Class Counsel's attorneys' fees and
expenses, settlement administration costs, and the Class
Representative’s Service Award.
The amount of the proposed settlement was recorded during the
quarter ended June 30, 2018. The deadline for class members to
opt-out was February 1, 2019.
The deadline for the plaintiff to file a motion for final approval
of the class action settlement is March 29, 2019. The final
fairness hearing is scheduled for April 12, 2019.
The Dixie Group, Inc. manufactures, markets, and sells
floorcovering products for residential and commercial applications
primarily in the United States. The company was founded in 1920 and
is based in Dalton, Georgia.
DOS REALES: Olivera Suit Settlement Gets Final Court Approval
-------------------------------------------------------------
U.S. Magistrate Judge K. Gary Sebelius grants the Plaintiffs'
Unopposed Motion for Final Class Certification and Settlement
Approval in the lawsuit entitled ANATOLIO PENA OLIVERA and MARIA
FERNANDA MARTINEZ Individually and on behalf of all others
similarly situated v. DOS REALES, INC. and ALVARO QUEZADA, Case No.
2:17-cv-02203-KGS (D. Kan.).
The Plaintiffs have sued Dos Reales, Inc. and Alvaro Quezada to
recover unpaid earned overtime wages and attorney fees under the
Fair Labor Standards Act. The Court conditionally certified this
case as an FLSA collective action on October 11, 2018. The period
for class members to opt into this suit closed on Feb. 19, 2019. In
addition to the two representative plaintiffs, two other
individuals have opted in.
As stated in the settlement agreement, which the Court has now
approved, within three business days from the date of this order,
the parties shall file a joint stipulation of dismissal.
The settlement provides that the Plaintiffs will receive 1.5 times
their overtime wages due without any additional delay or disruption
while keeping attorney fees lower than they would be if the
Plaintiffs litigated this case to trial.
The Plaintiffs' counsel requests attorney fees in the amount of
$18,333.[CC]
EL POLLO LOCO: Settlement Reached in Turocy Case, Court Stays Suit
------------------------------------------------------------------
El Pollo Loco Holdings, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 8, 2019,
for the fiscal year ended December 31, 2018, that a settlement has
been reached in "Turocy, et al." suit and the Court ordered that
all proceedings in the action be stayed until April 3, 2019, on or
before which the parties are to file a Stipulation of Settlement
and a motion for preliminary approval of the settlement.
Daniel Turocy, et al. v. El Pollo Loco Holdings, Inc., et al. (Case
No. 8:15-cv-01343) was filed in the United States District Court
for the Central District of California on August 24, 2015, and Ron
Huston, et al. v. El Pollo Loco Holdings, Inc., et al. (Case No.
8:15-cv-01710) was filed in the United States District Court for
the Central District of California on October 22, 2015.
The two lawsuits have been consolidated, with co-lead plaintiffs
and class counsel. A consolidated complaint was filed on January
29, 2016, on behalf of co-lead plaintiffs and others similarly
situated, alleging violations of federal securities laws in
connection with Holdings common stock purchased or otherwise
acquired and the purchase of call options or the sale of put
options, between May 1, 2015 and August 13, 2015 (the "Class
Period").
The named defendants are Holdings; Stephen J. Sather, Laurance
Roberts, and Edward J. Valle (collectively, the "Individual
Defendants"); and Trimaran Pollo Partners, LLC, Trimaran Capital
Partners, and Freeman Spogli & Co. (collectively, the "Controlling
Shareholder Defendants").
Among other things, Plaintiffs allege that, in 2014 and early 2015,
Holdings suffered losses due to rising labor costs in California
and, in an attempt to mitigate the effects of such rising costs,
removed a $5 value option from the Company's menu, which resulted
in a decrease in traffic from value-conscious consumers. Plaintiffs
further allege that during the Class Period, Holdings and the
Individual Defendants made a series of materially false and
misleading statements that concealed the effect that these factors
were having on store sales growth, resulting in Holdings stock
continuing to be traded at artificially inflated prices.
As a result, Plaintiffs and other members of the putative class
allegedly suffered damages in connection with their purchase of
Holdings' stock during the Class Period. In addition, Plaintiffs
allege that the Individual Defendants and Controlling Shareholder
Defendants had direct involvement in, and responsibility over, the
operations of Holdings, and are presumed to have had, among other
things, the power to control or influence the transactions giving
rise to the alleged securities law violations.
In both cases, Plaintiffs seek an unspecified amount of damages, as
well as costs and expenses (including attorneys' fees).
On July 25, 2016, the Court issued an order granting, without
prejudice, Defendants' Motion to Dismiss plaintiff's complaint for
failure to state a claim. Plaintiffs were granted leave to amend
their complaint, and filed an amended complaint on August 22, 2016.
Defendants moved to dismiss the amended complaint, and on March 20,
2017, the Court dismissed the amended complaint and granted
Plaintiffs leave to file another amended complaint. Plaintiffs
filed another amended complaint on April 17, 2017.
Defendants filed a motion to dismiss the amended complaint on or
about May 17, 2017. The Court denied Defendants' motion to dismiss
the third amended complaint on August 4, 2017. On December 8, 2017,
Plaintiffs filed a motion for class certification, and on July 3,
2018, the Court granted Plaintiffs' motion and certified a class as
to all of Plaintiffs' claims. Defendants filed a petition for
appellate review of a portion of the Court's July 3, 2018 class
certification order. On October 19, 2018 the Ninth Circuit Court of
Appeals denied the petition.
On January 23, 2019, the parties filed a Notice of Settlement and
Joint Request for Order to Stay Proceedings, stating the parties
have reached an agreement in principle to settle the claims and
allegations in the action and are negotiating the terms of a
Stipulation of Settlement.
On January 24, 2019, the Court ordered that all proceedings in the
action be stayed until April 3, 2019, on or before which the
parties are to file a Stipulation of Settlement and a motion for
preliminary approval of the settlement. Defendants maintain that
the Plaintiffs' claims are without merit, and have entered into the
settlement to eliminate the uncertainties, burden and expense of
further protracted litigation.
El Pollo Loco said, "A $20.0 million accrual of an expected
settlement amount related to this matter was recorded as of
December 26, 2018."
El Pollo Loco Holdings, Inc., through its subsidiary El Pollo Loco,
Inc., develops, franchises, licenses, and operates quick-service
restaurants under the El Pollo Loco name. The company was formerly
known as Chicken Acquisition Corp. and changed its name to El Pollo
Loco Holdings, Inc. in April 2014. El Pollo Loco Holdings, Inc. was
founded in 1980 and is headquartered in Costa Mesa, California.
EL POLLO: Deal Reached in Olvera, Perez, Vega & Gonzalez Suits
--------------------------------------------------------------
El Pollo Loco Holdings, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 8, 2019,
for the fiscal year ended December 31, 2018, that a settlement in
principle has been reached in:
* Olvera, et al v. El Pollo Loco, Inc., et al,
* Martha Perez v. El Pollo Loco, Inc.,
* Maria Vega, et al. v. El Pollo Loco, Inc., and
* Gonzalez v. El Pollo Loco, Inc.
On or about February 24, 2014, a former employee filed a class
action in the Superior Court of the State of California, County of
Orange, under the caption Elliott Olvera, et al v. El Pollo Loco,
Inc., et al (Case No. 30-2014-00707367-CU-OE-CXC) (the "Olvera
Action") on behalf of all putative class members (all hourly
employees from 2010 to the present) alleging certain violations of
California labor laws, including failure to pay overtime
compensation, failure to provide meal periods and rest breaks, and
failure to provide itemized wage statements.
The putative lead plaintiff's requested remedies include
compensatory and punitive damages, injunctive relief, disgorgement
of profits, and reasonable attorneys' fees and costs. No specific
amount of damages sought was specified in the complaint.
The court recently certified two classes of plaintiffs -- one class
encompasses restaurant employees who were not provided proper rest
breaks because they were not allowed to leave the premises during
their breaks and the other class encompasses restaurant employees
who were required to wait at the restaurant after they finished
working for the night until the manager set the alarm for safety
purposes.
The parties reached a settlement in principle on January 24, 2019
of all claims brought on behalf of the 32,000+ putative class
members in the Olvera Action, as well as all claims for failure to
pay overtime compensation, failure to provide meal periods and rest
breaks, and failure to provide itemized wage statements brought in
the class actions captioned Martha Perez v. El Pollo Loco, Inc.
(Los Angeles Superior Court Case No. BC624001), Maria Vega, et al.
v. El Pollo Loco, Inc. (Los Angeles Superior Court Case No.
BC649719), and Gonzalez v. El Pollo Loco, Inc. (Los Angeles
Superior Court Case No. BC712867).
The settlement reached in principle in the Olvera, Perez, Vega, and
Gonzalez actions resolves all potential claims from April 12, 2010
through April 1, 2019 El Pollo Loco restaurant employees may have
against El Pollo Loco for failure to pay for all compensation owed,
failure to pay overtime compensation, failure to provide meal
periods and rest breaks, and failure to provide itemized wage
statements, among other wage and hour related claims.
A $16.3 million accrual of an expected settlement amount related to
this matter was recorded as of December 26, 2018. Purported class
actions alleging wage and hour violations are commonly filed
against California employers. The Company fully expects to have to
defend against similar lawsuits in the future.
El Pollo Loco Holdings, Inc., through its subsidiary El Pollo Loco,
Inc., develops, franchises, licenses, and operates quick-service
restaurants under the El Pollo Loco name. The company was formerly
known as Chicken Acquisition Corp. and changed its name to El Pollo
Loco Holdings, Inc. in April 2014. El Pollo Loco Holdings, Inc. was
founded in 1980 and is headquartered in Costa Mesa, California.
ESTENSON LOGISTICS: Parsons Files Suit in Cal. Super. Ct.
---------------------------------------------------------
A class action lawsuit has been filed against Estenson Logistics
LLC. The case is styled as Robert Parsons, on behalf of all others
similarly situated, Plaintiff v. Estenson Logistics LLC, Does 1-50,
Defendants, Case No. 34-2019-00252929-CU-OE-GDS (Cal. Super. Ct.,
Sacramento Cty., Mar. 21, 2019).
The case type is stated as "Other Employment".
Estenson Logistics, LLC provides logistics services. The Company
offers container, supply chain consulting, warehousing, inventory
management, and other related services.[BN]
The Plaintiff is represnetd by:
Larry W Lee, Esq.
Diversity Law Group
515 S Figueroa St Ste 1250
Los Angeles, CA 90071-3316
Phone Number: (213) 488-6555
Fax Number: (213) 488-6554
Email: lwlee@diversitylaw.com
EXPEDIA INC: Class Certification Bid in Buckeye Suit Partly Granted
-------------------------------------------------------------------
In the case, BUCKEYE TREE LODGE AND SEQUOIA VILLAGE INN, LLC, et
al., Plaintiffs, v. EXPEDIA, INC., et al., Defendants, Case No.
16-cv-04721-VC (N.D. Cal.), Judge Vince Chhabria of the U.S.
District Court for the Northern District of California granted in
part and denied in part the Plaintiffs' Renewed Motion for Class
Certification.
Expedia is an online travel agency that offers hotel bookings on
its websites. The Plaintiffs are owners of hotels that are not
available through Expedia. They allege that when customers search
for their hotels on Google or within one of Expedia's websites,
Expedia falsely suggests that these hotels can generally be booked
on the websites, but they are "sold out" for the period that the
customer wants to book them. The Plaintiffs further allege that
Expedia then steers customers to similar hotels that are, in fact,
available on its websites, thus depriving the Plaintiffs of
business they would have received if Expedia had not misdirected
the customers.
The four named Plaintiffs -- owners of Buckeye Tree Lodge, The
Mansion, Shiloh Morning Inn, and Prospect Historic Hotel --
discovered that Expedia's websites were misdirecting their
potential customers in the manner described above. For example,
visitors to the Mansion's property told its managers they tried to
book stays there, but the hotel was consistently sold out. It
turned out that Expedia had been listing the Mansion as sold out,
even though the Mansion had no booking agreement with Expedia.
Buckeye was also allegedly informed of its appearance on Expedia's
websites by potential customers. Although Buckeye could not be
booked on those websites, from January 2015 through August 2016,
149 people landed on the Buckeye infosite page on Expedia; four of
those people subsequently made a reservation with another hotel
during the same visit to the website.
Only the Mansion was able to get itself removed from Expedia's
websites before joining the lawsuit. Buckeye, on the other hand,
tried to get Expedia to remove its information from its websites,
but it wasn't until the day after Buckeye sued that Expedia did so.
Shiloh and Prospect moved to intervene in the suit on Aug. 17,
2018. One week later, Expedia removed Shiloh from its websites.
And one month later, Prospect was removed.
The Plaintiffs initially moved to certify a class of both
"affiliated" and "unaffiliated" hotels -- that is, hotels that had
direct contractual arrangements with Expedia and hotels that
didn't. Although the named Plaintiffs were unaffiliated, they
contended that they could also represent affiliated hotels, on the
theory that Expedia was also making misleading statements about
availability at those hotels.
The Court concluded that the proposed class was too broad, and
denied the motion without prejudice to filing a renewed motion to
certify a narrower class. The Plaintiffs now move to certify a
class of hotels that have no direct contractual arrangement with
Expedia. They seek certification of this class to pursue
injunctive relief under Rule 23(b)(2), and disgorgement of
Expedia's profits under Rule 23(b)(3). In the alternative to a
disgorgement class, they seek to certify a common issues class
under Rule 23(c)(4).
Judge Chhabria finds that there is no evidence that Expedia has
made a meaningful attempt to ensure that its website will stop
suggesting that hotels it cannot book are sold out. Indeed, given
the absence of evidence that Expedia has instituted reforms to
prevent itself from listing hotels whose rooms are not available on
its websites, there is reason to believe that the named Plaintiffs
themselves could end up on those websites again. Therefore, the
named Plaintiffs have standing to seek injunctive relief.
The Judge next finds that the the Plaintiffs are proposing a class
of all hotels that lack a direct contractual relationship with
Expedia but whose information was represented on Expedia's
websites. The problem is that Expedia is actually capable of
booking rooms at some of those hotels -- specifically, the hotels
whose owners made bookings available to third party vendors who in
turn made bookings available to Expedia. A hotel that is capable
of being booked through Expedia is in a very different position,
from a Lanham Act perspective, from a hotel that is not capable of
being booked on Expedia. The "sold out" messages may not be
misleading for the former category of hotels, while they may well
be misleading for the latter category. Therefore, the question of
whether injunctive relief is appropriate, and the question of what
type of injunctive relief is appropriate, is not common across the
class the Plaintiffs have proposed. However, a narrower class --
one that consists of hotels that appear on Expedia's websites even
though they are not capable of being booked on those sites -- is
amenable to certification.
Lastly, injunctive relief would uniformly benefit the members of
the class. If the Court were to determine that Expedia's messaging
was misleading in violation of the Lanham Act, an injunction that
required Expedia to communicate more clearly when it didn't have
the power to book rooms at a given hotel may be warranted. Expedia
could also be required to clearly indicate when listed phone
numbers connect directly to its call centers. It could be enjoined
to ensure that Google ads pertaining to unbookable hotels clearly
say as much. And, as mentioned in the previous section, Expedia
could be ordered to take measures to better comb its system to
ensure that unaffiliated hotels are not being listed in the first
place.
The Plaintiffs also move to certify a Rule 23(b)(3) class to seek
disgorgement of the profits Expedia earned through its alleged
false advertisement. The Judge finds that because the Plaintiffs
failed to adequately present a classwide disgorgement model, it is
inevitable that individual questions of damages will overwhelm
questions common to the class. The motion to certify a Rule
23(b)(3) class is therefore denied.
The Plaintiffs contend that, in the event they can't get
certification of a disgorgement class, the Court should certify a
limited class action to decide common issues of liability. But the
Plaintiffs have failed to show that such a class would materially
advance the disposition of the case(s) as a whole as compared to
merely certifying an injunctive relief class. Therefore, the
motion to certify a Rule 23(c)(4) class is denied.
In light of this, Judge Chhabrua granted in part and denied in part
the Renewed Motion for Class Certification. A further case
management conference is scheduled for April 23, 2019 at 1:30 p.m.
A joint case management statement, including a proposed schedule
for the duration of the case, is April 16, 2019.
The Judge granted the first motion to seal. Villavicencio's
Declaration is reasonably redacted to omit financial information
pertaining to the sale of the Buckeye Tree Lodge. And Exhibit 15
details Expedia's Google ad expenditures -- the Court sealed this
identical document in an earlier sealing motion.
The second motion to seal is also granted as modified by the Court.
Exhibit 38 will remain under seal and the Reply brief will remain
redacted at pages 3-4, and 14. The Plaintiffs are ordered to file
a redacted Reply brief in accordance with this order within seven
days. Exhibit 42 will also be unsealed.
The motions for leave to file a surreply and a sur-surreply are
granted. The filings were considered by the Court in deciding the
order.
Finally, the Judge denied the motions for leave to file amicus
briefs. They were filed too late for the defendants to have a
meaningful opportunity to respond.
A full-text copy of the Court's March 13, 2019 Order is available
at https://is.gd/hFfveo from Leagle.com.
Buckeye Tree Lodge and Sequoia Village Inn, LLC, a California
limited liability company, on behalf of itself and all others
similarly situated, Plaintiff, represented by James Richard
Patterson -- jim@pattersonlawgroup.com -- Patterson Law Group, APC,
Allison Hughes Goddard -- ali@pattersonlawgroup.com -- Patterson
Law Group, APC & Elizabeth Ann Mitchell.
2020 O Street Corporation, Inc., individually and on behalf of
themselves and all others similarly situated, Plaintiff,
represented by Alexandra C. Warren -- awarren@cuneolaw.com -- Cuneo
Gilbert and LaDuca, LLP, Ben F. Pierce Gore, Pratt & Associates,
Charles J. LaDuca, Cuneo Gilbert & LaDuca, LLP, James Richard
Patterson, Patterson Law Group, APC, Joel Davidow, Cuneo Gilbert
LaDuca, Tony C. Richa, Allison Hughes Goddard, Patterson Law Group,
APC & Elizabeth Ann Mitchell.
Prospect Historic Hotel & Shiloh Morning Inn, Intervenor Plas,
represented by Allison Hughes Goddard, Patterson Law Group, APC.
Expedia, Inc., a Washington corporation, Hotels.com, L.P., a Texas
limited liability company, Hotels.com GP, LLC, a Texas limited
partnership, Orbitz, LLC, a Delaware limited liability company,
Venere Net S.R.L., an Italian limited liability company & Expedia
Australia Investments PTY Ltd., an Australian private company,
Defendants, represented by Cortlin Hall Lannin -- clannin@cov.com
-- Covington & Burling LLP, Emily Johnson Henn -- ehenn@cov.com --
Covington & Burling LLP, Simon J. Frankel -- sfrankel@cov.com --
Covington & Burling LLP, Megan Louise Rodgers, Covington and
Burling LLP & Richard Broer Oatis -- roatis@cov.com -- Covington
Burling LLP.
Professional Association of Innkeepers International & Association
of Independent Hospitality Professionals, Amicuss, represented by
Michael Andrew McShane, Audet & Partners LLP.
EXPEDIA INC: Ct. Narrows Claims in Buckeye Suit, Hearing on Apr. 23
-------------------------------------------------------------------
The Hon. Vince Chhabria grants in part and denies in part the
renewed motion to certify class in the lawsuit entitled BUCKEYE
TREE LODGE AND SEQUOIA VILLAGE INN, LLC, et al. v. EXPEDIA, INC.,
et al., Case No. 3:16-cv-04721-VC (N.D. Cal.).
A further case management conference is scheduled for April 23,
2019, at 1:30 p.m. A joint case management statement, including a
proposed schedule for the duration of the case, is due on April 16,
2019.
According to the ruling, the first motion to seal is granted. The
Court notes that Villavicencio's Declaration is reasonably redacted
to omit financial information pertaining to the sale of the Buckeye
Tree Lodge. Exhibit 15 details Expedia's Google ad
expenditures--the Court sealed this identical document in an
earlier sealing motion.
Meanwhile, the second motion to seal is granted as modified by the
Court. Exhibit 38 will remain under seal and the Reply brief will
remain redacted at pages 3-4, and 14. The Plaintiffs are ordered
to file a redacted Reply brief in accordance with this order within
seven days. Exhibit 42 will also be unsealed.
The motions for leave to file a surreply and a sur-surreply are
granted. The filings were considered by the Court in deciding this
order.
The motions for leave to file amicus briefs are denied. They were
filed too late for the Defendants to have a meaningful opportunity
to respond, Judge Chhabria notes.
Expedia is an online travel agency that offers hotel bookings on
its Web sites. The Plaintiffs are owners of hotels that are not
available through Expedia. They allege that when customers search
for their hotels on Google or within one of Expedia's Web sites,
Expedia falsely suggests that these hotels can generally be booked
on the Web sites, but they are "sold out" for the period that the
customer wants to book them. The Plaintiffs further allege that
Expedia then steers customers to similar hotels that are, in fact,
available on its Web sites, thus, depriving the Plaintiffs of
business they would have received if Expedia had not misdirected
the customers. The Plaintiffs have moved to certify a class of
hotel owners to seek an injunction to put a stop to this
practice.[CC]
FERRELLGAS PARTNERS: Still Defends Consolidated Class Suit in
Missouri
----------------------------------------------------------------------
Ferrellgas Partners, L.P. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on March 8, 2019, for the
quarterly period ended January 31, 2019, that the company continues
to defend itself from a consolidated class action lawsuit in the
Western District of Missouri.
Ferrellgas has been named as a defendant, along with a competitor,
in putative class action lawsuits filed in multiple jurisdictions.
The lawsuits, which were consolidated in the Western District of
Missouri on October 16, 2014, allege that Ferrellgas and a
competitor coordinated in 2008 to reduce the fill level in barbeque
cylinders and combined to persuade a common customer to accept that
fill reduction, resulting in increased cylinder costs to direct
customers and end-user customers in violation of federal and
certain state antitrust laws.
The lawsuits seek treble damages, attorneys' fees, injunctive
relief and costs on behalf of the putative class.
These lawsuits have been consolidated into one case by a
multidistrict litigation panel. The Federal Court for the Western
District of Missouri initially dismissed all claims brought by
direct and indirect customers other than state law claims of
indirect customers under Wisconsin, Maine and Vermont law. The
direct customer plaintiffs filed an appeal, which resulted in a
reversal of the district court's dismissal.
The company filed a petition for a writ of certiorari which was
denied. An appeal by the indirect customer plaintiffs resulted in
the court of appeals affirming the dismissal of the federal claims
and remanding the case to the district court to decide whether to
exercise supplemental jurisdiction over the remaining state law
claims.
Ferrellgas believes it has strong defenses to the claims and
intends to vigorously defend against the consolidated case.
Ferrellgas does not believe loss is probable or reasonably
estimable at this time related to the putative class action
lawsuit.
Ferrellgas Partners, L.P. distributes and sells propane and related
equipment and supplies. The company transports propane to propane
distribution locations, tanks on customers’ premises, or to
portable propane tanks delivered to retailers. Ferrellgas Partners,
L.P. was founded in 1939 and is headquartered in Overland Park,
Kansas.
FIRST NATIONAL: Johns Wants Injunction Considered for Class Cert.
-----------------------------------------------------------------
The Plaintiff in the lawsuit captioned Charles Kelvin Johns v.
James T. Ramage, President First National Bank of Brundidge,
Brundidge, Alabama, or his successor(s) in office, Respondent(s),
Case No. 2:19-cv-00118-MHT-CSC (M.D. Ala.), asks the Court to:
(a) order that the pending preliminary injunction directed
against the Defendant be considered for class
certification under Rule 23(b)(2) of the Federal Rules of
Civil Procedure with discovery and hearing thereupon and
with appointment of:
(1) interim counsel under Rule 23(g)(3); and
(2) a master under Rule 53(a)(1)(B) for necessary forensic
accounting of the records at the First National Bank
of Brundidge, and any related financial institutions,
relating to the Collier-Johns estate & the beneficiary
heirs to that estate; and
(b) deposit into Court all of the fungible monies, or other
deliverable financial assets, being held under the names &
Social Security numbers (SSN) of Plaintiff Representative
Charles Kelvin Johns, or the other identifiable class
members.
The Plaintiff avers that he became an 'heir at law' to the
financial assets inherited from his father in 1984 that are being
held at the First National Bank of Brundidge (FNBB) and, under such
circumstances, he represents a class of similarly situated persons
identified as the descendant heirs of the Collier-Johns Estate,
whose properties were unlawfully expropriated by the ancestors of,
among others, James T. Ramage, when the Collier-Johns family was
brutally banished from the Town of Brundidge in 1926 at the hands
of the Klu Klux Klan and displaced to the northern states leaving
all of their property and financial assets behind.
Plaintiff Charles Kelvin Johns, is an inmate at Bullock
Correctional Facility, in Union Springs, Alabama.[CC]
FRONTIER RAILROAD: Adams Suit Alleges FLSA Violation
----------------------------------------------------
William Adams and Tarron Gray, on behalf of themselves and all
others similarly situated v. Frontier Railroad Services, LLC, Case
No. 2:19-cv-00800 (S.D. Ohio, March 6, 2019), seeks to recover
unpaid wages, including overtime wages under the Fair Labor
Standards Act.
Pursuant to the Defendant's companywide policy, the Plaintiffs and
those similarly situated are not paid for all of the time they
spent traveling to Overnight Jobs. For example, the Defendant has a
companywide policy that expressly excludes payment for the first
hour of travel to Overnight Jobs. That same policy also excludes
payment for travel to Overnight Jobs before the hours of 7:00 AM
and after 4:00 PM, even though the Plaintiffs and those similarly
situated typically worked earlier than 7:00 AM and later than 4:00
PM.
The Plaintiffs were employed by the Defendant as non-exempt
employees, such as laborers and operators.
The Defendant performs railroad construction, maintenance and
assessment services in multiple states, including Ohio. [BN]
The Plaintiffs are represented by:
Robi J. Baishnab, Esq.
NILGES DRAHER LLC
34 N. High St., Ste. 502
Columbus, OH 43215
Tel: (614) 824-5770
Fax: (330) 754-1430
E-mail: rbaishnab@ohlaborlaw.com
GENERAL ELECTRIC: Mahar Class Action Dismissed
----------------------------------------------
General Electric Company said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on February 26, 2019,
for the fiscal year ended December 31, 2018, that the Mahar class
action lawsuit was dismissed.
In July 2018, the Mahar class action was filed in New York state
court naming as defendants GE, former GE executive officers, a
former member of GE's Board of Directors and KPMG LLP.
It alleged violations of Sections 11, 12 and 15 of the Securities
Act of 1933 based on alleged misstatements related to insurance
reserves and performance of GE's business segments in GE Stock
Direct Plan registration statements and documents incorporated
therein by reference and seeks damages on behalf of shareowners who
acquired GE stock between July 20, 2015 and July 19, 2018 through
the GE Stock Direct Plan.
In February 2019, this case was dismissed.
General Electric Company operates as a high-tech industrial company
worldwide. It operates through Power, Renewable Energy, Aviation,
Oil & Gas, Healthcare, Transportation, Lighting, and Capital
segments. The company was founded in 1892 and is based in Boston,
Massachusetts.
HG STAFFING: Court Dismisses Ramirez Suit Over Unpaid Overtime
--------------------------------------------------------------
In the case, ANTONIO RAMIREZ, et al., Plaintiffs, v. HG STAFFING,
LLC; MEI-GSR HOLDINGS LLC d/b/a GRAND SIERRA RESORT; and Does 1
through 50, inclusive, Defendants, Case No. 3:16-cv-00318-LRH-WGC
(D. Nev.), Judge Larry R. Hicks of the U.S. District Court for the
District of Nevada (i) granted the Plaintiffs' motion to dismiss,
and (ii) conditionally denied as moot the Defendants' motion for
partial summary judgment.
The dispute centers on the Defendants' alleged failure to pay the
Plaintiffs overtime wages. It began in a separate and now
independent matter: Sargent et al. v. HG Staffing et al.,
3:13-cv-00453-LRH-WGC. Sargent was removed to the Court in August
2013, and its proposed classes were conditionally certified in May
2014. But the Court later decertified the proposed classes in
March 2016 for not being "similarly situated" as required by the
FLSA. y this time, the parties had conducted extensive discovery
and had filed multiple motions.
After the Court ordered decertification in Sargent, the matter was
filed on June 10, 2016. The complaint was later amended. The
second amended complaint asserted one FLSA violation for the
narrow-proposed class of employees who were required to carry a
cash bank in completing their job duties. It did not allege any
state-law claims. The amended complaint was filed by numerous named
Plaintiffs on behalf of themselves and all others similarly
situated. The parties have agreed to use the discovery from
Sargent in the matter. The parties have also conducted additional
discovery particularly for the matter.
Four days after the matter was filed, a state-court class action
was also filed. The state-court action does not assert any FLSA
claims; it instead asserts state-law claims for lost wages under
Chapter 608 of the Nevada Revised Statutes on behalf of four named
Plaintiffs and all others similarly situated. In early 2017 and
before any motions were decided in the state-court action, the
state court stayed the state-court action pending an anticipated
decision from the Nevada Supreme Court. The stay was not lifted
until Dec. 20, 2017. The parallel state-court action is currently
pending.
In January 2018, the Plaintiffs filed a motion to stay or in the
alternative, dismiss the matter without prejudice based on the
similarly natured claims in the action and the state-court action.
After finding that a majority of the Colorado River Doctrine
factors weighed against a stay, the Court denied the Plaintiffs'
motion to stay with prejudice.
The Plaintiffs now move to voluntarily dismiss the matter without
prejudice, this time based on the Nevada Supreme Court's ruling in
Neville v. Eighth Judicial District Court in & for County of Clark,
406 P.3d 499 (Nev. 2017). Simultaneously, the Defendants move for
partial summary judgment, arguing that 65 Plaintiffs are barred by
a two-year statute of limitations, eight of whom are also barred
because they never worked more than 40 hours per week as required
to receive overtime under the FLSA, and nine Plaintiffs are barred
because they didn't use a cash bank.
Judge Hicks finds that the Defendants have spent considerable time
and money engaging in discovery and generally litigating the
already 5-year-old case. Additionally, the condition is not overly
broad for the situation at hand: there is only one pending claim
and therefore, dismissal with prejudice will only affect the claim
under which defendants have also asserted a statute of limitations
defense.
Further, he finds that the Plaintiffs have made the choice to split
their claims between federal and state court. However, that does
not mean that the Court should allow them to fully litigate their
claims in state court, and then, should they be unsuccessful,
permit them to return to federal court and take another bite at the
apple. If the Plaintiffs truly wish to abandon their federal law
claims in favor of their state law claims, the Court will allow
them to do so, but they will not be permitted to return to federal
court and attempt to relitigate the action at a later date.
Judge Hicks granted the Plaintiffs' motion to voluntarily dismiss
the action on the condition that it be with prejudice. The
Plaintiffs have 30 days from the date of the Order to withdraw
their motion or consent to the dismissal despite the condition. A
failure to respond within the 30-day window will constitute a
consent to dismissal with prejudice. The Judge conditionally
denied a moot the Defendants' motion for partial summary judgment.
A full-text copy of the Court's March 13, 2019 Order is available
at https://is.gd/oiNWGK from Leagle.com.
Hillary Baker, Radd Bates, Claire Berry, Brigitte Bliss, Frances
Bolin, Esperanza Buehrle, Patrick Bukowski, Lizeth Cardenas-Ramos,
Todd Carns, Tiffany Carter, Jessica Clay, Jacklyn Curry, David
Duran, Melvin English, Jay Eyer, Levi Feuerherm, Diana Flores,
Fernando Garcia, Matthew Geis, Nicole Gildea, Andrew Gnagy, Alfred
Goranson, Keanu Govan, Staci Greeson, Marilyn Hall, Brett
Henderson, Ebony Holmes, Patricia Hughes, Ashlie Jones, Sarah
Jones, Gerald Larson, III, Christopher Lombardo, Kevin Long, Terry
Marhanka, Mary Marshall, Eddy Martel-Rodriguez, Christina Martin,
Bonnie Massa, Christina McCoy, Frances Meager, Kiel Moore, Robert
Morgan, Louise Ndolo-Hermann, Melissa Nehrbass, Inez Niegemann,
Stacey Ornelas, Nancy Pallas, Sean Park, Jayne Parton, Maria
Pelaez-Rojas, Arturo Pineda, Heather Ramirez, Joa Records, Adam
Reigle, Crystelle Rife, Gloria Robotham, Jacqueline Sanchez,
Brandon Schultz, Paul Schultz, Nicole Seuffert, Trena Smith,
Michael Stevens, Darlene Vance, Emily Vandrielen, Esperanza
Vasquez, Celene Vasquez, Maria Veslazquez-Desed, Michael Walls,
Andrew Werth, Karla Woolley & Melvin Xitumul, Plaintiffs,
represented by Mark R. Thierman -- mark@thiermanbuck.com --
Thierman Buck, LLP, Joshua D. Buck -- josh@thiermanbuck.com --
Thierman Buck, LLP & Leah Lin Jones -- leah@thiermanbuck.com --
Thierman Buck, LLP.
Maria Ducker, Plaintiff, represented by Mark R. Thierman, Thierman
Buck, LLP & Leah Lin Jones, Thierman Buck, LLP.
HG STAFFING, LLC & MEI-GSR Holdings, LLC dba Grand Sierra Resort,
Defendants, represented by Chris William Davis, COHEN JOHNSON
PARKER & EDWARDS, H. Stan Johnson, COHEN-JOHNSON, LLC & Susan H.
Hilden -- shilden@meruelogroup.com -- Meruelo Group LLC.
HILLSBOROUGH COUNTY, FL: Boeji Suit Tossed; Must Amend in 30 Days
-----------------------------------------------------------------
The Hon. Steven D. Merryday issued an order in the lawsuit styled
EDWARD GORDON BOEJI v. SHERIFF CHAD CHRONISTER, et al., Case No.
8:18-cv-01620-SDM-AAS (M.D. Fla.):
-- granting the Plaintiff's motion for leave to proceed in
forma pauperis;
-- denying the Plaintiff's motions to appoint counsel, to
compel free photocopies, and to certify this case as a
class action;
-- denying all other pending motions; and
-- dismissing, without prejudice to the filing of an amended
complaint within 30 days, the civil rights complaint.
Judge Merryday rules that the failure to timely file an amended
complaint will result in the dismissal of this action without
further notice. The Clerk must both send to Mr. Boeji the required
civil rights complaint form and return to him each original
grievance form in the file.
Mr. Boeji's complaint alleges that the Defendants have violated his
civil rights while he is detained in the Hillsborough County
jail.[CC]
ICON HEALTH: Has Made Unsolicited Calls, Portillo Suit Claims
-------------------------------------------------------------
MYNOR F PORTILLO, individually and on behalf of all others
similarly situated, Plaintiff v. ICON HEALTH AND FITNESS, INC.; and
Does 1-10, Defendants, Case No. 2:19-cv-01428-ODW-PJW (C.D. Cal.,
Feb. 26, 2019) seeks to stop the Defendants' practice of making
unsolicited calls. The case is assigned to Judge Otis D. Wright, II
and referred to Magistrate Judge Patrick J. Walsh.
ICON Health & Fitness, Inc. develops, manufactures, and markets
fitness equipment. It offers treadmills; elliptical cross-trainers
that offer low-impact cardio exercise for women; exercise bikes;
and other strength training products. It also offers stationary
bikes, home gym, weight benches, yoga and pilates equipment,
hand-held exercise, and performance apparel. The company offers its
products through retailers in the United States, Asia, Brazil,
Australia, Europe, Latin America, Mexico, and internationally. It
also offers products online. The company was founded in 1977 and is
based in Logan, Utah with R&D, manufacturing, and sales facilities
in the United States, Canada, China, and Europe. As of July 2011,
ICON Health & Fitness, Inc. operates as a subsidiary of IHF
Holdings Inc. [BN]
The Plaintiff is represented by:
David W Reid, Esq.
Victoria C Knowles, Esq.
Scott J Ferrell, Esq.
PACIFIC TRIAL ATTORNEYS APC
4100 Newport Place Suite 800
Newport Beach, CA 92660
Telephone: (949) 706-6464
Facsimile: (949) 706-6469
E-mail: dreid@pacifictrialattorneys.com
vknowles@pacifictrialattorneys.com
sferrell@pacifictrialattorneys.com
ING GROEP: Continues to Defend SIBOR - SOR Suit in New York
-----------------------------------------------------------
ING Groep N.V. said in its Form 20-F report filed with the U.S.
Securities and Exchange Commission on March 8, 2019, for the fiscal
year ended December 31, 2018, that the company continues to defend
a class action suit in New York tied to Singapore Interbank Offer
Rate ("SIBOR") and the Singapore Swap Offer Rate ("SOR").
In July 2016, investors in derivatives tied to the Singapore
Interbank Offer Rate ('SIBOR') filed a U.S. class action complaint
in the New York District Court alleging that several banks,
including ING, conspired to rig the prices of derivatives tied to
SIBOR and the Singapore Swap Offer Rate ('SOR').
The lawsuit refers to investigations by the Monetary Authority of
Singapore ('MAS') and other regulators, including the U.S.
Commodity Futures Trading Commission ('CFTC'), in relation to
rigging prices of SIBOR- and SOR based derivatives.
In October 2018, the New York District Court issued a decision
dismissing all claims against ING Group and ING Capital Markets
LLC, but leaving ING Bank, together with several other banks, in
the case, and directing plaintiffs to file an amended complaint
consistent with the Court's rulings.
On 25 October 2018, plaintiffs filed such amended complaint, which
asserts claims against a number of defendants but none against ING
Bank (or any other ING entity), effectively dismissing ING Bank
from the case.
In December 2018, plaintiffs sought permission from the Court to
file a further amended complaint that names ING Bank as a
defendant.
ING Groep said, "If the Court allows plaintiffs to file that
complaint, ING Bank will continue to defend itself against the
allegations. Currently, it is not possible to provide an estimate
of the (potential) financial effect of this claim."
ING Groep N.V., a financial institution, provides various banking
products and services to individuals, small and medium-sized
enterprises, and mid-corporates. It operates in Retail Netherlands,
Retail Belgium, Retail Germany, Retail Other, and Wholesale Banking
segments. The company operates in the Netherlands, Belgium, North
America, Latin America, Asia, Australia, and rest of Europe. ING
Groep N.V. was founded in 1991 and is headquartered in Amsterdam,
the Netherlands.
ING GROEP: Defends Mexican Government Bond Price Fixing Class Suit
------------------------------------------------------------------
ING Groep N.V. said in its Form 20-F report filed with the U.S.
Securities and Exchange Commission on March 8, 2019, for the fiscal
year ended December 31, 2018, that the company continues to defend
a class action lawsuit related to Mexican Government Bond price
fixing.
A class action complaint was filed adding ING Bank N.V., ING Groep
N.V., ING Bank Mexico S.A. and ING Financial Markets LLC ("ING") as
defendants to a complaint that had previously been filed against
multiple other financial institutions.
The complaint alleges that the defendants conspired to fix the
prices of Mexican Government Bonds. ING is defending itself against
the allegations.
ING Groep said, "Currently, it is not possible to provide an
estimate of the (potential) financial effect of this claim."
ING Groep N.V., a financial institution, provides various banking
products and services to individuals, small and medium-sized
enterprises, and mid-corporates. It operates in Retail Netherlands,
Retail Belgium, Retail Germany, Retail Other, and Wholesale Banking
segments. The company operates in the Netherlands, Belgium, North
America, Latin America, Asia, Australia, and rest of Europe. ING
Groep N.V. was founded in 1991 and is headquartered in Amsterdam,
the Netherlands.
ING GROEP: ING Spain Still Defends Mortgage Expenses Claims Suit
----------------------------------------------------------------
ING Groep N.V. said in its Form 20-F report filed with the U.S.
Securities and Exchange Commission on March 8, 2019, for the fiscal
year ended December 31, 2018, that ING Spain continues to defend a
class action lawsuit related to mortgage expenses claims.
ING Spain has received claims and is involved in procedures with
customers regarding reimbursement of expenses associated with the
formalisation of mortgages. In most court proceedings in first
instance the expense clause of the relevant mortgage contract has
been declared null and ING Spain has been ordered to reimburse all
or part of the applicable expenses.
The courts in first instance have applied in their rulings
different criteria regarding the reimbursement of expenses. ING
Spain has filed an appeal against a number of these court
decisions.
ING Spain has also been included, together with other Spanish
banks, in a class action filed by a customer association. The
outcome of the pending litigation and similar cases that may be
brought in the future is uncertain. A provision has been taken.
However, the aggregate financial impact of the current and future
litigation could change.
In February 2018, the Spanish Supreme Court ruled that Stamp Duty
(Impuesto de Actos Jurídicos Documentados) expenses are chargeable
to the customer, while in October 2018 it ruled that Stamp Duty is
chargeable to the banks. In November 2018, the Spanish Supreme
Court clarified the issue regarding Stamp Duty by stating that this
tax should be borne by the customer.
As for the remaining types of the expenses, in January 2019, the
Spanish Supreme Court issued several decisions that stated that the
client and the bank each have to bear half of the notary and
management company costs and that registry costs have to be borne
in full by the bank.
Allocation of valuation costs between the bank and the customer
were not addressed by the Spanish Supreme Court decisions and
remain uncertain.
ING Groep N.V., a financial institution, provides various banking
products and services to individuals, small and medium-sized
enterprises, and mid-corporates. It operates in Retail Netherlands,
Retail Belgium, Retail Germany, Retail Other, and Wholesale Banking
segments. The company operates in the Netherlands, Belgium, North
America, Latin America, Asia, Australia, and rest of Europe. ING
Groep N.V. was founded in 1991 and is headquartered in Amsterdam,
the Netherlands.
INSIGHT GLOBAL: Willie, et al. Seek Unpaid Wages for Recruiters
---------------------------------------------------------------
Brett Willie, et al., the Plaintiffs, vs. Insight Global, LLC, the
Defendant, Case No. 1:19-cv-00801-ELH (D. Md., March 15, 2019),
seeks to recover unpaid wages, liquidated damages, interest,
reasonable attorneys' fees and costs under Section 16(b) of the
Federal Fair Labor Standards Act of 1938, the Maryland Wage and
Hour Law, the Maryland Wage Payment and Collection Law.
The Plaintiffs worked as Recruiters for the Defendant. the
Plaintiffs and Defendant's other Recruiters underwent the same
training. They all performed the same tasks. They all had to
consistently work more than 40 hours a week. There were production
demands they had to meet each day.
The demands resulted in the Plaintiffs and other Recruiters having
to work 50-60 hours a week. There were times that they worked even
more. Working overtime was integral to their employment; the
requirements of their position left no other choice. The Defendant
was well aware of the overtime hours worked by the Plaintiffs and
other Recruiters. However, the Defendant did not pay its Recruiters
for all of their hours worked. The Defendant willfully
misclassified the Plaintiffs and other Recruiters as exempt from
the overtime requirements, the lawsuit says.
The Defendant specializes in staffing accounting, finance,
engineering and information technology positions for its clients.
The Defendant maintains offices nationwide and employs numerous
individuals to assist its clients with their staffing needs.[BN]
Attorneys for the Plaintiffs:
Benjamin L. Davis, III, Esq.
Kelly A. Burgy, Esq.
THE LAW OFFICES OF PETER T. NICHOLL
36 South Charles Street, Suite 1700
Baltimore, MD 21201
Telephone: (410) 244-7005
Facsimile: (410) 244-8454
E-mail: bdavis@nicholllaw.com
kaburgy@nicholllaw.com
IOWA: Class of Schoolboys Certified in JSX Suit v. Human Serv. Dept
-------------------------------------------------------------------
The Hon. Stephanie M. Rose grants the Plaintiffs' Motion for Class
Certification in the lawsuit styled J.S.X. through his next friend
D.S.X., C.P.X. through his next friend S.P.X., and K.N.X. through
his next friend Rachel Antonuccio, for themselves and those
similarly situated v. JERRY FOXHOVEN in his official capacity as
Director of the Iowa Department of Human Services; RICHARD SHULTS
in his official capacity as Administrator of the Division of Mental
Health and Disability Services; MARK DAY in his official capacity
as Superintendent of the Boys State Training School, Case No.
4:17-cv-00417-SMR-HCA (S.D. Iowa).
The Court certifies a class consisting of all boys confined to the
School since the filing of the Complaint, now, or in the future,
who have received psychotropic medications or a diagnosis for a
mental health disorder specified in the Diagnostic and Statistical
Manual of Mental Disorders, Fifth Edition ("DSM-V") or Fourth
Edition ("DSM-IV"), as determined by a mental health professional.
Judge Rose denies the Defendants' Motion for an Evidentiary
Hearing. The Court appoints Plaintiffs J.S.X., C.P.X., and K.N.X.
as class representatives, and appoints attorneys from Children's
Rights, Disability Rights Iowa, and Ropes & Gray LLP as class
counsel.
Plaintiffs J.S.X., C.P.X., and K.N.X. brought this action on behalf
of a putative class of individuals at the Boys State Training
School ("the School") in Eldora, Iowa. The Plaintiffs allege that
Defendants Jerry Foxhoven, Richard Shults, and Mark Day maintain
unconstitutional and illegal treatment practices with respect to
the juveniles at the School, who have significant mental
illnesses.[CC]
JPMORGAN CHASE: Updates on LIBOR and Benchmark Rate Litigation
--------------------------------------------------------------
JPMorgan Chase & Co. provided updates on various LIBOR and other
benchmark rate investigations and litigation in its Form 10-K
report filed with the U.S. Securities and Exchange Commission on
February 26, 2019, for the fiscal year ended December 31, 2018.
JPMorgan Chase has received subpoenas and requests for documents
and, in some cases, interviews, from federal and state agencies and
entities, including the U.S. Commodity Futures Trading Commission
and various state attorneys general, as well as the European
Commission ("EC"), the Swiss Competition Commission ("ComCo") and
other regulatory authorities and banking associations around the
world relating primarily to the process by which interest rates
were submitted to the British Bankers Association ("BBA") in
connection with the setting of the BBA's London Interbank Offered
Rate ("LIBOR") for various currencies, principally in 2007 and
2008.
Some of the inquiries also relate to similar processes by which
information on rates was submitted to the European Banking
Federation ("EBF") in connection with the setting of the EBF's Euro
Interbank Offered Rate ("EURIBOR"). The Firm continues to cooperate
with these investigations to the extent that they are ongoing.
ComCo's investigation relating to EURIBOR, to which the Firm and
other banks are subject, continues.
In December 2016, the EC issued a decision against the Firm and
other banks finding an infringement of European antitrust rules
relating to EURIBOR. The Firm has filed an appeal of that decision
with the European General Court, and that appeal is pending.
In addition, the Firm has been named as a defendant along with
other banks in a series of individual and putative class actions
related to benchmarks filed in various United States District
Courts, including two putative class actions relating to U.S.
dollar LIBOR during the period that it was administered by ICE
Benchmark Administration.
These actions have been filed, or consolidated for pre-trial
purposes, in the United States District Court for the Southern
District of New York. In these actions, plaintiffs make varying
allegations that in various periods, starting in 2000 or later,
defendants either individually or collectively manipulated various
benchmark rates by submitting rates that were artificially low or
high.
Plaintiffs allege that they transacted in loans, derivatives or
other financial instruments whose values are affected by changes in
these rates and assert a variety of claims including antitrust
claims seeking treble damages. These matters are in various stages
of litigation.
The Firm has agreed to settle putative class actions related to
exchange-traded Eurodollar futures contracts, Swiss franc LIBOR,
EURIBOR, the Singapore Interbank Offered Rate, the Singapore Swap
Offer Rate and the Australian Bank Bill Swap Reference Rate. Those
settlements are all subject to further documentation and court
approval.
In actions related to U.S. dollar LIBOR during the period that it
was administered by the BBA, the District Court dismissed certain
claims, including antitrust claims brought by some plaintiffs whom
the District Court found did not have standing to assert such
claims, and permitted antitrust claims, claims under the Commodity
Exchange Act and common law claims to proceed.
The plaintiffs whose antitrust claims were dismissed for lack of
standing have filed an appeal. In February 2018, as to those
actions which the Firm has not agreed to settle, the District Court
(i) granted class certification with respect to certain antitrust
claims related to bonds and interest rate swaps sold directly by
the defendants, (ii) denied class certification with respect to
state common law claims brought by the holders of those bonds and
swaps and (iii) denied class certification with respect to the
putative class action related to LIBOR-based loans held by
plaintiff lending institutions.
JPMorgan Chase & Co. operates as a financial services company
worldwide. It operates through four segments: Consumer & Community
Banking (CCB), Corporate & Investment Bank (CIB), Commercial
Banking (CB), and Asset & Wealth Management (AWM). JPMorgan Chase &
Co. was founded in 1799 and is headquartered in New York, New
York.
KEYES COMPANY: Itayim Sues Over Unsolicited Text Messages
---------------------------------------------------------
Sam Itayim, individually and on behalf of all others similarly
situated, Plaintiff, v. The Keyes Company, a Florida company,
Defendant, Case No. 0:19-cv-60719-BB (S.D. Fla., March 20, 2019) is
a class action under the Telephone Consumer Protection Act against
Defendant to stop its practice of sending unauthorized and unwanted
text messages to prospective agents promoting its realty brokerage
services, and to obtain redress for all persons similarly injured
by its conduct.
This case challenges Defendant Keyes' practice of sending
unsolicited text messages to real estate agents that are not
affiliated with Keyes promoting Keyes' realty brokerage services.
Keyes' unsolicited texts violated the Telephone Consumer Protection
Act, and caused Plaintiff and putative members of the Class to
suffer actual harm.
Accordingly, Plaintiff seeks an injunction requiring Keyes to cease
sending unsolicited text messages to consumers, as well as an award
of actual and/or statutory damages and costs, says the complaint.
Plaintiff Sam Itayim is a Broward County, Florida resident.
The Keyes Company is a Florida company with a principal place of
business in this District.[BN]
The Plaintiff is represented by:
Avi R. Kaufman, Esq.
KAUFMAN P.A.
400 NW 26th Street
Miami, FL 33127
Phone: (305) 469-5881
Email: kaufman@kaufmanpa.com
LACROIX: Sparkling Water False Advertising Class Action Ongoing
---------------------------------------------------------------
Jeremy C. Owens, writing for MarketWatch, reports that companies
announce earnings in news releases typically titled "Company
reports fourth-quarter earnings," or "Company delivers
record-breaking second quarter." National Beverage Corp. has never
quite followed that path, but Chief Executive Nick Caporella
deviated from the script in a much more extreme way on March 7.
The company that makes the LaCroix brand of sparkling water
headlined a March 7 earnings release, "'We Just Love Our LaCroix'
Consumers Chant," and it only got weirder from there. Besides a
boilerplate first sentence stating what results National Beverage
was announcing and the numbers, the entire release was a long,
rather unhinged quote from Mr. Caporella.
"We are truly sorry for these results stated above," the
three-paragraph quote began. "Negligence nor mismanagement nor
woeful acts of God were not the reasons -- much of this was the
result of injustice!"
Mr. Caporella's rant did not specify exactly what injustice caused
National Beverage to sell fewer cans of flavored sparkling water
than was expected. Instead, he moved on to an awkward metaphor,
comparing his job of managing a company that sells packaged drinks
to caring for a disabled person.
"Managing a brand is not so different from caring for someone who
becomes handicapped," Mr. Caporella said. "Brands do not see or
hear, so they are at the mercy of their owners or care providers
who must preserve the dignity and special character that the brand
exemplifies."
Nathan Yates, a professor of economics and finance who has spinal
muscular atrophy, a form of muscular dystrophy, reached out to
MarketWatch on Twitter after reading this story to share his anger
about the characterization.
"We in the handicap community definitely don't agree with the CEO's
stereotype of disability," Yates wrote. "We're not vegetables who
can't do anything for ourselves. Our handicaps rarely make us
entirely useless as was indicated by the company's press release."
Both Mr. Caporella and LaCroix have faced troublesome accusations
of late. Caporella has been accused of inappropriate touching by
two pilots, The Wall Street Journal reported in July, and a
class-action lawsuit filed last year accuses LaCroix -- which is
billed as "naturally essenced" sparkling water -- of false
advertising for using artificial ingredients.
A National Beverage spokesman said that the injustice of which Mr.
Caporella spoke was the class-action lawsuit, which accuses LaCroix
of containing chemicals also found in cockroach insecticide. On the
comparison of managing a brand and caring for a handicapped person,
he said that Caporella meant that "it just requires a lot of
tender, loving care."
Mr. Caporella's company enjoyed a huge boost in its finances and
profile when LaCroix became popular, with the stock beginning to
show the effects in 2016. The largest gains came in 2017, when
National Beverage was worth more than $5.5 billion at times.
LaCroix, and National Beverage stock have declined since, and
shares took a big hit on March 8 after the report, falling 14.7%.
The stock has now declined 41% in the past year and closed with a
market capitalization of $2.8 billion on March 8. National Beverage
sales declined by $6.5 million from last year to $221 million in
the quarter reported on March 7, and profit fell to $24.8 million
from $41.1 million.
National Beverage earnings releases have long included little
besides a quote from Mr. Caporella, who has rarely followed a
typical executive script. This release, however, stood out even
from previous examples.
"We are not a typical company," the National Beverage spokesman
told MarketWatch. "What comes out in the writings and the releases
is the passion and intensity that we have for our consumer and for
our products."
The release ended with Mr. Caporella harking back to the odd title,
before his signature signoff of "'Patriotism' -- If Only We Could
Bottle It!"
"One can be induced to purchase by cheapening price or giving away
a product, but falling in love with a feeling of joy is the result
of contentment. Just ask any LaCroix consumer . . . Would you trade
away that LaLa feeling? 'No way, they shout -- We just love our
LaCroix!' I am positive they respond this way each and every time."
[GN]
LEGACY HEALTH: Watson Sues over Biometric Practices
---------------------------------------------------
BRANDON WATSON, individually and on behalf of all others similarly
situated, the Plaintiff, vs. LEGACY HEALTH CARE FINANCIAL SERVICES,
LLC d/b/a LEGACY HEAL TH CARE; LINCOLN PARK SKILLED NURSING
FACILITY, LLC d/b/a WARREN BARR LINCOLN PARK a/k/a THE GROVE AT
LINCOLN PARK; and SOUTH LOOP SKILLED NURSING FACILITY, LLC d/b/a
WARREN BARR SOUTH LOOP, the Defendants, Case No. 2019CH03425 (Ill.
Cir., March 15, 2019), alleges that Defendants failed to maintain
or publicize information about their biometric practices or
policies; and failed to provide Plaintiff or any member of the
putative BIPA Class, with information about their policies or
practices.
The case is a class action under the Biometric Information Privacy
Act, on behalf of all persons in Illinois who had their handprints
and/or fingerprints improperly collected, captured, received, or
otherwise obtained by the Defendants. Mr. Watson worked for the
Defendants at several locations in Chicago, Illinois from on or
about December 27, 2012 through on or about February 21, 2019, the
lawsuit says.
Legacy establishes the job requirements, advertises open employment
positions, and collects applications for all employment positions
at each of its 26 Illinois facilities, including the Lincoln Park
Facility and South Loop Facility.
According to the complait, at least 100 individuals performed work
for the Defendants in the State of Illinois. The Defendants collect
biometric identifiers and biometric information from these
individuals through its timekeeping system.
From the start of Plaintiffs employment with the Defendants in 2012
through the end of Plaintiff's employment with the Defendants, the
Plaintiff, and all other members of the putative BIPA Class, was
required to have his fingerprint and/or handprint collected and/or
captured so that the Defendants could store it and use it moving
forward as an authentication method.
Each day, Plaintiff, and the putative BIPA Class members, was each
required to place his entire hand on a panel to be scanned in order
to 'clock in' and 'clock out' of work. Due to the fact that
Plaintiff had to place his entire hand on the Defendants' biometric
scanner, and because the Defendants provided no information about
the device, Plaintiff is not certain whether the Defendants took
scans of only his fingerprints, only his handprint, or of both his
fingerprints and handprints.
Legacy provides residential health care services at facilities
throughout the State of Illinois. The Lincoln Park Facility
provides residential health care services at its facility located
at 2732 Hampden Court, Chicago, Illinois. Legacy is the sole member
and owner of the Lincoln Park Facility. South Loop Skilled Nursing
Facility provides residential health care services at its facility
located at 1725 S. Wabash Street, Chicago, Illinois. Legacy is the
sole member and owner of the South Loop Facility.[BN]
Attorneys for the Plaintiff:
Alejandro Caffarelli, Esq.
Alexis D. Martin, Esq.
CAFFARELLI & ASSOCIATES LTD.
224 S. Michigan Ave., Ste. 300
Chicago, IL 60604
Telephone: (312) 763-6880
LINCOLN LIFE & ANNUITY: Bid to Certify Class in Hanks Partly Okayed
-------------------------------------------------------------------
In the case, HELEN HANKS, on behalf of herself and all others
similarly situated, Plaintiff, v. THE LINCOLN LIFE & ANNUITY
COMPANY OF NEW YORK; VOYA RETIREMENT INSURANCE AND ANNUITY COMPANY,
formerly known as Aetna Life Insurance and Annuity Company,
Defendants, Case No. 16-cv-6399 (PKC) (S.D. N.Y.), Judge P. Kevin
Castel of the U.S. District Court for the Southern District of New
York granted in part and denied in part Hanks' motion for class
certification.
Plaintiff Hanks moves pursuant to Rule 23, Fed. R. Civ. P., to
certify a nationwide class of all owners of universal life
(including variable universal life) insurance policies issued by
Aetna that were subjected to the cost of insurance rate increase
announced in 2016. Hanks asserts that she and her proposed fellow
class members were subjected to an insurance rate increase based on
extra-contractual determinations made by Defendant Lincoln Life,
who purchased the life insurance policies from Aetna in 1998.
According to the Complaint, Aetna became known as Voya Retirement
Insurance and Annuity Co. ("VOYA") on Jan. 1, 2002. Hanks brings
one claim for breach of contract against VOYA, and one claim for
unjust enrichment against Lincoln Life.
In 1984, Hanks purchased a universal life insurance policy issued
by Aetna. Universal life and variable universal life policies have
flexible premiums, unlike other types of life insurance that
require fixed monthly premium payments. Policy owners need only
pay enough to cover certain monthly charges such as the cost of
insurance ("COI") charge; any additional amounts not used to cover
monthly charges accrue to a policy account, where they earn
interest. The COI charge is calculated using a monthly COI rate.
Hanks' insurance policy states that the monthly COI is based on the
Insured's sex, attained age and premium class. The COI rate may be
adjusted by Aetna from time to time on a class basis and based on
Aetna's estimates for future cost factors, such as mortality,
investment income, expenses and the length of time policies stay in
force. Any adjustments will be made on a uniform basis. Under
General Provisions, the policy states that the policy and the
application are the whole contract.
All policies in the case were issued between 1983 and 2000. They
are form contracts containing substantially similar terms
describing the COI rate adjustment.
In 1998, Aetna sold its life insurance business to Lincoln Life
under an indemnity reinsurance agreement. Aetna maintained
contractual privity with its universal and variable universal life
insurance policy holders and was required to pay out death
benefits, while Lincoln would indemnify Aetna for these costs.
Pursuant to a series of agreements between Aetna and Lincoln Life,
Lincoln Life would make recommendations to Aetna with respect to
elements including COI rate increases and Aetna would take into
account the recommendations of Lincoln Life with respect thereto.
In early 2016, Lincoln Life submitted a proposed COI rate increase
recommendation to VOYA (Aetna's successor), which VOYA accepted.
In May 2016, Lincoln Life, acting as administrative agent for
VOYA," sent policyholders notice of a COI rate increase effective
June 1, 2016. The stated reasons for the COI rate increase
included changes in future expectations of key cost factors
associated with providing coverage, including lower investment
income and higher reinsurance costs. Following an investigation by
the New York State Department of Financial Services, VOYA suspended
the COI rate increase as applied to New York policyholders.
According to Hanks, the June 2016 COI rate increase constitutes a
breach of contract by VOYA and unjust enrichment as to Lincoln
Life. This is so, she avers, because the rate increase was
improperly (1) based on Lincoln Life's future cost factors, rather
than VOYA's; (2) applied to policy holders regardless of their
class (sex, age, premium, etc); and (3) imposed on a non-uniform
basis because it did not include New York policyholders.
Judge Castel finds that Hanks has satisfied the requirements of
Rule 23(a). He also finds that she has satisfied Rule 23(b)(3)'s
superiority requirement. Adjudicating Hanks' breach of contract
claim on a class-wide basis would be superior to individual
adjudications. However, there are serious reasons to question the
predominance of common legal issues for the proposed class. Hanks
has not demonstrated also that a class action would be a superior
method of adjudicating the unjust enrichment claim because
manageability of sub-classes based on variations in state law
remains an outstanding concern. The Judge cannot conclude that
common issues predominate.
Hanks requests the appointment of Susman Godfrey L.L.P. as the
class counsel. Susman Godfrey was appointed as the interim class
counsel on Feb. 9, 2017. The firm has provided competent
representation for Hanks since this action's commencement. It has
successfully conducted discovery and its submissions reflect
knowledge of the law governing Hanks' claims and familiarity with
class action procedures. Its performance in the present case
demonstrates competence to protect the interests of the class. The
Judge will appoint Susman Godfrey as the class counsel.
Based on the foregoing, Judge Castel granted Hanks' motion for
class certification for the breach of contract claim, and denied
for the unjust enrichment claim. The Clerk is directed to
terminate the relevant motions. The law firm of Susman Godfrey
L.L.P. is appointed to act as the class counsel. Within 21 days,
the class counsel will submit a proposed form of notice to the
class members and a proposed plan for distributing notice.
A full-text copy of the Court's March 13, 2019 Opinion and Order is
available at https://is.gd/q4RdPl from Leagle.com.
Helen Hanks, on behalf of herself and all others similarly
situated, Plaintiff, represented by Glenn Charles Bridgman --
gbridgman@susmangodfrey.com -- Susman Godfrey LLP, pro hac vice,
Michael K. Gervais, Susman Godfrey LLP, Rohit Nath, Susman Godfrey
LLP, pro hac vice, Ryan Christopher Kirkpatrick, Susman Godfrey
LLP, Nicholas N. Spear, Susman Godfrey LLP, pro hac vice, Steven
Gerald Sklaver -- ssklaver@susmangodfrey.com -- Susman Godfrey LLP
& Seth D. Ard -- sard@susmangodfrey.com -- Susman Godfrey LLP.
The Lincoln Life & Annuity Company of New York & Voya Retirement
Insurance and Annuity Company, formerly known as Aetna Life
Insurance and Annuity Company, Defendants, represented by Alan
Borden Vickery -- avickery@bsfllp.com -- Boies Schiller Flexner
LLP, Andrew Villacastin -- avillacastin@bsfllp.com -- Boies
Schiller Flexner LLP, Evelyn Neel Fruchter, Boies, Schiller &
Flexner LLP, Jack G. Stern, Boies Schiller Flexner LLP, John
Francis La Salle, III, Boies Schiller Flexner LLP & Motty Shulman
-- avillacastin@bsfllp.com -- Boies, Schiller & Flexner LLP.
LUCKY WAH: Alcantara Suit Alleges FLSA and NYLL Violations
----------------------------------------------------------
Anselmo Alcantara, individually and on behalf of all other
employees similarly situated v. Lucky Wah Yeung, Inc. dba Lucky Wah
Yeung's Kitchen, Xuefeng, Case No. 1:19-cv-01313 (E.D. N.Y., March
6, 2019), seeks to recover unpaid minimum and overtime wages under
the Fair Labor Standards Act and the New York Labor Law.
The Plaintiff alleges that although he regularly worked in excess
of 40 hours per week during his employment with the Defendants, the
Defendants never paid him overtime premium as required under the
FLSA and NYLL.
The Plaintiff Anselmo Alcantara is a resident of Queens County and
was employed as a delivery worker by Defendant's Chinese-style
restaurant, with its principal place of business at 43-24 43rd
Ave., Sunnyside, NY 11104, from on or about August 2017 until
December 29, 2018.
The Defendant Lucky Wah Yeung, Inc. dba Lucky Wah Yeung's Kitchen,
operates a Chinese-style restaurant, located at 43-24 43rd Ave.,
Sunnyside, NY 11104. [BN]
Lorena P. Duarte, Esq.
HANG & ASSOCIATES, PLLC
136-20 38th Ave., Suite #10G
Flushing, NY 11354
Tel: (718) 353-8522
E-mail: lduarte@hanglaw.com
LYFT INC: 1st Cir. Affirms Arbitration Ruling in Y. Bekele's Suit
-----------------------------------------------------------------
In the case, YILKAL BEKELE, Plaintiff, Appellant, v. LYFT, INC.,
Defendant, Appellee, Case No. 16-2109 (1st Cir.), Judge Sandra
Lynch of the U.S. Court of Appeals for the First Circuit affirmed
the district court's order (i) granting Lyft's motion to dismiss in
favor of arbitration of Bekele's claim in his individual capacity,
and (ii) dismissing the case in favor of individual arbitration.
Lyft operates a ride-hailing service. The customers use its
mobile-phone application to request rides. The App then matches
each ride request with a Lyft driver in the area.
Before Bekele started driving for Lyft in Boston in the summer of
2014, he downloaded the App on his iPhone 4 and completed the
registration process that Lyft requires of customers and drivers
before they use Lyft's service. When he registered, users were
presented, at one step, with a screen titled "Lyft Terms of Service
("TOS")," which displayed 16 lines of text from the TOS Agreement
in grey ink on a white background. Beneath that text, a
turquoise-colored "I accept" button appeared. Tapping "I accept"
allowed the user to proceed to the next stage of the registration
process.
Bekele tapped "I accept" on the TOS Agreement on May 19, 2014 at
11:45 a.m.; on Sept. 24, 2014 at 10:07 a.m.; and again on Oct. 11,
2014 at 12:25 p.m. The record is silent on why Bekele accepted the
agreement three times. The parties agree that the TOS Agreement in
effect on Oct. 11, 2014 controls the case.
Bekele's complaint on behalf of a class of Massachusetts Lyft
drivers alleges that Lyft violated the Massachusetts Wage Act by
classifying drivers as independent contractors rather than as
employees, and by requiring drivers to bear expenses such as gas
and car maintenance.
Lyft moved to dismiss the complaint and to compel individual
arbitration under the Federal Arbitration Act ("FAA"). The parties
later agreed to treat Lyft's motion as a motion for partial summary
judgment.
In opposing Lyft's motion, Bekele argued that no valid contract to
arbitrate had been formed under Massachusetts law. He also argued
that, even if a valid contract had been formed, it would be
unenforceable under the FAA's savings clause for two reasons: (1)
because its class-waiver provision violates the right to engage in
concerted action granted by the National Labor Relations Act
("NLRA"), and (2) because any agreement to arbitrate was
procedurally and substantively unconscionable under Massachusetts
law.
Ultimately, the district court dismissed the case in favor of
individual arbitration.
Bekele appealed. His initial brief, filed in January 2017, focused
on the NLRA question. It also argued that the agreement was
unconscionable, but it did not raise the formation issue. Before
Lyft had filed its response, the Supreme Court granted certiorari
in Lewis v. Epic Systems Corp., to decide whether class-action
waivers in arbitration agreements violate the NLRA. On Lyft's
motion, the Court then ordered the appeal held in abeyance pending
the Supreme Court's decision.
While the appeal was stayed, the court decided Cullinane v. Uber
Technologies, Inc., which held that no valid agreement to arbitrate
had been formed under Massachusetts law between Uber and customers
who registered on Uber's mobile-phone application. In May 2018,
the Supreme Court held in Epic Systems Corp. v. Lewis, that class
and collective action bars in arbitration agreements are not
incompatible with the NLRA and are therefore enforceable under the
FAA.
Lyft and Bekele next agreed, in a Joint Status Report, that, after
Epic Systems, Bekele cannot prevail on his argument that the
arbitration agreement violates the NLRA. The parties proposed that
Bekele be allowed to file a supplemental opening brief arguing that
no agreement to arbitrate had been formed under Cullinane.
The Court lifted the stay and allowed the supplemental brief.
Bekele filed his supplemental brief, Lyft then responded, and
Bekele replied.
Judge Lynch finds that Bekele waived his contract-formation
argument when he chose not to raise it in his opening brief. She
says it is well settled that the Court does not consider arguments
for reversing a decision of a district court when the argument is
not raised in a party's opening brief. And it is even more
reluctant to excuse deliberate waiver than it is to overlook
inadvertent forfeiture. Bekele sought to appeal the formation
issue only after Epic Systems foreclosed the argument on which he
had chosen to focus in his initial brief.
Bekele also contends that the agreement to arbitrate is
unconscionable and therefore unenforceable. The Judge put aside
Bekele's procedural attack and decides that, because Bekele cannot
show substantive unconscionability, the agreement is enforceable.
Bekele's principal argument that the agreement is substantively
unconscionable stems from the arbitration clause's selection of AAA
Commercial Rules. As said, in October 2014 when the parties'
agreement was formed, these Rules required Bekele and Lyft to split
equally the arbitration's costs. Bekele argues that he and other
Lyft drivers cannot afford such high fees and that this arrangement
is substantively unconscionable. Under the precedent of the Court
and the Massachusetts Supreme Judicial Court, the Judge finds that
Lyft's offer before the district court to pay all fees for an
arbitration with Bekele sinks this argument.
Bekele makes one final argument: that the TOS Agreement's provision
allowing Lyft to modify the terms of the agreement upon notice and
acceptance of the new terms is substantively unconscionable. He
relies on Ingle v. Circuit City Stores, Inc., a case deeming
unilateral power to terminate or modify a contract substantively
unconscionable" under California law. But, the Judge finds that
the Lyft TOS Agreement does not allow unilateral modification; it
requires that Lyft give notice to the user and that the user accept
the new terms.
In contrast, the modification clause in Ingle allowed the employer
to revise the contract's terms and then notify employees months
after the fact. Other courts have rejected the argument that
provisions like Lyft's -- that require notice to users and
acceptance by users -- are substantively unconscionable. Bekele
offers no evidence that a Massachusetts court would consider the
mere presence of a provision allowing the parties to modify their
agreement to be oppressive.
In light of this, Judge Lynch affirmed.
A full-text copy of the Court's March 13, 2019 Order is available
at https://is.gd/Ttz5p7 from Leagle.com.
Shannon Liss-Riordan -- sliss@llrlaw.com -- with whom Adelaide H.
Pagano -- apagano@llrlaw.com -- and Lichten & Liss-Riordan, P.C.
were on brief, for appellant.
Michael Rubin -- mrubin@altshulerberzon.com -- and Altshuler Berzon
LLP on brief for Labor Law Scholars, amici curiae.
Evan M. Tager -- etager@mayerbrown.com -- with whom Archis A.
Parasharami -- aparasharami@mayerbrown.com -- Matthew A. Waring --
mwaring@mayerbrown.com -- and Mayer Brown LLP were on brief, for
appellee.
Bryan K. Weir -- bryan@consovoymccarthy.com -- Thomas R. McCarthy
-- tom@consovoymccarthy.com -- Cameron T. Norris --
cam@consovoymccarthy.com -- Consovoy McCarthy Park PLLC, Steven P.
Lehotsky, Michael B. Schon, and U.S. Chamber Litigation Center on
brief for Chamber of Commerce of the United States of America,
amicus curiae.
MANDARICH LAW: Zheng Files FDCPA Suit in E.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Mandarich Law Group,
LLP. The case is styled as Jamie Zheng individually and on behalf
of all others similarly situated, Plaintiff v. Mandarich Law Group,
LLP, Defendant, Case No. 1:19-cv-01626 (E.D. N.Y., Mar. 21, 2019).
The Plaintiff filed the case under the Fair Debt Collection
Practices Act.
Mandarich Law is engaged in the collection of consumer and
commercial debt.[BN]
The Plaintiff is represented by:
David M. Barshay, Esq.
Craig B. Sanders, Esq.
Barshay Sanders PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Phone: (516) 741-4799
Fax: (516) 706-5055
Email: dbarshay@barshaysanders.com
csanders@barshaysanders.com
MANNKIND CORP: Still Defends Class Action in Tel Aviv
-----------------------------------------------------
MannKind Corporation said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 26, 2019, for
the fiscal year ended December 31, 2018, that the company continues
to defend a class action lawsuit in the district court at Tel Aviv,
Economic Department.
Following the public announcement of Sanofi's election to terminate
the Sanofi License Agreement and the subsequent decline in the
company's stock price, two motions were submitted to the district
court at Tel Aviv, Economic Department for the certification of a
class action against MannKind and certain of the company's officers
and directors.
In general, the complaints allege that MannKind and certain of its
officers and directors violated Israeli and U.S. securities laws by
making materially false and misleading statements regarding the
prospects for Afrezza, thereby artificially inflating the price of
its common stock.
The plaintiffs are seeking monetary damages. In November 2016, the
district court dismissed one of the actions without prejudice. In
the remaining action, the district court ruled in October 2017 that
U.S. law will apply to this case. The plaintiff has appealed this
ruling, and following an oral hearing before the Supreme Court of
Israel, has decided to withdraw his appeal.
Subsequently, in November 2018, the company filed a motion to
dismiss the certification motion in limine. In December 2018, the
district court ordered that the motion to dismiss will be heard
during a pretrial hearing set for February 2019. The Court also
granted the company's motion to postpone its response to the merits
of the certification motion until after the resolution of the
motion to dismiss.
MannKind said, "We will continue to vigorously defend against the
claims advanced."
MannKind Corporation, a biopharmaceutical company, focuses on the
development and commercialization of inhaled therapeutic products
for diabetes and pulmonary arterial hypertension patients. MannKind
Corporation was founded in 1991 and is headquartered in Westlake
Village, California.
MARZUCCO SIGNATURE: LaRosa Sues Over Unsolicited Telemarketing
--------------------------------------------------------------
Christian LaRosa, individually and on behalf of all others
similarly situated, Plaintiff, v. Marzucco Signature Homes and Real
Estate, LLC d/b/a Marzucco Real Estate, Defendant, Case No.
1:19-cv-21067-MGC (S.D. Fla., March 20, 2019) is a putative class
action under the Telephone Consumer Protection Act ("TCPA"),
arising from the Defendant's knowing and willful violations of the
TCPA.
The complaint asserts that the Defendant engages in unsolicited
telemarketing directed towards prospective customers with no regard
for consumers' privacy rights. The Defendant's telemarketing
consists of sending text messages to consumers soliciting them to
purchase and/or list their properties with Defendant.
The Defendant caused thousands of unsolicited text messages to be
sent to the cellular telephones of Plaintiff and Class Members,
causing them injuries, including invasion of their privacy,
aggravation, annoyance, intrusion on seclusion, trespass, and
conversion, says the complaint.
Plaintiff is a natural person who was a resident of Miami-Dade
County, Florida.
Defendant provides real estate brokerage services which includes
the buying and selling of residential real estate.[BN]
The Plaintiff is represented by:
Michael Eisenband, Esq.
EISENBAND LAW, P.A.
515 E. Las Olas Boulevard, Suite 120
Ft. Lauderdale, FL 33301
Phone: 954.533.4092
Email: MEisenband@Eisenbandlaw.com
- and -
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard, Suite 1400
Ft. Lauderdale, FL 33301
Phone: 954.400.4713
Email: mhiraldo@hiraldolaw.com
MASIMO CORP: PHI's Bid for Class Certification Due April 8
----------------------------------------------------------
Masimo Corporation said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 26, 2019, for the
fiscal year ended December 29, 2018, that a court has extended the
deadline for Physicians Healthsource, Inc. (PHI) to file its motion
for class certification to April 8, 2019.
On January 2, 2014, a putative class action complaint was filed
against the Company in the U.S. District Court for the Central
District of California by Physicians Healthsource, Inc. (PHI).
The complaint alleges that the Company sent unsolicited facsimile
advertisements in violation of the Junk Fax Protection Act of 2005
and related regulations. The complaint seeks $500 for each alleged
violation, treble damages if the District Court finds the alleged
violations to be knowing, plus interest, costs and injunctive
relief.
On April 14, 2014, the Company filed a motion to stay the case
pending a decision on a related petition filed by the Company with
the Federal Communications Commission (FCC).
On May 22, 2014, the District Court granted the motion and stayed
the case pending a ruling by the FCC on the petition. On October
30, 2014, the FCC granted some of the relief and denied some of the
relief requested in the Company's petition. Both parties appealed
the FCC's decision on the petition. On November 25, 2014, the
District Court granted the parties' joint request that the stay
remain in place pending a decision on the appeal.
On March 31, 2017, the D.C. Circuit Court of Appeals vacated and
remanded the FCC's decision, holding that the applicable FCC rule
was unlawful to the extent it requires opt-out notices on solicited
faxes. On April 28, 2017, PHI filed a petition seeking rehearing by
the D.C. Circuit Court of Appeals. The D.C. Circuit Court of
Appeals denied the requested rehearing on June 6, 2017.
The plaintiff filed a petition for a writ of certiorari with the
United States Supreme Court on September 5, 2017 seeking review of
the D.C. Circuit Court of Appeals' decision. The Company and the
FCC filed oppositions to this petition on January 16, 2018. On
February 20, 2018, the Supreme Court denied certiorari. T
he District Court lifted the stay on April 9, 2018 and set a trial
date of November 5, 2019. On January 22, 2019, the District Court
extended the deadline for PHI to file its motion for class
certification to April 8, 2019.
Masimo said, "The Company believes it has good and substantial
defenses to the claims in the District Court litigation, but there
is no guarantee that the Company will prevail. The Company is
unable to determine whether any loss will ultimately occur or to
estimate the range of such loss; therefore, no amount of loss has
been accrued by the Company in the accompanying condensed
consolidated financial statements."
Masimo Corporation, a medical technology company, develops,
manufactures, and markets noninvasive monitoring technologies
worldwide. Masimo Corporation was founded in 1989 and is
headquartered in Irvine, California.
MASONITE INTERNATIONAL: Suits over Molded Door Prices Underway
--------------------------------------------------------------
Masonite International Corporation said in its Form 10-K report
filed with the U.S. Securities and Exchange Commission on February
26, 2019, for the fiscal year ended December 30, 2018, that the
company continues to defend two consolidated class action lawsuits
related to alleged price fixing conspiracy related to interior
molded doors.
On October 19, 2018, a purported class action complaint was filed
against us and JELD-WEN, Inc. ("Jeld-Wen") in the United States
District Court for the Eastern District of Virginia, Richmond
Division, alleging, among other things, that defendants conspired
to fix prices on, and to eliminate competition with respect to,
interior molded doors.
The complaint asserts violations of Section 1 of the Sherman Act
and seeks treble damages and costs of suit, including reasonable
attorneys' fees, prejudgment and post-judgment interest, and
injunctive relief.
On December 11, 2018, a purported class action complaint with
substantially similar allegations under various state antitrust or
unfair competition laws and the Sherman Act was filed in the United
States District Court for the Eastern District of Virginia,
Richmond Division, by several individuals and companies purporting
to represent classes of certain indirect purchasers of interior
molded doors.
The complaint seeks damages (including statutory minimum, multiple,
or exemplary damages, where available), reasonable attorneys' fees,
prejudgment and post-judgment interest, and injunctive relief.
Several other complaints with substantially similar allegations
were subsequently filed in the same court by additional plaintiffs
who also sought to represent purported classes of direct or
indirect purchasers seeking similar damages and relief.
These multiple complaints have been consolidated into two
proceedings-one for direct purchasers and another for indirect
purchasers-both before the same judge in the United States District
Court for the Eastern District of Virginia, Richmond Division.
On January 17, 2019 the company filed a motion to transfer the
proceedings from the Eastern District of Virginia to either the
Middle District of Florida or Delaware.
Masonite International said, "We intend to move to dismiss all of
the claims in both the direct purchaser and end-purchaser
complaints. While we intend to defend against these claims
vigorously, there can be no assurance that the ultimate resolution
of this litigation will not have a material, adverse effect on our
consolidated financial condition or results of operations."
Masonite International Corporation designs, manufactures, and
distributes interior and exterior doors for the new construction
and repair, renovation, and remodeling sectors of the residential
and non-residential building construction markets worldwide.
Masonite International Corporation was founded in 1925 and is
headquartered in Tampa, Florida.
MAXAR TECHNOLOGIES: Schwartzs Sue over Misleading Financial Report
------------------------------------------------------------------
HOWARD SCHWARTZ and JILL SCHWARTZ, on Behalf of Themselves and All
Others Similarly Situated, the Plaintiffs, vs. MAXAR TECHNOLOGIES
INC., HOWARD L. LANCE, BIGGS PORTER, and MICHAEL B. WIRASEKARA,
JR., the Defendants, Case No. 1:19-cv-00758 (D. Colo., March 14,
2019), seeks to recover damages caused by Defendants' violations of
the federal securities laws and to pursue remedies under Sections
10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule
10b-5 promulgated thereunder, against the Company and certain of
its top officials.
The case is on behalf of a class consisting of all persons other
than Defendants who purchased or otherwise acquired Maxar
securities between February 22, 2018 through January 7, 2019, both
dates inclusive.
According to the complaint, on October 5, 2017, MacDonald purchased
DigitalGlobe, Inc., an American commercial vendor of space imagery
and geospatial content. MacDonald purchased DigitalGlobe for
approximately $2.3 billion dollars and then rebranded itself as
"Maxar Technologies Ltd." As part of the purchase, the Company
acquired DigitalGlobe's satellites, called the "WorldView Legion",
including the WorldView-4 satellite ("WorldView-4").
WorldView-4 was acquired by GeoEye Inc. prior to its merger with
DigitalGlobe in 2013. WorldView-4 was launched in November 2016 and
generated revenues of approximately $85 million in fiscal year
2018. The satellite had a net book value of approximately $155
million, including related assets, as of December 31, 2018.
WorldView-4 is equipped with control moment gyros ("CMGs"), which
are attitude control devices generally used in spacecraft attitude
control systems. A CMG consists of a spinning rotor and one or more
motorized gimbals that tilt the rotor's angular momentum. As the
rotor tilts, the changing angular momentum causes a gyroscopic
torque that rotates the spacecraft. "Attitude control" refers to
control over a satellite's orientation for their designed and
intended purpose; and (iii) as a result, Maxar's public statements
were materially false and misleading at all relevant times.
On January 2, 2019, Maxar filed a Current Report on Form 8-K with
the SEC. The January 2 Form 8-K announced that on January 1, 2019,
Maxar Technologies Inc., a Delaware corporation ("Maxar U.S."),
became the ultimate parent company of Maxar Technologies Ltd.,
which existed under the laws of the Province of British Columbia
("Maxar Canada").
Throughout the Class Period, Defendants made materially false and
misleading statements regarding the Company's business, operational
and compliance policies. Specifically, Defendants made false and/or
misleading statements and/or failed to disclose that: (i) Maxar
improperly inflated the value of its intangible assets, among other
accounting improprieties; (ii) Maxar's highly-valued WorldView-4
was equipped with CMGs that were faulty and/or ill-suited.
On August 7, 2018, Spruce Point Capital Management published a
research report regarding Maxar. The Spruce Point report alleged,
in part, that Maxar "has pulled one of the most aggressive
accounting schemes Spruce Point has ever seen to inflate Non-IFRS
earnings by 79%." Specifically, the report asserted that Maxar had
used its acquisition of DigitalGlobe "to inflate [its] intangible
assets" and had "amended its post-retirement benefit plan to book
one-time gains" in a manner that "was not fully disclosed across
its investor communications."
Following publication of the Spruce Point report, Maxar's stock
price fell $5.97 per share, or 13.44%, to close at $38.44 on August
7, 2018. On January 7, 2019, on Current Report Form 8-K filed with
the SEC, Maxar disclosed that WorldView-4 experienced a failure in
its CMGs, preventing the satellite from collecting imagery due to
the loss of an axis of stability. It was further disclosed that
WorldView-4 will likely not be recoverable and will no longer
produce usable imagery. Following this announcement, the Company's
stock price fell $5.69 per share, or 48.5%, over the following two
trading sessions, to close at $6.03 per share on January 8, 2019.
As a result of Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's
securities, the Plaintiffs and other Class members have suffered
significant losses and damages, the lawsuit says.[BN]
Maxar is a leading global provider of advanced space technology
solutions for commercial and government markets including
satellites, Earth imagery, geospatial data and analytics, at the
nexus of the new space economy, developing and sustaining its
infrastructure and delivering the products, services, systems and
solutions. Maxar was founded in 1969 and is based in Westminster,
Colorado. Prior to 2017, Maxar was doing business under the name
MacDonald, Dettwiler and Associates Ltd., and the Company's common
shares traded on the Toronto Stock Exchange ("TSX") under the
ticker symbol "MDA." During the second quarter of 2017, the Company
successfully registered its common shares with the SEC and Maxar
began trading as a dual-listed company on both the TSX and the New
York Stock Exchange under the symbol "MAXR."[BN]
Attorneys for the Plaintiffs:
Jeffrey A. Berens, Esq.
BERENS LAW LLC
2373 Central Park Boulevard, Suite 100
Denver, CO 80238
Telephone: (303) 861-1764
Facsimile: (303) 395-0393
E-mail: jeff@jberenslaw.com
- and -
Thomas L. Laughlin, IV, Esq.
Rhiana L. Swartz, Esq.
SCOTT+ SCOTT
ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
Facsimile: (212) 223-6334
E-mail: tlaughlin@scott-scott.com
rswartz@scott-scott.com
- and -
Michael E. Criden
Lindsey C. Grossman
CRIDEN & LOVE, P.A.
7301 SW 57th Court, Suite 515
South Miami, FL 33143
Telephone: (305) 357-9000
Facsimile: (305) 357-9050
E-mail: mcriden@cridenlove.com
lgrossman@cridenlove.com
MCCLATCHY CO: Third Phase Trial in Sawin Case to Begin May 20
-------------------------------------------------------------
The McClatchy Company said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 8, 2019, for the
fiscal year ended December 30, 2018, that the third phase of the
trial in the case, Sawin v. The McClatchy Company, has been
scheduled to begin on May 20, 2019.
In December 2008, carriers of The Fresno Bee filed a class action
lawsuit against the company and The Fresno Bee in the Superior
Court of the State of California in Fresno County captioned Becerra
v. The McClatchy Company ("Fresno case") alleging that the carriers
were misclassified as independent contractors and seeking mileage
reimbursement.
In February 2009, a substantially similar lawsuit, Sawin v. The
McClatchy Company, involving similar allegations was filed by
carriers of The Sacramento Bee ("Sacramento case") in the Superior
Court of the State of California in Sacramento County. The class
consists of roughly 5,000 carriers in the Sacramento case and 3,500
carriers in the Fresno case.
The plaintiffs in both cases are seeking unspecified restitution
for mileage reimbursement. With respect to the Sacramento case, in
September 2013, all wage and hour claims were dismissed, and the
only remaining claim is an equitable claim for mileage
reimbursement under the California Civil Code. In the Fresno case,
in March 2014, all wage and hour claims were dismissed, and the
only remaining claim is an equitable claim for mileage
reimbursement under the California Civil Code.
The court in the Sacramento case trifurcated the trial into three
separate phases: independent contractor status, liability and
restitution. On September 22, 2014, the court in the Sacramento
case issued a tentative decision following the first phase, finding
that the carriers that contracted directly with The Sacramento Bee
during the period from February 2005 to July 2009 were
misclassified as independent contractors. The company objected to
the tentative decision, but the court ultimately adopted it as
final. In June 2016, The McClatchy Company was dismissed from the
lawsuit, leaving The Sacramento Bee as the sole defendant.
On August 30, 2017, the court issued a statement of decision ruling
that the court would not hold a phase two trial but would, instead,
assume liability from the evidence previously submitted and from
the independent contractor agreements. The company objected to this
decision, but the court adopted it as final. The third phase has
been scheduled to begin on May 20, 2019.
The court in the Fresno case bifurcated the trial into two separate
phases: the first phase addressed independent contractor status and
liability for mileage reimbursement and the second phase was
designated to address restitution, if any. The first phase of the
Fresno case began in the fourth quarter of 2014 and concluded in
late March 2015. On April 14, 2016, the court in the Fresno case
issued a statement of final decision in favor of us and The Fresno
Bee. Accordingly, there will be no second phase. The plaintiffs
filed a Notice of Appeal on November 10, 2016.
The company continues to defend these actions vigorously and expect
that we will ultimately prevail.
McClatchy said, "As a result, we have not established a reserve in
connection with the cases. While we believe that a material impact
on our consolidated financial position, results of operations or
cash flows from these claims is unlikely, given the inherent
uncertainty of litigation, a possibility exists that future adverse
rulings or unfavorable developments could result in future charges
that could have a material impact. We have and will continue to
periodically reexamine our estimates of probable liabilities and
any associated expenses and make appropriate adjustments to such
estimates based on experience and developments in litigation."
The McClatchy Company provides news and advertising services in
digital and print formats in the United States. Its publications
include the Miami Herald, The Kansas City Star, The Sacramento Bee,
The Charlotte Observer, The (Raleigh) News and Observer, The (Fort
Worth) Star-Telegram, and The (Durham, NC) Herald-Sun. The
McClatchy Company was founded in 1857 and is headquartered in
Sacramento, California.
MDL 2820: Monsanto Wins Bid to Dismiss Dicamba Herbicides Suit
--------------------------------------------------------------
In the case, IN RE: DICAMBA HERBICIDES LITIGATION, MDL No. 2820
(E.D. Mo.), Judge Stephen N. Limbaugh, Jr. of the U.S. District
Court for the Eastern District of Missouri, Southeastern Division,
(i) granted Defendant Monsanto's motion to dismiss; and (ii)
dismissed without prejudice the Plaintiffs' complaint.
The Plaintiffs in the Multi-District Litigation filed a three-count
Antitrust Class Action Master Complaint against Defendant Monsanto
Co. on Aug. 1, 2018. The Plaintiffs are Sam Branum, a citizen of
Missouri who farms soybeans and other crops in Missouri, and Wapsie
Farms Partnership, a farm located in Iowa.
In 2016, Defendant Monsanto released for sale Xtend seeds
containing an herbicide-tolerant genetic trait that would allow the
crop to survive application of both Roundup herbicide and dicamba
herbicide. Dicamba had previously not been used over-the-top of
crops because it is volatile and prone to moving off-target,
harming non-resistant plants. Monsanto, as part of an alleged
joint venture with BASF Corp. (a producer of dicamba herbicide),
developed a "new" dicamba, XtendiMax with VaporGrip Technology,
that was supposed to be less prone to volatility and drift.
The Plaintiffs claim that although the Xtend seeds do indeed
survive application of dicamba (and XtendiMax), the application of
dicambabased herbicides (whether XtendiMax or not) to the Xtend
seeds results in damage to neighboring, non-resistant crops due to
drift. Because of their fear of crop damage, the Plaintiffs allege
that they and other farmers are forced to defensively purchase and
plant Xtend seeds, which cost more than other seeds. As a result,
as they claim, Monsanto has artificially increased demand for its
Xtend seeds and has reaped monopolistic profits that it otherwise
would not have.
The Plaintiffs purport to represent a class of persons and entities
in the United States who, after 2015, were direct purchases of
Monsanto's dicamba-tolerant traits in soybean seeds. Count I of
the complaint is for furtherance of a monopoly. Count II is for
attempt to monopolize. Count III is for conspiracy to monopolize.
All three counts are for violations of Section 2 of the Sherman
Act, 15 U.S.C. Section 2.
Monsanto has moved to dismiss. It contends that the Antitrust
Master Class Action Complaint must be dismissed for three reasons:
(1) the Plaintiffs lack standing because they are indirect
purchasers, (2) they fail to plead a plausible antitrust violation,
and (3) the Plaintiffs fail to adequately plead willfulness,
specific intent to monopolize, and conspiracy.
The Plaintiffs thus insist that the Monsanto Technology/Stewardship
Agreement ("MTSA"), entered into with Monsanto, makes the
Plaintiffs "direct purchasers" of the Monsanto Technology -- the
trait -- such that they have standing under Illinois Brick.
Judge Limbaugh disagrees. He finds that the Plaintiffs have not
adequately pleaded that they were direct purchasers of the seed or
even the trait. The Fourth Circuit addressed an analogous
situation in which purchasers of computers with Microsoft software
sued Microsoft for its monopolistic behaviors that resulted in
computer purchasers paying artificially inflated prices for
computers. Consumers did not purchase software directly from
Microsoft, but rather they bought computers from retailers with
pre-installed Microsoft software. As part of the transaction, the
purchaser was required to enter into a license agreement with
Microsoft. The Fourth Circuit held that although the license may
establish a direct relationship between Microsoft and the consumer,
that relationship is not sufficient to make the consumer a 'direct
purchaser' within the meaning of Illinois Brick. The court added
that the Kloth plaintiffs stand at the end of a distribution chain
in which the intermediaries have independently set prices and
passed on alleged overcharges. Accordingly, the plaintiffs lacked
antitrust standing against Microsoft.
As a fallback position, the Plaintiffs suggest that an "agency"
exception to the direct purchaser rule should apply to save their
complaint, relying on Blades v. Monsanto Co. In Blades, like the
case at hand, the plaintiffs brought antitrust claims against
Monsanto after buying genetically modified seed from an independent
dealer licensed by Monsanto. However, the direct purchaser
requirement was not at issue in the Blades opinion, which addressed
a matter of class certification.
Even if such an agency exception were recognized, the Judge finds
that the Plaintiffs have not pleaded that they purchased the seeds,
or the traits, from an agent of Monsanto. Unlike the scenario in
the Blades footnote, the Plaintiffs do not allege that they were
separately invoiced for the technology fee or that they paid the
fee. And again, inexplicably, they do not even identify the seller
of the seed. All in all, any theoretical agency relationship is
simply too conclusory to support the cause of action. Ultimately,
he says the Plaintiffs' allegations do not support that they were a
direct purchaser of the seeds, or even the traits. As a result,
their complaint must be dismissed, and the Judge need not consider
the Defendant's other arguments in favor of dismissal.
Accordingly, Judge Limbaugh granted Defendant Monsanto's motion to
dismiss, and dismissed without prejudice the Plaintiffs'
complaint.
A full-text copy of the Court's March 13, 2019 Memorandum and Order
is available at https://is.gd/nYhH6W from Leagle.com.
John S. Hahn, Special Master, pro se.
Bader Farms, Inc. & Bill Bader, Plaintiffs, represented by Angela
Marie Splittgerber -- angie@randleslaw.com -- RANDLES AND
SPLITTGERBER, LLP, Beverly Turina Randles -- bev@randleslaw.com --
RANDLES AND SPLITTGERBER, LLP, Billy R. Randles --
bill@randleslaw.com -- RANDLES AND SPLITTGERBER, LLP & Don M.
Downing, GRAY AND RITTER, P.C.
Steven Wayne Landers & Deloris Irene Landers, Plaintiffs,
represented by Angela Marie Splittgerber, RANDLES AND
SPLITTGERBER,
LLP, Beverly Turina Randles, RANDLES AND SPLITTGERBER, LLP, Billy
R. Randles, RANDLES AND SPLITTGERBER, LLP, Don M. Downing, GRAY
AND
RITTER, P.C., Hal E. Hunter, IV, HUNTER LAW FIRM, LLP, Lawrence
Benjamin Mook -- ben@dgmlawyers.com -- DAVIS AND GEORGE LLC &
Richard Monroe Paul, III, PAUL LLP.
Wimberley Farms LLC, Ann Schuchart, Emil Schuchart, Trustees of
the
Ann Schuchart Trust and Emil Schuchart Trust & Bumper Crop Farms,
LLC, On Behalf of Themselves and all Others Similarly Situated And
the Class They Seek to Represent, Plaintiffs, represented by
Angela
Marie Splittgerber, RANDLES AND SPLITTGERBER, LLP, Billy R.
Randles, RANDLES AND SPLITTGERBER, LLP, Don M. Downing, GRAY AND
RITTER, P.C. & Richard Monroe Paul, III, PAUL LLP.
Smokey Alley Farm Partnership, Amore Farms, JTM Farms Partnership,
Kenneth Loretta Garrett Qualls Farm Partnership, Qualls Land Co.,
McLemore Farms LLC & Michael Baioni, Plaintiffs, represented by
Brandon Michael Wise, PEIFFER WOLF, APLC, Don M. Downing, GRAY AND
RITTER, P.C., Michael G. Smith, DOVER AND DIXON, PLLC, Paul J.
James, JAMES AND CARTER, LLP, Paul A. Lesko, PEIFFER WOLF, APLC &
Richard Monroe Paul, III, PAUL LLP.
BASF Corporation, Defendant, represented by Alan L. Rupe --
Alan.Rupe@lewisbrisbois.com -- LEWIS BRISBOIS, LLP, Charles N.
Insler -- cinsler@heplerbroom.com -- HEPLER BROOM, E. B. Chiles,
IV
-- cchiles@qgtlaw.com -- Quattlebaum, Grooms & Tull PLLC, Jason D.
Stitt -- Jason.Stitt@lewisbrisbois.com -- Lewis Brisbois Bisgaard
&
Smith, LLP, John P. Mandler -- john.mandler@FaegreBD.com -- FAEGRE
AND BAKER LLP, John E. Tull, III -- jtull@qgtlaw.com --
Quattlebaum, Grooms & Tull PLLC, Ross W. Johnson --
ross.johnson@FaegreBD.com -- FAEGRE AND BAKER LLP, Tarifa Belle
Laddon -- tarifa.laddon@FaegreBD.com --, FAEGRE AND BAKER LLP,
Thomas J. Magee -- tmagee@heplerbroom.com -- HEPLER BROOM, Troy A.
Bozarth -- tbozarth@heplerbroom.com -- HEPLER BROOM, Carolyn A.
Gunkel -- carolyn.gunkel@FaegreBD.com -- FAEGRE AND BAKER LLP &
Shane Alan Anderson -- shane.anderson@FaegreBD.com -- FAEGRE AND
BAKER LLP.
Monsanto Company, Defendant, represented by Ann E.
Sternhell-Blackwell, BRYAN CAVE LLP, Christopher M. Hohn, THOMPSON
COBURN, LLP, Daniel C. Cox, THOMPSON COBURN, LLP, Jan P. Miller,
THOMPSON COBURN, LLP, Jan P. Miller, THOMPSON COBURN, LLP, Pro Hac
Vice, Jeffrey A. Masson, THOMPSON COBURN, LLP, John R. Musgrave,
THOMPSON COBURN, LLP, John J. Rosenthal, WINSTON AND STRAWN, LLP,
Booker T. Shaw, THOMPSON COBURN, LLP & Kimberly M. Bousque,
THOMPSON COBURN, LLP.
E.I. DuPont De Nemours and Company & Pioneer Hi-Bred
International,
Inc., Defendants, represented by Amie A. Vague, Lightfoot,
Franklin
& White, LLC, C. David Goerisch, LEWIS RICE, LLC, Jeffrey P. Doss,
LIGHTFOOT AND FRANKLIN, L.L.C., John Mann Johnson, LIGHTFOOT AND
FRANKLIN, L.L.C., R. Brad Ziegler, LEWIS RICE, LLC, Richard B.
Walsh, Jr., LEWIS RICE, LLC & Sonette T. Magnus , LEWIS RICE,
LLC.
Robert Shaun Bennett, individually and as representative of RSB
Farming, Defendant, represented by Heather G. Zachary, Williams &
Anderson, PLC, Jerry O. Kelly, KELLY LAW FIRM, P.C., John Paul
Byrd, PAUL BYRD LAW FIRM, PLLC, Joseph Reid Byrd, Duncan Firm,
Joseph D. Gates, PAUL BYRD LAW FIRM, PLLC, Phillip J. Duncan,
Richard Lee Quintus, DUNCAN FIRM, PA., Timothy Paul Reed, Duncan
Firm & William R. Pointer, II, Duncan Firm.
BASF Plant Science LP, Defendant, represented by Alan L. Rupe,
LEWIS BRISBOIS, LLP, E. B. Chiles, IV, Quattlebaum, Grooms & Tull
PLLC, Jason D. Stitt, Lewis Brisbois Bisgaard & Smith, LLP, John
P.
Mandler, FAEGRE AND BAKER LLP & John E. Tull, III, Quattlebaum,
Grooms & Tull PLLC.
MDL 2846: All Claims v. C.R. Bard/Davol Moved to Transferor Court
-----------------------------------------------------------------
In the case, IN RE: DAVOL, INC./C.R. BARD, INC., POLYPROPYLENE
HERNIA MESH PRODUCTS LIABILITY LITIGATION. (PC) Greschner v.
California Department of Corrections & Rehabilitation, et al., S.D.
Ohio, C.A. No. 2:18-00769 (E.D. California, C.A. No. 2:15-01663),
MDL No. 2846 (JPML), the U.S. Judicial Panel on Multidistrict
Litigation separated and remanded all claims filed against any
Defendant other than C.R. Bard, Inc. and Davol, Inc. to the
transferor court.
The transferee court in the litigation has advised that the Panel
remand to the transferor court of certain claims in the action on
the conditional remand order is appropriate. It appears that the
Plaintiff has asserted two sets of claims in the action: (1)
product liability claims against defendants C.R. Bard and Davol for
defective surgical hernia mesh; and (2) claims against the other
Defendants, including constitutional law violations pursuant to 42
U.S.C. Section 1983, negligence under California Civil Code Section
1714(a), and medical malpractice pursuant to California Civil Code
Section 1714(a). The transferee court's Order and Suggestion of
Remand recommends that all claims against the non-hernia mesh
Defendants be remanded.
The Panel ordered the all claims filed against any Defendant other
than C.R. Bard and Davol are separated and remanded to the
transferor court.
Pursuant to Rule 10.2 of the Rules of Procedure of the United
States Judicial Panel on Multidistrict Litigation, the transmittal
of the Order to the transferee clerk for filing will be stayed
seven days from the date of the Order. If any party files a notice
of opposition with the Clerk of the Panel within the seven-day
period, the stay will be continued until further order of the
Panel. The order does not become effective until it is filed in
the office of the Clerk for the U.S. District Court for the
Southern District of Ohio.
Pursuant to Rule 10.4(a), the parties will furnish the Clerk for
the Southern District of Ohio with a stipulation or designation of
the contents of the record to be remanded.
A full-text copy of the Court's March 13, 2019 Order is available
at https://is.gd/bgvHpr from Leagle.com.
MERIDIAN BIOSCIENCE: Securities Class Action Dismissed
------------------------------------------------------
Ambrogio Visconti, writing for Global Legal Chronicle, reports that
Paul, Weiss secured the dismissal of a putative securities class
action against Meridian Bioscience, an Ohio-based life science
company.
In March 2016, Meridian acquired Magellan Diagnostics, a
manufacturer of blood testing kits. In May 2017, the Food and Drug
Administration (FDA) recalled Magellan's venous testing products,
finding that they could produce inaccurate test results. In October
2017, the FDA sent Magellan a "warning letter" stating that
Magellan had not adequately notified the FDA of certain customer
complaints and remedial measures implemented to address potentially
inaccurate results. Meridian's stock price declined after these
events were disclosed.
Subsequently, a Meridian shareholder filed a putative class action
in the Southern District of Ohio against Meridian and two senior
executives alleging that Meridian made false or misleading
statements about the accuracy of Magellan's products despite
allegedly knowing of the issues with venous testing products the
FDA had previously identified. In particular, the complaint alleged
that the defendants engaged in securities fraud by making false or
misleading statements between March 2016 and October 2017 about the
regulatory compliance of Magellan's products, the safety and
efficacy of Magellan's products, and Meridian's internal controls.
Meridian moved for dismissal, arguing that the complaint did not
properly allege any false or misleading statements or sufficient
facts to support a strong inference of scienter. Echoing many of
our arguments, U.S. District Judge Susan J. Dlott granted the
defendants' motion to dismiss in its entirety.
The Paul, Weiss team included litigation partners Daniel Kramer
-- dkramer@paulweiss.com -- and Gregory Laufer.
Involved fees earner: Daniel Kramer -- Paul Weiss Rifkind Wharton &
Garrison; Gregory Laufer -- glaufer@paulweiss.com -- Paul Weiss
Rifkind Wharton & Garrison;
Law Firms: Paul Weiss Rifkind Wharton & Garrison;
Clients: Meridian Bioscience Inc. [GN]
MIDLAND CREDIT: Can Compel Arbitration in S. Brecher's FDCA Suit
----------------------------------------------------------------
In the case, SARA BRECHER, on behalf of herself and all other
similarly situated customers, Plaintiff, v. MIDLAND CREDIT
MANAGEMENT, INC., MIDLAND FUNDING, LLC, and ENCORE CAPITAL GROUP,
INC., defendants, Case No. 18-CV-3142 (ERK) (JO) (E.D. N.Y.), Judge
Edward K. Korman of the U.S. District Court for the Eastern
District of New York granted the Defendants' motion to compel
arbitration on an individual basis.
Hoping to save some money while on a shopping excursion, Plaintiff
Brecher signed up for an Old Navy credit card in November 2008.
The cashier informed Brecher that she could use her credit account
immediately, even without the yet-to-beissued card, if she provided
a photo ID and her social security number. Although Brecher claims
she never received a physical credit card or any agreement
associated with the account, she continued to use the account by
providing her ID and social security number when she patronized Old
Navy outlets. Brecher used the credit line with Old Navy for at
least seven years, until 2015. Nevertheless, she insists that,
during that time, she never received the credit card nor any
agreement in the mail associated with an Old Navy account.
When Brecher opened her Old Navy account, it was serviced by GE
Money Bank. Since then, GE Money Bank has gone through a series of
rechristenings. Specifically, in October 2011, GE Money Bank
changed its name to GE Capital Retail Bank, and, in June 2014, it
was rebranded once more as Synchrony Bank. Then, in July 2016,
Midland acquired Brecher's credit card account from Synchrony Bank.
As part of the transaction, Midland acquired various electronic
records from Synchrony, along with the right to collect any
outstanding debts and enforce the terms of the Agreement.
Shortly after Brecher signed up for the Old Navy account in 2008,
Synchrony -- operating at the time under the name GE Money Bank --
mailed an agreement and credit card to her, although she claims she
never received it. That agreement contained an authorization to
change the terms of the agreement, an arbitration provision, and a
class action waiver. The Initial Agreement bears the title "Old
Navy Rewards Program Terms and Conditions," but defines "Old Navy"
to include "all of its respective parents, subsidiaries,
affiliates, predecessors, successors, assigns, employees, officers
and directors." Elsewhere, the Initial Agreement refers to Gap,
Inc., Old Navy's parent, in various liability release provisions.
In 2012, Synchrony -- at the time operating under the name GE
Capital Retail Bank -- mailed an updated agreement to Brecher
containing both an arbitration provision and a class action waiver.
The Agreement is titled "Gap, Inc. Credit Card Account Agreement,"
but governs "Old Navy Credit Card Accounts" as well.
Brecher's Complaint centers on a collection letter she received
from Midland in 2017 seeking to collect on her outstanding balance
with Old Navy. She alleges that the letter, which identified the
amount owed as her "Current Balance" without "clearly stating
either that the amount will or will not increase, caused her to
suffer tremendous stress, and constitutes a violation of the
Federal Debt Collection Practices Act ("FDCPA").
Specifically, she argues that the FDCPA requires debt collectors to
disclose that the balance may increase due to interest and fees,
although she does not suggest that her balance ever increased. She
filed the class action suit seeking statutory damages and
attorney's fees. Midland contends that Brecher agreed to resolve
all disputes by arbitration and waived her right to proceed by
class action. Brecher submits that she never received the relevant
credit agreement, let alone assented to its arbitration and class
action waiver provisions.
Preliminarily, Brecher challenges the admissibility of the
Defendants' affidavits and attached exhibits submitted in support
of their motion to compel arbitration. Midland offers two
affidavits: Martha Koehler's and Sean Mulcahy's. Koehler's
affidavit states that she is a Litigation Support Manager at
Synchrony, has personal knowledge of the business records of
Synchrony, and is authorized to declare and certify on behalf of
Synchrony. Mulcahy's affidavit contains similar information.
Judge Korman finds that Koehler and Mulcahy's affidavits and the
attached exhibits are admissible. Both have demonstrated that they
are qualified witnesses or custodians, that the statements are
based on personal knowledge or their review of their respective
employer's business records, and that the documents were kept in
the ordinary course of business, as required to lay a proper
foundation for the admission of a business record. Moreover,
Brecher has failed to show that the proffered affidavits and
exhibits lack trustworthiness. In sum, both Koehler's and
Mulcahy's affidavits and the attached exhibits are admissible, and
the Judge considers them in deciding the instant motion.
Brecher's central objection to Midland's motion to compel
arbitration is that no agreement to arbitrate exists. First, the
JUdge finds that Midland has sufficiently demonstrated that it
mailed the Initial Agreement to Brecher and that she received it.
Second, Brecher agreed to the terms of the Initial Agreement. She
also consented to abide by the terms of the Agreement. Finally, he
finds that Brecher did not merely continue to owe money after
receiving the amended Agreement. Rather, she made payments after
receiving the Agreement. This is sufficient to bind her to its
terms, including the arbitration provision.
The Judge holds that even if the Initial Agreement was with Old
Navy and GE Capital Retail Bank, the legal right to collect on the
debt properly passed to Synchrony Bank and, ultimately, Midland.
Brecher used her credit account both before and after she received
the Agreement, binding her to its terms as well. Thus, a valid
agreement to arbitrate exists.
Next, Brecher offers no other persuasive evidence and has failed to
demonstrate that there is any meaningful dispute as to whether
Synchrony assigned her account to Midland. Accordingly, Midland
may enforce the arbitration provision. Brecher also does not
meaningfully challenge the validity of the arbitration provision
and class waiver or argue that her claims are outside of their
scope. Nor could she. In the absence of any express provision
excluding a particular grievance from arbitration only the most
forceful evidence of a purpose to exclude the claim from
arbitration can prevail.
Finally, although the Defendants seek dismissal of the Plaintiff's
claims, the FAA mandates a stay of proceedings when all of the
claims in an action have been referred to arbitration.
Bases on the foregoing, Judge Korman granted the Defendants' motion
to compel arbitration on an individual basis. The Plaintiff's
class action claims are dismissed. Her remaining claims are stayed
until such arbitration has been held.
A full-text copy of the Court's March 13, 2019 Memorandum and Order
is available at https://is.gd/4FxYqM from Leagle.com.
Sara Brecher, on behalf of herself and all other similarly situated
consumers, Plaintiff, represented by Julius Toonkel, Law Office of
Julius Toonkel & Maxim Maximov -- m@maximovlaw.com -- Maxim
Maximov, LLP.
Midland Credit Management, Inc., Midland Funding, LLC & Encore
Capital Group, Inc., Defendants, represented by Ellen Beth
Silverman -- esilverman@hinshawlaw.com -- Hinshaw & Cullertson &
Matthew B. Corwin -- mcorwin@hinshawlaw.com -- Hinshaw &
Culbertson, LLP.
MORGAN STANLEY: Alaska Electrical Pension Fund's Suit Concluded
---------------------------------------------------------------
Morgan Stanley said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 26, 2019, for the
fiscal year ended December 31, 2018, that the court in the case,
Alaska Electrical Pension Fund v. Bank of America Corporation et
al., has entered a final judgment and order granting final approval
of the settlement and dismissing the action as to the Firm and the
other remaining defendants.
On October 20, 2014, a purported class action complaint was filed
against the Firm and other defendants styled Genesee County
Employees' Retirement System v. Bank of America Corporation et al.
in the Southern District of New York (SDNY).
The action was later consolidated with four similar actions in SDNY
under the lead case styled Alaska Electrical Pension Fund v. Bank
of America Corporation et al. A consolidated amended complaint was
filed on February 2, 2015 asserting claims for alleged violations
of the Sherman Act, breach of contract, breach of the implied
covenant of good faith and fair dealing, unjust enrichment, and
tortious interference with contract.
The consolidated amended complaint alleges, among other things,
that the defendants engaged in antitrust violations with regards to
the process of setting ISDAfix, a financial benchmark and seeks
treble damages, injunctive relief, attorneys' fees and other
relief.
On June 22, 2018, the parties entered into an agreement to settle
the litigation. On November 13, 2018, the court entered a final
judgment and order granting final approval of the settlement and
dismissing the action as to the Firm and the other remaining
defendants.
Morgan Stanley, a financial holding company, provides various
financial products and services to corporations, governments,
financial institutions, and individuals in the Americas, Europe,
the Middle East, Africa, and Asia. The company operates through
Institutional Securities, Wealth Management, and Investment
Management segments. Morgan Stanley was founded in 1924 and is
headquartered in New York, New York.
MORGAN STANLEY: Continues to Defend Iowa PERS Suit
--------------------------------------------------
Morgan Stanley said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 26, 2019, for the
fiscal year ended December 31, 2018, that the company continues to
defend a purported antitrust class action suit entitled, Iowa
Public Employees' Retirement System et al. v. Bank of America
Corporation et al.
In August 2017, the Firm was named as a defendant in a purported
antitrust class action in the United States District Court for the
SDNY styled Iowa Public Employees' Retirement System et al. v. Bank
of America Corporation et al.
Plaintiffs allege, inter alia, that the Firm, together with a
number of other financial institution defendants, violated U.S.
antitrust laws and New York state law in connection with their
alleged efforts to prevent the development of electronic
exchange-based platforms for securities lending. The class action
complaint was filed on behalf of a purported class of borrowers and
lenders who entered into stock loan transactions with the
defendants.
The class action complaint seeks, among other relief, certification
of the class of plaintiffs and treble damages.
On September 27, 2018, the court denied the defendants' motion to
dismiss the class action complaint.
No further updates were provided in the Company's SEC report.
Morgan Stanley, a financial holding company, provides various
financial products and services to corporations, governments,
financial institutions, and individuals in the Americas, Europe,
the Middle East, Africa, and Asia. The company operates through
Institutional Securities, Wealth Management, and Investment
Management segments. Morgan Stanley was founded in 1924 and is
headquartered in New York, New York.
NAVISTAR INTERNATIONAL: MaxxForce Engine Suits in Canada Ongoing
----------------------------------------------------------------
Navistar International Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on March 8, 2019,
for the quarterly period ended January 31, 2019, that the company
continues to defend itself from putative class action lawsuits
filed in Canada in connection with the MaxxForce Engine EGR
Warranty Litigation.
On June 24, 2014, N&C Transportation Ltd. ("N&C") filed a putative
class action lawsuit against NIC, NI, Navistar Canada Inc., and
Harbour International Trucks in Canada in the Supreme Court of
British Columbia (the "N&C Action").
Subsequently, seven additional, similar putative class action
lawsuits have been filed in Canada (together with the N&C Action,
the "Canadian Actions").
From June 13-17, 2016, the court conducted a certification hearing
in the N&C Action. On November 16, 2016, the court certified a
Canada-wide class comprised of persons who purchased heavy-duty
trucks equipped with Advanced EGR MaxxForce 11, MaxxForce 13, and
MaxxForce 15 engines designed to meet 2010 EPA regulations. The
court in the N&C Action denied certification to persons who
operated but did not buy the trucks in question. On November 2,
2017, NIC, NI, Navistar Canada Inc. and Harbour International
Trucks filed a notice of appeal.
On December 8, 2017, the plaintiff filed a notice of cross-appeal.
Both the appeal and cross-appeal were heard by the British Columbia
Court of Appeal on February 9, 2018. On August 1, 2018, the
appellate court denied the company'sappeal and granted, in part,
N&C's cross-appeal and as such certified three narrow issues on
whether misrepresentations were made in Navistar's advertising
materials.
On September 28, 2018, Navistar sought leave to appeal the
certification decision to the Supreme Court of Canada and such
leave is still pending. Aside from that application, the next step
will be an attendance before the case management judge regarding
the details of the notice of certification to be given to the
class. No date for this attendance has been set.
On June 5, 2017, a hearing was held in the Quebec putative class
action lawsuit captioned 4037308 Canada Inc. v. Navistar Canada
Inc., NI, and NIC. At that hearing, the court ruled on certain
motions regarding evidence related to certification but deferred a
ruling on plaintiff's proposed amendment to narrow the proposed
class to Quebec-only purchasers and lessees of model year 2010-13
vehicles containing MaxxForce 11, 13, and 15 liter engines.
On November 23, 2017, the company filed a motion to stay the Quebec
case until the British Columbia Court of Appeal rules on the
certification order in the N&C Action. The stay motion was granted
on December 7, 2017. The decision of the British Columbia Court of
Appeal was provided to the Quebec court.
On September 6, 2018, the stay was extended until the Supreme Court
of Canada decides the application for leave to appeal in the N&C
Action.
In the Manitoba putative class action lawsuit captioned Vern Brown
v. Navistar International Corporation and Navistar Canada, Inc.,
the court held a case management conference on June 29, 2018, after
the plaintiff failed to file a complete certification record by the
previously court-ordered due date.
The plaintiff advised that it expected to file its remaining
certification affidavits by August 31, 2018, and the court
suspended certification scheduling in the interim. The plaintiff
filed an additional affidavit on July 5, 2018. On September 5,
2018, the court adjourned the certification application
indefinitely to allow the plaintiff to obtain an expert report.
Navistar International said, "There are no certification or other
hearings scheduled in any of the other Canadian Actions at this
time."
Navistar International Corporation, through its subsidiaries,
manufactures and sells commercial and military trucks, diesel
engines, school and commercial buses, and service parts for trucks
and diesel engines worldwide. The company operates through four
segments: Truck, Parts, Global Operations, and Financial Services.
Navistar International Corporation was founded in 1902 and is
headquartered in Lisle, Illinois.
NAVISTAR INTERNATIONAL: U.S. EGR Warranty-Related Suits Ongoing
---------------------------------------------------------------
Navistar International Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on March 8, 2019,
for the quarterly period ended January 31, 2019, that the company
continues to defend itself in the EGR Warranty Litigation-Related
Suits.
On July 7, 2014, Par 4 Transport, LLC filed a putative class action
lawsuit against NI in the United States District Court for the
Northern District of Illinois (the "Par 4 Action").
Subsequently, seventeen additional putative class action lawsuits
were filed in various United States district courts, including the
Northern District of Illinois, the Eastern District of Wisconsin,
the Southern District of Florida, the Middle District of
Pennsylvania, the Southern District of Texas, the Western District
of Kentucky, the District of Minnesota, the Northern District of
Alabama, and the District of New Jersey (together with the Par 4
Action, the "U.S. Actions").
Some of the U.S. Actions name both NIC and NI, and allege matters
substantially similar to the Canadian Actions. More specifically,
the Canadian Actions and the U.S. Actions (collectively, the "EGR
Class Actions") seek to certify a class of persons or entities in
Canada or the United States who purchased and/or leased a ProStar
or other Navistar vehicle equipped with a model year 2008-2013
MaxxForce Advanced EGR engine.
In substance, the EGR Class Actions allege that the MaxxForce
Advanced EGR engines are defective and that the Company and NI
failed to disclose and correct the alleged defect. The EGR Class
Actions assert claims based on theories of contract, breach of
warranty, consumer fraud, unfair competition, misrepresentation and
negligence. The EGR Class Actions seek relief in the form of
monetary damages, punitive damages, declaratory relief, interest,
fees, and costs.
On October 3, 2014, NIC and NI filed a motion before the United
States Judicial Panel on Multidistrict Litigation (the "MDL Panel")
seeking to transfer and consolidate before Judge Joan B. Gottschall
of the United States District Court for the Northern District of
Illinois all of the then-pending U.S. Actions, as well as certain
non-class action MaxxForce Advanced EGR engine lawsuits pending in
various federal district courts.
On December 17, 2014, Navistar's motion to consolidate the U.S.
Actions and certain other non-class action lawsuits was granted.
The MDL Panel issued an order consolidating all of the U.S. Actions
that were pending on the date of Navistar's motion before Judge
Gottschall in the United States District Court for the Northern
District of Illinois (the "MDL Action").
The MDL Panel also consolidated into the MDL Action certain
non-class action MaxxForce Advanced EGR engine lawsuits pending in
the various federal district courts. Non-class federal lawsuits
presenting pre-trial issues similar to the MDL Action continue to
be transferred to the MDL Action. Approximately 27 such actions are
currently pending.
At the request of the various law firms representing the plaintiffs
in the MDL Action, on March 5, 2015, Judge Gottschall entered an
order in the MDL Action appointing interim lead counsel and interim
liaison counsel for the plaintiffs. On May 11, 2015, lead counsel
for the plaintiffs filed a First Master Consolidated Class Action
Complaint ("Consolidated Complaint").
The parties to the MDL Action exchanged initial disclosures on May
29, 2015. The Company answered the Consolidated Complaint on July
13, 2015. On September 22, 2016, lead counsel for the plaintiffs
filed a First Amended Consolidated Class Action Complaint (the
"Amended Consolidated Complaint"). The Amended Consolidated
Complaint added twenty-five additional named plaintiffs. NI and NIC
answered the Amended Consolidated Complaint on October 20, 2016.
On May 27, 2016, Judge Gottschall entered a Case Management Order
setting a July 13, 2017 date for plaintiffs' class certification
motion. On November 30, 2016, the court entered an order referring
discovery matters to a magistrate judge for supervision. Pursuant
to the magistrate's order, the parties jointly filed a new proposed
case management order on January 25, 2017, which extended the fact
discovery deadline to November 22, 2017.
On January 31, 2017, the parties filed a joint motion with Judge
Gottschall requesting adjustment of the class action briefing
schedule to April 24, 2018. On February 2, 2017, Judge Gottschall
granted the parties' motion extending the deadline to complete the
class certification briefing to April 24, 2018. On February 6,
2017, the magistrate approved the parties' schedule set forth in
the case management order jointly filed on January 25, 2017.
In September 2017, the plaintiffs filed a motion to further extend
the case deadlines. On October 5, 2017, Judge Gottschall entered an
Agreed Order Extending the Discovery Cutoff ordering that fact
discovery relevant to class certification be completed by March 13,
2018 and that the class certification briefing be completed by July
31, 2018.
On March 5, 2018, Judge Gottschall extended the fact discovery
deadline to May 25, 2018. Subsequent extensions followed. Fact
discovery relevant to class certification is now substantially
complete.
On October 13, 2017, lead counsel for the plaintiffs filed a Motion
for Leave to File a Second Amended Consolidated Class Action
Complaint, as well as a Motion for Voluntary Dismissal of Claims
without Prejudice relating to 15 previously named plaintiffs. On
January 4, 2018, Judge Gottschall granted both motions.
On January 9, 2018, the plaintiffs filed a Second Amended
Consolidated Class Action Complaint. The Second Amended
Consolidated Class Action Complaint removed 15 named plaintiffs and
substituted in eight new named plaintiffs.
As a result, the total number of named plaintiffs is now 37 and
three class action cases were dismissed entirely without prejudice
because there were no longer any remaining plaintiffs in those
cases. On August 16, 2018, Judge Gottschall entered a minute order
setting a status hearing for September 26, 2018 in light of the
ongoing settlement efforts of the parties.
During the September 26, 2018 status hearing, the parties advised
the court that additional settlement discussions were scheduled.
Accordingly, on September 27, 2018 Judge Gottschall entered a
minute order extending class plaintiffs' deadline to file a motion
for class certification and supporting expert reports until
November 16, 2018.
Since September 2018, Judge Gottschall has extended the deadlines
for class certification briefing several times to allow for
settlement discussions.
The Court entered an order on January 23, 2019, extending the
filing date for the initial class certification brief to March 6,
2019, and on March 5, 2019, the Company filed an unopposed motion
for a short extension through March 19, 2019, to facilitate
continued negotiations as the parties endeavor to reach a
good-faith settlement and the motion was granted on March 6, 2019.
No other class briefing dates have been scheduled.
On November 11, 2017, seven plaintiffs (the "Direct Action
Plaintiffs") in the MDL moved for a separate trial and discovery
schedule independent of the class action schedule. On January 2,
2018, Judge Gottschall granted in part and denied in part the
Direct Action Plaintiffs' motion, allowing two of the Direct Action
Plaintiffs to begin limited discovery on plaintiff-specific issues.
The parties submitted competing proposed discovery schedules.
In a minute order dated January 26, 2018, Judge Gottschall declined
to enter either schedule but ordered the parties to confer on a
schedule for prioritizing the plaintiff-specific discovery after
the close of fact discovery relevant to class certification issues.
The parties are currently engaged in discovery.
One of the Direct Action Plaintiffs filed a motion for leave to
file a First Amended Complaint on September 25, 2018 and that
motion was granted by the court in a minute order dated December
13, 2018.
Navistar International Corporation, through its subsidiaries,
manufactures and sells commercial and military trucks, diesel
engines, school and commercial buses, and service parts for trucks
and diesel engines worldwide. The company operates through four
segments: Truck, Parts, Global Operations, and Financial Services.
Navistar International Corporation was founded in 1902 and is
headquartered in Lisle, Illinois.
NCAA: Compensation Rules Must Be Slightly Expanded
--------------------------------------------------
Emma Sarappo, writing for Vox, reports that on March 8, the system
that prevents college athletes from being compensated for their
labor (beyond the scholarships that some receive) cracked open,
just a little bit.
A federal judge in California ruled that the NCAA's rules on
compensation violate antitrust laws and must be slightly expanded.
Per the Alston v. NCAA ruling, the association can no longer cap
the scholarships colleges offer student-athletes, paving the way
for schools to begin offering larger education-related packages.
That doesn't mean colleges are allowed -- let alone encouraged --
to pay traditional salaries.
The status quo, as Vox's Today, Explained has reported, is that
players get nothing while schools make a killing off of them --
even as some student-athletes, particularly those from low-income
backgrounds, can struggle to make ends meet:
At present, many students are offered scholarships but not paid
beyond that scholarship, nor do they have the time to hold
on-campus employment. . . . Complicating the debate: Black students
make up more than half of Division 1 basketball players, and the
policy that they shouldn't be paid is supported by mostly white
people.
Furthermore, because many of these students come from precarious
financial situations at home, they don't have the luxury of
boycotting or going on strike. They have to watch as the NCAA makes
billions from their performance -- in ticket sales, merchandise,
and more -- while they (if they're following the NCAA-dictated
rules) never see a cent.
Only about two dozen college athletics programs are actually
profitable (but the ones that are bring in profit margins in the
millions). Some people, like former basketball player Cody J.
McDavis, worry that allowing colleges to pay would create an
expensive arms race for the top recruits that would cut smaller
programs -- and less profitable sports -- out of the competition.
The ruling in Alston v. NCAA is not the dramatic pay-for-play
precedent the plaintiffs were hoping for, but it could have major
effects on college sports. It says that the NCAA must allow
colleges to offer students education-related items like "computers,
science equipment, musical instruments and other tangible items not
included in the cost of attendance calculation but nonetheless
related to the pursuit of academic studies" on top of their
scholarship packages — but they still can't pay for things
outside of the academic sphere.
The NCAA insists that its athletes are, fundamentally, amateurs,
and should not be paid. In the organization's statement on the
case, its chief legal officer Donald Remy said "the decision
acknowledges that the popularity of college sports stems in part
from the fact that these athletes are indeed students, who must not
be paid unlimited cash sums unrelated to education."
US District Judge Claudia Wilken said that the NCAA can continue to
regulate benefits that aren't linked to attending school. But she
wrote that its "amateurism" argument is fundamentally flawed, as
Law360 reported, and that the NCAA has not successfully defined
what an amateur is. She also dismissed their defense that not
paying athletes helps them better integrate into campus, noting
that wealth disparities are already found at colleges across the
nation.
She found "that the defendants agreed to and did restrain trade in
the relevant market" and that the NCAA's caps on scholarships
"produced significant anticompetitive effects." In 2014, Wilken
issued a similar ruling on O'Bannon v. NCAA, a class-action
antitrust lawsuit arguing that the NCAA should pay to use former
students' images, though much of her remedy was overturned on
appeal.
Whether the latest case will hold up on appeal remains to be seen.
As does the extent to which it might change things: The ruling
doesn't force conferences and colleges to change their compensation
or scholarship packages -- it just says the NCAA can't stop them
from doing so. [GN]
NCAA: Drake Seeks Damages Over Injuries Suffered as Student-Athlete
-------------------------------------------------------------------
Thomas Drake, individually and on behalf of all others similarly
situated, Plaintiff, v. National Collegiate Athletic Association
(NCAA), Defendants, Case No. 19-cv-00687 (S.D. Ind., February 15,
2019), seeks economic, monetary, actual, consequential,
compensatory, and punitive damages, past, present and future
medical expenses, other out of pocket expenses, lost time and
interest, lost future earnings, litigation and attorney fees,
prejudgment and post-judgment interest, injunctive and/or
declaratory relief and such other and further relief resulting from
negligence, fraudulent concealment, breach of express contract,
breach of implied contract, breach of third-party express contract
and unjust enrichment.
Drake played football at the Glenville State College from 1993 to
1996. He suffered from numerous concussions, as well as countless
sub-concussive hits as part of routine practice and gameplay. He
now suffers from emotional instability, loss of impulse control,
loss of inhibition, loss of concentration and short-term memory
loss.
NCAA is an unincorporated association with its principal office
located at 700 West Washington Street, Indianapolis, Indiana 46206.
The NCAA is the governing body of collegiate athletics that
oversees twenty-three college sports and over 400,000 students who
participate in intercollegiate athletics. Drake alleges NCAA knew
about the debilitating long-term dangers of concussions,
concussion-related injuries and sub-concussive injuries that
resulted from playing college football, but did nothing.
Plaintiff is represented by:
Jay Edelson, Esq.
Benjamin H. Richman, Esq.
EDELSON PC
350 North LaSalle Street, 13th Floor
Chicago, IL 60654
Tel: 312.589.6370
Fax: 312.589.6378
Email: jedelson@edelson.com
brichman@edelson.com
- and -
Rafey S. Balabanian, Esq.
329 Bryant Street
San Francisco, CA 94107
Tel: 415.212.9300
Fax: 415.373.9435
Email: rbalabanian@edelson.com
- and -
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Tel: 844.456.4823
Fax: 713.554.9098
Email: jraizner@raiznerlaw.com
NEKTAR THERAPEUTICS: Levi & Korsinsky to Lead in Mulquin
--------------------------------------------------------
In the case, JOHN MULQUIN, Plaintiff, v. NEKTAR THERAPEUTICS, et
al., Defendants, Case No.18-cv-06607-HSG (N.D. Cal.), Judge Haywood
S. Gilliam, Jr. of the U.S. District Court for the Northern
District of California granted the motion filed by Oklahoma
Firefighters Pension and Retirement System and El Paso Firemen &
Policemen's Pension Fund ("Oklahoma Firefighters and El Paso")
seeking appointment as the Lead Plaintiff, and approval of Labaton
Sucharow LLP as the Lead Counsel and Wagstaffe, Von Loewenfeldt,
Busch & Radwick, LLP ("WVBR LLP") as the Liaison Counsel.
On Oct. 30, 2018, Plaintiff Mulquin filed the securities class
action lawsuit individually and on behalf of others who acquired
common stock of Nektar during the period between Nov. 11, 2017 and
Oct. 2, 2018 and consequently suffered damages. The complaint
asserts claims under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934. The complaint names the following
Defendants: Nektar; Nektar's CEO and Director, Howard W. Robin; and
Nektar's CFO, Gil M. Labrucherie.
As alleged in the complaint, Defendant Nektar is a research-based
biopharmaceutical company that discovers and develops innovative
medicines in areas of high unmet medical need. The Defendants
allegedly made materially false or misleading statements and/or
omissions concerning the efficacy, results, and other facts related
to a clinical-stage drug called NKTR-214, and when the purported
truth about the drug was revealed, Nektar's stock price fell and
the putative class members—who acquired Nektar's common stock at
inflated prices during the Class Period—suffered financial
losses.
Specifically, an Oc. 1, 2018 report published by Plainview, LLC
entitled "NKTR-214: Pegging the Value at Zero" purportedly
undermined Nektar's prior touting of its drug as a promising
treatment for cancer, particularly in combination with checkpoint
inhibitors. Following the report's publication, Nektar's stock
price fell $5.63 per share, or 9.24%, over the following two
trading sessions, closing at $55.33 per share on Oct. 2, 2018.
Three competing motions for appointment as the Lead Plaintiff and
approval of the Lead Counsel were filed: (1) a motion filed by Lynn
Ronnebaum, seeking appointment as the Lead Plaintiff and approval
of Levi & Korsinsky, LLP as the Lead Counsel; (2) a motion filed by
Oklahoma Firefighters and El Paso seeking appointment as as the
Lead Plaintiff and approval of Labaton Sucharow as the Lead Counsel
and WVBR LLP as the Liaison Counsel; and (3) a motion filed by
Gurpreet Narula, seeking appointment as the Lead Plaintiff and
approval of Pomerantz LLP as the Lead Counsel. Subsequently,
Narula withdrew his motion, and Ronnebaum filed a notice of
non-opposition to Oklahoma Firefighters and El Paso's motion,
recognizing that Oklahoma Firefighters and El Paso's Pension Fund
collectively possess the largest financial interest in the relief
sought by the class as required by the PSLRA.
On Jan. 22, 2019, Oklahoma Firefighters and El Paso filed a reply
to their motion, representing that they are an unopposed and
presumptive Lead Plaintiff.
Judge Gilliam holds that since their presumptive Lead Plaintiff
status is not rebutted, Oklahoma Firefighters and El Paso's
appointment as the Lead Plaintiff is appropriate.
klahoma Firefighters and El Paso have moved for approval of their
selection of Labaton Sucharow as the Lead Counsel and WVBR LLP as
the Liaison Counsel. The Judge defers to Oklahoma Firefighters and
El Paso's choice of th Lead Counsel because their choice is not so
irrational, or so tainted by self-dealing or conflict of interest,
as to cast genuine and serious doubt on their willingness or
ability to perform the functions of the Lead Plaintiff. Approval
of Oklahoma Firefighters and El Paso's selection of counsel is
therefore merited. Nonetheless, Labaton Sucharow and WVBR LLP
should divide up responsibilities in a way that promotes the
efficient representation of the putative class.
For these reasons, Judge Gilliam denied Ronnebaum's motion and
granted Oklahoma Firefighters and El Paso's motion. Oklahoma
Firefighters and El Paso are appointed as the Lead Plaintiff for
the putative class. Labaton Sucharow is approved as the Lead
Counsel for the putative class and WVBR LLP is approved as the
Liaison Counsel.
As previously stipulated, within 14 days of the order the parties
will meet and confer and submit a proposed schedule for the filing
of a consolidated or amended complaint and the filing of the
Defendants' response thereto.
A full-text copy of the Court's March 13, 2019 Order is available
at https://is.gd/nfAS9k from Leagle.com.
John Mulquin, Individually and On Behalf of All Others Similarly
Situated, Plaintiff, represented by J. Alexander Hood, II --
ahood@pomlaw.com -- Pomerantz LLP, pro hac vice, Jeremy A.
Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, pro hac vice
& Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP.
Nektar Therapeutics, Howard W. Robin & Gil Labrucherie, Defendants,
represented by Sara B. Brody -- SBRODY@SIDLEY.COM -- Sidley Austin
LLP, Alison Fiona Dame-Boyle -- ADAMEBOYLE@SIDLEY.COM -- Sidley
Austin, Matthew James Dolan -- mdolan@sidley.com -- Sidley Austin
LLP & Robin Eve Wechkin -- RWECHKIN@SIDLEY.COM -- Sidley Austin
LLP.
Lynn Ronnebaum, Movant, represented by Adam Marc Apton --
aapton@zlk.com -- Levi Korsinsky, LLP.
Oklahoma Firefighters Pension and Retirement System & El Paso
Firemen & Policemen's Pension Fund, Movants, represented by Francis
P. McConville, Labaton Sucharow LLP, pro hac vice & James Matthew
Wagstaffe, Wagstaffe, von Loewenfeldt, Busch & Radwick LLP.
Gurpreet Narula, Movant, represented by Jennifer Pafiti, Pomerantz
LLP.
NESTLE: Proskauer Rose Attorneys Discuss Class Action Dismissal
---------------------------------------------------------------
Lawrence I Weinstein, Esq. -- lweinstein@proskauer.com -- and Carl
Mazurek, Esq. -- cmazurek@proskauer.com -- of Proskauer Rose LLP,
in an article for Mondaq, report that though child and slave labor
is "widespread, reprehensible, and tragic," a federal court in the
District of Massachusetts found it was not deceptive for Nestle to
omit from product labels that those practices (allegedly) exist in
its supply chain. In granting defendant Nestle's motion to dismiss,
the court, after assuming that plaintiff's allegations are true,
found that reasonable consumers would not be misled when
manufacturers omit such information at the point of sale. Tomasella
v. Nestle, No. 18-cv-10269 (2019).
In this putative class action -- one of a trio of similar lawsuits
against chocolate manufacturers -- plaintiff, who purchased various
Nestle products, claimed the company's omissions were deceptive and
unfair, and violated Massachusetts consumer protection laws.
Plaintiff claimed she would not have bought, or paid as much for,
Nestle's products had she known that child and slave labor
allegedly existed in its products' supply chain.
First, the court examined whether Nestle deceived customers by
failing to disclose alleged child and slave labor practices in its
supply chain on product packaging. Citing FTC administrative
precedent, the court characterized Nestle's omission as a "pure
omission," involving a subject as to which the seller has said
nothing, in a circumstance that does not give any meaning to that
silence. Specifically, the court noted that plaintiff did not
allege Nestle made any false statements about child or slave labor
on its packaging, "or that Nestle's omissions turned an affirmative
representation into a misleading half-truth." By selling chocolate,
Nestle is implying "the product is fit for human consumption." This
implication, the court reasoned, "does not on its own give rise to
any misleading impression about how Nestle or its suppliers treat
their workers." The court, therefore, found it was not reasonable
for a consumer to "affirmatively form any preconception about"
Nestle's supply chain, "let alone make a purchase decision based on
any such preconception." Because the labeling would not mislead
consumers "acting reasonably under the circumstances, to act
differently," plaintiff failed to state a claim for deceptive
conduct. The court also held Nestle's failure to disclose alleged
child and slave labor practices in its supply chain did not
constitute unfair trade practices under Massachusetts law, and
Plaintiff did not point to any authority that defined such
nondisclosure as unfair.
The Tomasella decision echoes a line of other federal cases in
which putative class actions were filed alleging similar labor
practices in the supply chains of other retailers and
manufacturers. These cases, including several brought under
California's consumer protection laws, also found there was no
affirmative duty to disclose these types of supply chain labor
practices. See, e.g., Sud v. Costco, 15-cv-03783 (N.D. Cal. 2017)
and Wirth v. Mars, 15-cv-1470 (C.D. Cal. 2016). [GN]
NFG SAN FRANCISCO: Broughton Sues Over Unpaid Compensation
----------------------------------------------------------
Heather Broughton, an individual, on behalf of herself and on
behalf of all persons similarly situated, Plaintiff, v. NFG San
Francisco, LLC, a Limited Liability Company; and Does 1 through 50,
inclusive, Defendants, Case No. CGC-19-57 4657 (Cal. Super. Ct.,
San Francisco Cty., March 20, 2019) arises from the Defendants'
uniform policy and practice of failing to lawfully compensate
employees.
The Defendants purposefully avoided the payment for all time worked
as required by California law, notes the complaint.
Also, in violation of the applicable sections of the California
Labor Code and the requirements of the Industrial Welfare
Commission ("IWC") Wage Order, the Defendants, knowingly and
systematically failed to compensate Plaintiff and the other members
of the California Class for missed meal and rest periods, says the
complaint
Plaintiff was employed by the Defendants in California from June
2018 to August 2018.
NFG San Francisco, LLC is a California foreign limited liability
company and is a franchisee of Domino's Pizza.[BN]
The Plaintiff is represented by:
Shani Zakay, Esq.
ZAKA Y LAW GROUP, APLC
3990 Old Town Ave. Ste. C204
San Diego, CA 92110
Phone: (619) 255-9047
Facsimile: (858) 404-9203
Website: www.zakaylaw.com
- and -
Norman B. Blumenthal, Esq.
Kyle R. Nordrehaug, Esq.
Aparajit Bhowmik, Esq.
BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
2255 Calle Clara
La Jolla, CA 92037
Phone: (858)551-1223
Facsimile: (858) 551-1232
Website: www.bamlawca.com
PACKAGING CORPORATION: Removes Vasquez Case to C.D. California
--------------------------------------------------------------
Packaging Corporation of America removes case styled, VICTOR
VASQUEZ, an individual, on behalf of himself and on behalf of all
persons similarly situated, the Plaintiff, vs. PACKAGING
CORPORATION OF AMERICA, a Corporation; and Does 1 through 50,
Inclusive, the Defendants, Case No. 19STCVO1113 (Filed Jan. 15,
2019), from the Superior Court of the State of California, County
of Los Angeles to the United States District Court for the Central
District of California on Mar. 15, 2019. The Central District of
California Court Clerk assigned Case No. 2:19-cv-01935 to the
proceeding.
The Plaintiffs asserts the following causes of action: unfair
Competition, failure to pay overtime wages, failure to provide
required meal periods, failure to provide required rest periods,
failure to provide accurate itemized statements, and failure to
provide wages when due in violation of the California Labor Code.
Packaging Corporation of America is an American manufacturing
company based in Lake Forest, Illinois. The company has about
14,600 employees, with operations primarily in the United
States.[BN]
Attorneys for the Defendant:
Maggy Athanasious, Esq.
Derrick Lam, Esq.
LITTLER MENDELSON, P.C.
2049 Century Park East, 5th Floor
Los Angeles, CA 90067 3107
Telephone: 310 553 0308
Facsimile: 310 553 5583
PAPA JOHN'S: Continues to Defend Danker Class Suit
--------------------------------------------------
Papa John's International, Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on March 8, 2019,
for the fiscal year ended December 30, 2018, that the company
continues to defend a class action suit entitled, Danker v. Papa
John's International, Inc. et al.
On August 30, 2018, a class action lawsuit was filed in the United
States District Court, Southern District of New York, Danker v.
Papa John's International, Inc. et al, on behalf of a class of
investors who purchased or acquired stock in Papa John's through a
period up to and including July 19, 2018.
The complaint alleges violations of Sections l0(b) and 20(a) of the
Securities Exchange Act of 1934. The District Court has appointed
the Oklahoma Law Enforcement Retirement System to lead the case and
has also issued a scheduling order for the case to proceed.
An amended complaint was filed on February 13, 2019.
The Company believes that it has valid and meritorious defenses to
these suits and intends to vigorously defend against them.
Papa John's said, "The Company has not recorded any liability
related to these lawsuits as of December 30, 2018 as it does not
believe a loss is probable or estimable."
Papa John's International, Inc. operates and franchises pizza
delivery and carryout restaurants under the Papa John's trademark
in the United States and internationally. It operates through four
segments: Domestic Company-Owned Restaurants, North America
Commissaries, North America Franchising, and International
Operations. he company was founded in 1984 and is headquartered in
Louisville, Kentucky.
PAT'S SELECT: Bids to Dismiss Casorio-Sahin FLSA Suit Denied
------------------------------------------------------------
In the case, CASSONDRA CASORIO-SAHIN, et al., Plaintiffs, v. PAT'S
SELECT PIZZA & GRILL LLC, et al., Defendants, Civil Action No.
RDB-18-0851 (D. Md.), Judge Richard D. Bennett of the U.S. District
Court for the District of Maryland denied the two dismissal motions
filed by (1) Defendants, Pat's Select Pizza & Grille of Severn,
LLC, and Pat's Pizza of Oxford, LLC; and (2) Defendants, Pat's
Select Pizza & Grill, LLC, Pat's Pizzeria of Aberdeen, LLC, Pat's
Select Pizza & Grill of Cockeysville, MD, LLC, and Apostolos'
Pizzerias, Inc.
Plaintiffs Casorio-Sahin, Andres Quintana, and Jonathan Thomas,
bring the putative class action against the Defendants, alleging
violations of the Fair Labor Standards Act ("FLSA"), Maryland Wage
and Hour Law ("MWHL"), Maryland Wage Payment and Collection Law
("MWPCL"), Pennsylvania Minimum Wage Act ("PMWA"), and Pennsylvania
Wage Payment and Collection Law ("PWPCL"). The Plaintiffs allege
that the Defendants failed to pay the minimum wage, overtime, and
expense reimbursement as required by the law.
In brief, some of the Plaintiffs' specific complaints include: (i)
they were not paid the applicable minimum wage when performing work
that was not subject to tipping by patrons, such as sweeping
floors, cleaning pans, folding pizza boxes, and painting; (ii) they
personally incurred expenses such as uniform shirts and car and
cellphone use for which they were not reimbursed; (iii) they have
not been paid time and a half for overtime hours; and (iv) they
were not informed of minimum wage or tip credit requirements and
policy.
Casorio-Sahin alleges that she was employed at Pat's Northeast.
Quintana alleges that he was employed primarily at Pat's Northeast
and also sometimes worked for Pat's Select in Elkton. Thomas
alleges that he was employed at Pat's Northeast and also at Pat's
Oxford. The Plaintiffs add that delivery drivers at the Northeast
location have been tasked to help with deliveries and other needs
at the Oxford location, and employees from Elkton and the Northeast
locations have often filled in at Oxford. Also, sometimes
employees from Oxford worked at Aberdeen, Northeast and Pasadena
locations.
Moving Defendants Pat's Select, Pat's Aberdeen, Pat's Cockeysville,
Apostolos, Pat's Severn, and Pat's Oxford move to dismiss the
complaint for failure to state a claim against them, specifically
that the Plaintiffs have failed to adequately allege an employer
relationship with them and therefore lack standing to assert the
claim against the corporate entities.
Judge Bennett finds that the Plaintiffs' claim of joint employment
is not so lacking in factual allegations that it cannot survive a
dismissal motion. Their allegations are sufficient to create an
inference that the Moving Defendants may be not completely
disassociated with respect to the Plaintiffs as workers such that
they share responsibility for the worker's employment.
Importantly, at this early stage of the litigation, the Judge
declines to conduct a detailed factor-by-factor analysis given that
the question of joint employer status is essentially a
fact-intensive issue best addressed after the parties have had an
opportunity to uncover facts through discovery to support or refute
the Plaintiffs' claim.
Further, no element or factor of the test is outcome-determinative
so the failure to allege any particular fact does not require
dismissal. The Moving Defendants' averral of certain facts, such
as Pat's Severn never hiring any workers, is likewise unavailing.
Of course, the case may well appear entirely different when viewed
in light of evidence as distinct from mere allegations viewed in
the light most favorable to the Plaintiffs. Ultimately, the
Plaintiffs may fail to meet their burden of proving that the Moving
Defendants were joint employers, but they have plausibly suggested
it, sufficient to survive these dismissal motions.
For these reasons, Judge Bennett denied the Defendants' Motions to
Dismiss.
A full-text copy of the Court's March 13, 2019 Memorandum and Order
is available at https://is.gd/XIDNgZ from Leagle.com.
Cassondra Casorio-Sahin, Andres Quintana & Jonathan Thomas,
Plaintiffs, represented by Joyce E. Smithey -- jsmithey@rwllaw.com
-- Smithey Law Group LLC, Catherine Mary Manofsky, Smithey Law
Group & Reuben Wolfson, Smithey Law Group LLC.
Shane Holland & Samantha Wallace, Plaintiffs, represented by Joyce
E. Smithey, Smithey Law Group LLC & Catherine Mary Manofsky,
Smithey Law Group.
Pat's Select Pizza & Grill LLC, Pat's Select Pizza & Grill of
Cockeysville, MD, LLC, Pat's Pizza of North East, Inc., Pat's
Pizzeria of Aberdeen, LLC, Apostolos' Pizzerias, Inc. & Apostolos
Kalaitzoglou, Defendants, represented by Stephen G. Grygiel --
sgrygiel@mdattorney.com -- Silverman Thompson Slutkin & White.
Pat's Select Pizza & Grill of Severn, LLC, Defendant, represented
by Kevin C. McCormick -- kmccormick@wtplaw.com -- Whiteford Taylor
and Preston LLP, Stephen G. Grygiel, Silverman Thompson Slutkin &
White & Peter D. Guattery -- pguattery@wtplaw.com -- Whiteford
Taylor and Preston LLP.
Pat's Pizza of Oxford, LLC & Dimitrios Tangalidis, Defendants,
represented by Kevin C. McCormick, Whiteford Taylor and Preston LLP
& Peter D. Guattery, Whiteford Taylor and Preston LLP.
"John Doe" Restaurants, Defendant, represented by Peter D.
Guattery, Whiteford Taylor and Preston LLP.
RISA TRAVEL: Guerra Sues over Unwanted Marketing Text Messages
--------------------------------------------------------------
MARIO GUERRA, individually and on behalf of all others similarly
situated, the Plaintiff, v. RISA TRAVEL, LLC, a Florida limited
liability company, the Defendant, Case No. 0:19cv60693 (S.D. Fla.,
March 16, 2019), seeks injunctive relief to halt the Defendant's
illegal conduct, and seeks statutory damages on behalf of himself
and members of the class, and any other available legal or
equitable remedies resulting from the illegal actions of the
Defendant under the Telephone Consumer Protection Act.
According to the complaint, the Defendant owns and operates a
travel agency that specializes in coordinating vacations to Punta
Cana, Dubai and Europe. In efforts to drum-up business, the
Defendant would often send marketing text messages providing
different types of offers and savings for future purchases without
first obtaining express written consent to send such marketing text
messages as required to do so under the TCPA. These messages were
sent using mass-automated technology through a third-party company
hired by the Defendant to send marketing text messages on the
Defendant's behalf en masse.
In sum, the Defendant knowingly and willfully violated the TCPA,
causing injuries to the Plaintiff and members of the putative
class, including invasion of their privacy, aggravation, annoyance,
intrusion on seclusion, trespass, and conversion.
The Paintiff himself was sent at least two marketing text messages
without his express written consent. The Defendant's text messages
constitute telemarketing because they encourage the future purchase
of the Defendant's products by consumers.
At no point in time did the Plaintiff provide the Defendant with
his express written consent to be contacted by text for marketing
purposes, the lawsuit says.[BN]
Attorneys for the Plaintiff:
Jibrael S. Hindi, Esq.
THE LAW OFFICE OF JIBRAEL S. HINDI, PLLC.
110 SE 6 th Street
Ft. Lauderdale, FL 33301
Telephone: (954) 907-1136
Facsimile: (855) 529-9540
E-mail: jibrael@jibraellaw.com
SEALED AIR: Removes Labor Suit to Eastern District of California
----------------------------------------------------------------
Sealed Air Corporation removes case, VICTOR A. PAZ, an individual,
on his own behalf and on behalf of all other similarly situated,
the Plaintiffs, vs. SEALED AIR CORPORATION (US), a Delaware
corporation, and DOES 1-50, inclusive, the Defendants, Case No.
MCV079793 (Filed Jan. 7, 2019), was removed from the Superior Court
of the State of California, County of Madera, to the United States
District Court for the Eastern District of California on Mar. 15,
2019. The Eastern District of California Court Clerk assigned Case
No. 1:19-at-00196 to the proceeding.
According to the complaint, because Defendant's non-exempt
employees in California typically worked 49 out of 52 weeks per
year (94.23%) during the putative class period, the putative class
worked approximately 26,819 work weeks, typically five days per
week.
Based on Plaintiff's allegations that Defendant's non-exempt
employees were not able to take meal breaks, and thus were
allegedly not provided compliant, uninterrupted meal periods five
times per week, the amount in controversy is $2,352,026 (26,819
work weeks x 5 missed meal periods x $17.54 per hour).
Although the Defendant vigorously denies Plaintiff's allegations,
including the alleged damages, if Plaintiff were to prevail on his
meal period claim with respect to himself and the putative class
members, the amount in controversy with respect to that claim alone
could be $2,352,026, the complaint says.[BN]
Attorneys for the Defendant:
Bradley E. Schwan, Esq.
Keith J. Rasher, Esq.
LITTLER MENDELSON, P.C.
2049 Century Park East, 5th Floor
Los Angeles, CA 90067-3107
Telephone: 310 553 0308
Facsimile: 310 553 5583
E-mail: bschwan@littler.com
krasher@littler.com
STATEWIDE CREDIT: Santiago Files FDCPA Suit in E.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Statewide Credit
Services, Corp. The case is styled as Basilio Santiago on behalf of
himself and all others similarly situated, Plaintiff v. Statewide
Credit Services, Corp. doing business as: Schwartz, Schwartz &
Associates, John Doe 1-10 the owners and operators of Statewide
Credit Services, Corp. d/b/a Schwartz, Schwartz & Associates,
Defendants, Case No. 2:19-cv-01628 (E.D. N.Y., Mar. 21, 2019).
The Plaintiff filed the case under the Fair Debt Collection
Practices Act.
Statewide Credit Association Inc. provides accounts receivable
management and collection services.[BN]
The Plaintiff appears pro se.
SUNRISE SENIOR: Removes Employment Discrimination Suit to C.D. Cal.
-------------------------------------------------------------------
Sunrise Senior Living Management, Inc., and Jennifer Munoz remove
case styled, NANCY SCHLIESER, an individual, the Plaintiff, vs.
SUNRISE SENIOR LIVING MANAGEMENT INC., a Virginia corporation;
JENNIFER MUNOZ, an individual; and DOES 1 through 50, the
inclusive, Case No. 30-2019-01044205-CU-OE-CJC, from Orange County
Superior Court, to the U.S. District Court for the Central District
of California on Maroh 15, 2019. The Central District of California
Court Clerk assinged Case No. 8:19-cv-00517 to the proceeding.
The Plaintiff, a former employee of Sunrise, is alleging five
claims: age discrimination, age harassment, retaliation, and
failure to prevent discrimination, harassment, and retaliation all
in alleged violation of the Fair Employment and Housing Act, and
wrongful termination in violation of public policy.
The Plaintiff seeks damages for alleged lost past and future income
and employment benefits, lost wages, unpaid expenses, and penalties
and interest on unpaid wages for alleged past and future
psychological and emotional distress, humiliation, and mental and
physical pain and anguish.[BN]
Attorneys for the Defendants:
Jared L. Bryan, Esq.
Jonathan P. Schmidt, Esq.
JACKSON LEWIS P.C.
200 Spectrum Center Dr., Suite 500
Irvine, CA 92618
Telephone: (949) 885-1360
Facsimile: (949) 885-1360
E-mail: jared.bryan@jacksonlewis.com
jonathan.schmidt@jacksonlewis.com
TECHNIPFMC PLC: Continues to Defend Prause Class Suit in Texas
--------------------------------------------------------------
TechnipFMC plc said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on March 11, 2019, for the
fiscal year ended December 31, 2018, that the company continues to
defend a shareholder class action suit entitled, Prause v.
TechnipFMC, et al.
A purported shareholder class action filed in 2017 and amended in
January 2018 and captioned Prause v. TechnipFMC, et al., No.
4:17-cv-02368 (S.D. Texas) is pending in the U.S. District Court
for the Southern District of Texas against the Company and certain
current and former officers and employees of the Company.
The suit alleged violations of the federal securities laws in
connection with the Company's restatement of its first quarter 2017
financial results and a material weakness in our internal control
over financial reporting announced on July 24, 2017.
On January 18, 2019, the District Court dismissed claims under
Section 10(b) and 20(a) of the Securities Exchange Act of 1934, as
amended, and Section 15 of the Securities Act of 1933, as amended
("Securities Act").
A remaining claim for alleged violation of Section 11 of the
Securities Act in connection with the reporting of certain
financial results in the Company's Form S-4 Registration Statement
filed in 2016 is pending and seeks unspecified damages.
TechnipFMC said, "The Company is vigorously contesting the
litigation and cannot predict its duration or outcome."
TechnipFMC plc engages in the oil and gas projects, technologies,
and systems and services businesses. It operates through three
segments: Subsea, Onshore/Offshore, and Surface Technologies.
TechnipFMC plc was founded in 1958 and is headquartered in London,
the United Kingdom.
TOUCHTUNES MUSIC: 2d Cir. Affirms Attys' Fees/Costs Awards in Cline
-------------------------------------------------------------------
In the case, MICHELLE CLINE, Individually and on behalf of all
others similarly situated, Plaintiff-Appellant, and KELLY ENGSTROM,
Individually and on behalf of all others similarly situated,
Plaintiff, v. TOUCHTUNES MUSIC CORPORATION, Defendant-Appellee,
Case No. 18-1756 (2d Cir.), Judge Robert D. Sack of the U.S. Court
of Appeals for the Second Circuit affirmed the District Court's
final judgment awarding counsel fees based only on the average
value of awarded song credits actually redeemed, but denying an
incentive award and most costs.
TouchTunes provides digital jukebox services by means of a
touch-screen interface or a mobile application for smartphones. In
the relevant period, each song purchase typically cost $0.40. The
jukeboxes come with a remote control, provided to venue owners,
that allowed its user to skip a song on the queue.
Before the lawsuit was filed, the TouchTunes terms of use disclosed
generally that songs might not play and that refunds would not be
issued for unplayed songs "under any circumstances." But the
terms did not specifically disclose the built-in functionality that
allows venue owners to skip songs deliberately.
Plaintiff-Appellant Cline alleges that a bartender in Montana used
a remote control to skip a song she had selected using the
TouchTunes App. Plaintiff Kelly Engstrom, who was later dismissed
from the lawsuit, alleged that she had purchased songs using cash
at TouchTunes jukeboxes in Montana bars, and that her songs were
also skipped. Cline and Engstrom commenced the action in June
2014, asserting class claims under New York General Business Law
("GBL") sections 349 (deceptive acts or practices) and 350 (false
advertising), and common law claims for breach of the duty of good
faith and fair dealing, and for unjust enrichment.
After two partially successful motions to dismiss and two
amendments to the complaint, only Cline's section 349 claim
remained, arguably linked to New York because of music servers and
payment card processing systems purportedly located in that state.
The scope of the section 349 claim was pared down to focus on
TouchTunes' alleged failure to disclose in its published terms of
use that venue personnel were able to skip selected songs.
In October 2017, the parties settled this claim with respect to a
putative class of App users. In exchange for a release, TouchTunes
agreed to award each class member one credit to play a song at any
TouchTunes jukebox.
The putative class was divided into two subclasses. The first
comprised roughly 166,000 users whom TouchTunes identified as
having paid for a song that did not play fully. The second
subclass was drawn from the population of App users who had made
purchases before TouchTunes began to keep records of partially
played songs.
The settlement, which set a claim deadline of June 21, 2018,
provided that song credits would expire one year after award. The
parties and the court agreed that, on average, each song credit is
worth approximately $0.40. Additionally, under the settlement,
TouchTunes amended its terms of use to inform users explicitly that
a selected song might not play because it may be skipped through
use of the remote control. TouchTunes agreed to pay for class
notice and claims administration.
Separate from the class settlement terms, TouchTunes agreed not to
object to an incentive award to Cline of up to $2,000 for serving
as the class representative, and to the class counsel's fees and
expenses of up to $100,000. The parties further decided not to
charge any fee or incentive award against the settlement benefits
awarded to the class members.
At the May 2, 2018 final settlement approval hearing, the District
Court opined that the action was "a nuisance case" and the
settlement "pretty close to worthless." In an oral calculation
conducted with counsel for the parties, the court estimated that if
all the potential class members redeemed their $0.40 song credits,
the settlement would be worth approximately $75,000 (considering
roughly 166,000 members of the Automatic Credit Sub-Class and 2,200
claimants from the Claim Credit Sub-Class). The District Court
also found that the class counsel's lodestar fee application was
not supported by contemporaneous billing records, and that no
substantial explanation had been provided for a $10,000 "consulting
fee" for which reimbursement was sought.
The court ultimately awarded the class counsel attorney's fees of
$0.20 for each song credit that the class members actually redeem
before the credits expire, to be paid within 30 days of the
credits' expiration date. It also denied an incentive award and
approved only the $400 cost for filing the lawsuit.
In the settled class action brought under New York state law,
Plaintiff Cline appeals from that part of the final judgment
awarding the counsel fees based only on the average value of
awarded song credits actually redeemed, but denying an incentive
award and most costs.
As to the fee award, first, Judge Sack finds that the District
Court did not abuse its discretion in disregarding the counsel's
lodestar computation, and instead calculating a reasonable
attorney's fee by the "percentage of the fund" method. That choice
is, moreover, supported by the counsel's failure to produce
contemporaneous billing records, as required by the Circuit, to
support a lodestar claim.
Second, the District Court did not exceed the reasonable bounds of
its discretion in awarding fees based on song credits actually
redeemed, rather than technically awarded under the settlement.
The relevant provision states that if a proposed class settlement
provides for the class members to recover coupons the portion of
any attorney's fee award to the class counsel that is attributable
to the award of the coupons will be based on the value to the class
members of the coupons that are redeemed. Accordingly, having
chosen to award percentage-of-fund fees in the settlement, the
District Court was well within its discretion in awarding fees
based only on credits actually redeemed.
Third, the District Court did not err in declining to award higher
fees based on the injunctive relief secured by the class counsel.
While the injunction prompted TouchTunes to clarify its Terms of
Use to specify that a TouchTunes mobile App user's selected song
might not play because a person may skip a user's selected song
using a TouchTunes-branded remote control, the real value of such
relief to the class members is questionable: even before the
lawsuit was initiated, the vendor's terms of use informed users
that their songs might not play and stated that refunds would not
be issued for unplayed songs "under any circumstances."
As to costs and Cline's requested incentive award, the Judge notes
that considering the District Court's reasonable assessment of the
lawsuit's value, he cannot conclude that it abused its discretion
in denying reimbursement for a fixed, upfront $10,000 consulting
fee charged by a purported expert who apparently approached the
class counsel and "developed" or "helped develop" the lawsuit. For
the same reason, the District Court acted within its discretion in
declining to reimburse copying, postage, and travel costs, and
rejecting the proposed incentive award for Plaintiff Cline.
Finally, the Judge rejects as baseless the Plaintiff's assertion
that "personal bias" influenced the District Court's valuation of
the case and fee award. The Plaintiff's sole support for this
argument is the district court's statements regarding the
negligible value of the lawsuit and settlement. The assessment
finds support in the record. In any event, her argument fails
because claims of judicial bias must be based on extrajudicial
matters, and adverse rulings, without more, will rarely suffice to
provide a reasonable basis for questioning a judge's impartiality.
Judge Sack has considered Cline's remaining arguments and concludes
that they are without merit. Accordingly, he affirmed the District
Court's judgment.
A full-text copy of the Court's March 13, 2019 Summary Order is
available at https://is.gd/gh9hSz from Leagle.com.
JEFFREY MICHAEL NORTON -- jnorton@nfllp.com -- Newman Ferrara LLP,
New York, N.Y., for Appellant.
JOSEPH R. PALMORE -- jpalmore@mofo.com -- (Jamie A. Levitt --
jlevitt@mofo.com -- and Robert J. Baehr -- rbaehr@mofo.com -- on
the brief), Morrison & Foerster LLP, Washington, D.C., for
Appellee.
U.S. SOCCER: Women's Team Members File Gender Bias Class Action
---------------------------------------------------------------
Graham Hays, writing for espnW.com, reports that with a little more
than three months until the U.S. plays its opening game in the FIFA
Women's World Cup, 28 members of the current U.S. women's national
team player pool joined in a federal lawsuit filed on March 8
against U.S. Soccer alleging gender discrimination.
Here is what we know and don't know so far.
The lawsuit
Of the current USWNT player pool, 28 team members were named as
plaintiffs in the case filed in United States District Court in Los
Angeles, and they are seeking class-action status over
"institutionalized gender discrimination" toward the team. The
lawsuit was filed under the Equal Pay Act and Title VII of the
Civil Rights Act.
The plaintiffs are seeking equitable pay and treatment, in addition
to damages including back pay. Among complaints about wages, the
lawsuit also notes issues with where and how often the women's team
played, medical treatment and coaching. The class-action request
would allow any players for the team since February 2015 to join
the case.
A look at a few of the total 41 complaints included in the 25-page
filing:
The lawsuit claims that from March 2013 through Dec. 31, 2016, when
the previous collective bargaining agreement expired, players on
the women's team could make a maximum salary of $72,000, plus
bonuses for winning non-tournament games as well as World Cup
appearances and victories, and for Olympic placement.
A comparison of the WNT and MNT pay shows that if each team played
20 friendlies in a year and each team won all 20 friendlies, female
WNT players would earn a maximum of $99,000 or $4,950 per game,
while similarly situated male MNT players would earn an average of
$263,320 or $13,166 per game against the various levels of
competition they would face. The lawsuit further cites the women's
three World Cup titles, four Olympic gold medals and the 2015 World
Cup title game being the most-watched soccer match in American
television history. The USWNT has also been ranked No. 1 in the
world for 10 of the past 11 years.
The lawsuit also references the "revenue-sharing model" the U.S.
Women's National Team Players Association (USWNTPA) pitched as part
of a new collective bargaining agreement, which took effect on Jan.
1, 2017, and runs through 2021. At the time, the pitch was meant to
challenge U.S. Soccer's assessment that "market realities do not
justify equal pay." the March 8 filing states: "Under this model,
player compensation would increase in years in which the USSF
derived more revenue from WNT activities and player compensation
would be less if revenue from those activities decreased. This
showed the players' willingness to share in the risk and reward of
the economic success of the WNT."
The USWNTPA released a statement on March 8 noting it is not party
to the lawsuit; the players are acting on their own. It said it
supports their goal of "eliminating gender-based discrimination by
USSF" but will continue to do so through the collective bargaining
process.
U.S. Soccer declined to comment to ESPN on the new lawsuit.
How did we get here?
This is a new chapter in what is already a long story. Female
players have for years argued they deserve the same compensation,
treatment and working conditions as their male counterparts, as the
issue has come to a head on multiple fronts since the 2015 World
Cup.
In March 2016, Carli Lloyd, Alex Morgan, Megan Rapinoe, Becky
Sauerbrunn and Hope Solo filed a complaint (officially called a
charge) with the Equal Employment Opportunity Commission (EEOC), a
federal agency that can investigate and mediate allegations of
discrimination but lacks the power to enforce rulings or enact
penalties. Represented by the law firm of Winston & Strawn and
attorney Jeffrey Kessler, the same attorney directing the current
lawsuit, the five high-profile players alleged, among other things,
that the women's national team members were paid almost four times
less than the men in 2015 despite generating significantly more
revenue that year.
At the same time, the USWNTPA continued to negotiate a new
collective bargaining agreement with U.S. Soccer. The two sides had
operated with a memorandum of understanding after the previous CBA
expired at the end of 2012. Prior to the EEOC charge, U.S. Soccer
filed a lawsuit against the USWNTPA in February 2016, alleging
players did not have the right to strike under that memorandum. A
judge ruled in the federation's favor later that year, based on
provisions in the previous CBA.
In April 2017, the two sides ratified the new CBA, which includes
increased direct and bonus compensation and equality with the men
in areas like per diem rates, but the ratification did not negate
or affect the open EEOC charge.
According to the current lawsuit, Lloyd, Morgan, Rapinoe and
Sauerbrunn received right-to-sue letters from the EEOC in February,
a necessary step under federal law to take the March 8 action. No
longer a part of the active player pool, Solo is not part of the
current lawsuit. Her separate complaint against U.S. Soccer was
dismissed by the United Stated Olympic Committee last summer, when
an arbitration panel ruled she failed to sufficiently pursue
remedies within the U.S. Soccer structure.
Kevin Betz, managing partner of Betz+Blevins, an Indianapolis-based
employment law firm, said plaintiffs have 90 days upon receipt of
the right-to-sue letter to initiate a lawsuit.
"The EEOC probably put a lot of resources and effort into trying to
get it solved and investigating it, you would think, because it
involves such a long-standing feud that we all know about in the
sports world and in the civil rights world," Betz explained to
ESPN. "So the EEOC probably put a good amount of effort into it,
and held it for a while in its investigatory stage and finally
said, 'Look, we can't get anything else done. You've got to go
pursue your lawsuit or not.'"
So, while announcing the lawsuit on International Women's Day
certainly suggests an intention to make a splash, it is less a
dramatic escalation than another incremental step in a process that
has long seen players trying to leverage their platform to affect
change.
"I understand the gravity and the weight of it, of filing a
lawsuit," Rapinoe told ESPN. "In that sense, it is a step up. But I
also feel very much it's just another step in the process. This has
been a long process -- honestly, a decades-long process for all the
players that came before.
"For us, we just feel this is the next necessary step in our fight
toward equality, equal pay, working conditions, all of that. I know
it's a big to-do, it doesn't necessarily feel like that [to
players], but I do understand how important it is and what it
means."
Why are the players doing this?
Megan Rapinoe and four other U.S. women's national team players
filed a charge with the EEOC in March 2016 that alleged the women's
team was paid almost four times less than the men in 2015 despite
generating significantly more revenue that year.
Members of the U.S. women's national team are already some of the
best compensated and most famous female team sports athletes in the
world. And that's why they will tell you they feel compelled to
take these stands.
"This team, we're kind of a visible team -- people watch us play
and know our names," Becky Sauerbrunn said at the end of the
SheBelieves Cup. "So I think it's important that we kind of take
that on, and we show that we are empowered women and that we will
fight for things that we believe in, like pay equity.
"It's a heavy responsibility, but it's one that we gladly take on.
And it's something we're going to keep trying to push and push and
push until we feel that everything is equal. That's far away from
here, but that's what we're fighting toward."
The issues are complicated. The law is complicated. The numbers are
complicated, even more so because of FIFA's role in the financial
disparity for events like the World Cup. Rapinoe said her
perception is that public support for equal pay has been
overwhelming since the current generation of players made the issue
a cornerstone of their social activism. To that end, the lawsuit
contains a class action component that includes not just the 28
named plaintiffs, but anyone who played for the national team on or
after Feb. 4, 2015, four days before the team's first game that
year.
"So I can imagine the public is sometimes like, 'What the hell is
this? We don't understand,'" Rapinoe said. "We feel like that at
times as well. But I think in general it's very simple. We want to
be treated equally. We want to be supported equally. We want to
feel we are valued and cared for in the same way that men are --
and just really in the way we deserve, period."
At the very least, they want to make their case in the justice
system.
What does the lawsuit mean for the Women's World Cup that begins
June 7 in Paris?
It likely doesn't mean much on the field in the short term -- the
U.S. players are focused on the World Cup. Rapinoe said the fact
that it is a World Cup year "wasn't a driving factor" in the timing
of the lawsuit; if anything, it placed more pressure on the
American players.
"At the end of the day, we're professionals," Rapinoe said. "We
want to win more than anybody else wants us to win. So when it
comes time to lock in, I feel like this team is exceptional at
compartmentalizing and blocking out distractions and doing
everything we need to prepare to be the best team we can be in
June."
But the team with the highest profile in the tournament will spend
a lot more time answering questions about something other than
whether it can win back-to-back titles for the first time in its
history.
Labor unrest has already played a part in this summer's tournament.
Euro finalist Denmark's bid was seriously effected by its players'
decision to forfeit a qualifier while seeking equal pay. But it
sounds like U.S. players will wait out the legal system while
continuing to play as usual.
"My understanding is these things take a long time," Rapinoe said
of the expected timeline of the suit. "I guess it could reach a
settlement and that would be much quicker. But I think that
generally these things take a long time, and this is sort of the
first step. And then we want to be solely focused on the World Cup
and performing at the World Cup and hopefully winning another World
Cup. That would be our focus there, and then we'll pick it up as
need be after."
What athletes are saying
Other USWNT players who are part of the suit released statements on
March 8 via The Levinson Group, which is responsible for
communications for the plaintiffs:
Carli Lloyd, co-captain of the USWNT: "In light of our team's
unparalleled success on the field, it's a shame that we still are
fighting for treatment that reflects our achievements and
contributions to the sport. We have made progress in narrowing the
gender pay gap, however progress does not mean that we will stop
working to realize our legal rights and make equality a reality for
our sport."
Alex Morgan, co-captain of the USWNT: Each of us is extremely proud
to wear the United States jersey, and we also take seriously the
responsibility that comes with that. We believe that fighting for
gender equality in sports is a part of that responsibility. As
players, we deserved to be paid equally for our work, regardless of
our gender."
Christen Press, USWNT forward: "We have worked very hard with the
USSF, including the Federation's new leadership, to make progress
on these incredibly important gender equality issues. We appreciate
and agree with Carlos Cordeiro's public statements that more should
be done. Despite this progress, the fact is that the pay disparity
and unequal working conditions persists. We believe that we have a
responsibility to act as role models. Fighting for what we legally
deserve is a part of that."
Becky Sauerbrunn, USWNT defender: "The bottom line is simple: it is
wrong for us to be paid and valued less for our work because of our
gender. Every member of this team works incredibly hard to achieve
the success that we have had for the USSF. We are standing up now
so that our efforts, and those of future USWNT players, will be
fairly recognized."
The U.S. National Soccer Team Players Association (USNSTPA), the
union that represents the U.S. men's national team players, also
released a statement in support of the plaintiffs:
"The United States National Soccer Team Players Association fully
supports the efforts of the US Women's National Team Players to
achieve equal pay. Specifically, we are committed to the concept of
a revenue-sharing model to address the US Soccer Federation's
'market realities' and find a way towards fair compensation. An
equal division of revenue attributable to the MNT and WNT programs
is our primary pursuit as we engage with the US Soccer Federation
in collective bargaining. Our collective bargaining agreement
expired at the end of 2018 and we have already raised an equal
division of attributable revenue. We wait on US Soccer to respond
to both players associations with a way to move forward with fair
and equal compensation for all US soccer players."
Tennis star Serena Williams, who has fought for pay equality in her
own sport, was asked what her message would be to the USWNT.
"I know that the pay discrepancy [in soccer] is ludicrous,"
Williams said after her second-round win against Victoria Azarenka
on March 8 at the BNP Paribas Open. "It's a battle. It's a fight.
You know, we have had some incredible pioneers in our sport that
stood up in the '70s and said, 'We're going to get paid what the
men get paid.' They stood up way back then. I think, at some point,
in every sport, you have to have those pioneers, and maybe it's the
time for soccer. I'm playing because someone else stood up, and so
what they are doing right now is hopefully for the future of
women's soccer." [GN]
UNIT CORP: Cockerell Oil Properties Class Suit Ongoing
------------------------------------------------------
Unit Corp. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 26, 2019, for the
fiscal year ended December 31, 2018, that the company continues to
defend a putative class action entitled, Cockerell Oil Properties,
Ltd., v. Unit Petroleum Company, No. 16-cv-135-JHP, United States
District Court for the Eastern District of Oklahoma.
On March 11, 2016, a putative class action lawsuit was filed
against Unit Petroleum Company styled Cockerell Oil Properties,
Ltd., v. Unit Petroleum Company in LeFlore County, Oklahoma.
The company removed the case to federal court in the Eastern
District of Oklahoma. The plaintiff alleges that Unit Petroleum
wrongfully failed to pay interest with respect to untimely royalty
payments under Oklahoma's Production Revenue Standards Act. The
lawsuit seeks actual and punitive damages, an accounting,
disgorgement, injunctive relief, and attorney's fees.
Plaintiff is seeking relief on behalf of royalty owners in our
Oklahoma wells.
The company have asserted several defenses including that the case
cannot be properly certified as a class action because of the wide
variety of circumstances that determine whether a royalty payment
was timely made or has accrued interest under Oklahoma law. The
issue of class certification has not been heard by the court.
No further updates were provided in the Company's SEC report.
Unit Corp. engages in onshore contract drilling of oil and gas
wells (for its own account as well as for other companies),
exploration and production of oil and gas, and the gathering and
transportation of natural gas primarily in the U.S. Unit was
founded in 1963 and is based in Tulsa.
UNITED STATES: Suit Over Migrant Families' Separation Expanded
--------------------------------------------------------------
Julie Small, writing for NPR, reports that a federal judge decided
on March 8 to expand a class action lawsuit to include thousands
more migrant families separated at the border before the Trump
administration's "zero tolerance" policy was announced in 2018.
U.S. District Judge Dana Sabraw's ruling vastly increased the
number of people potentially eligible for relief under a lawsuit
brought by the American Civil Liberties Union that challenged the
legality of the family separations, and banned the practice.
On June 26 of last year, Judge Sabraw ordered the government to
reunite the affected families.
At the time, the government was holding some 2,800 children
separated from parents in shelters nationwide. Since the June
ruling, immigration officials have reunited nearly all of those
children with parents, or released them to relatives or sponsors in
the U.S.
In his order expanding the class, Judge Sabraw cited a recent
report by the inspector general for the U.S. Department of Health
and Human Services that found the government had initiated family
separations at least a year earlier than the court knew.
The inspector general said, "thousands of children may have been
separated during an influx that began in 2017, before the
accounting required by the court."
The IG's investigation also revealed that inconsistent record
keeping of those separations meant there was no way to know the
total number of children separated from a parent or guardian by
immigration authorities.
Attorneys with the ACLU who represent migrant parents called the
OIG's report a bombshell.
Late last year they had asked Judge Sabraw to clarify whether
families separated before the judge's June injunction should be
eligible for the same relief.
In his 14-page decision, Judge Sabraw wrote that the parents who
had been excluded from the class had experienced the same alleged
violation.
"Like the current class members, they too were separated from their
children," Judge Sabraw wrote. "They were not reunited with their
children despite the absence of any finding they were unfit parents
or presented a danger to their children."
"The court made clear that potentially thousands of children's
lives are at stake, and that the Trump administration cannot simply
ignore the devastation it has caused," ACLU attorney
Lee Gelernt said in a statement in response to Judge Sabraw's
ruling.
The judge deferred any discussion of what remedy should be offered
to the families to future briefings, but at a hearing in February
had indicated the first step would be for the government to provide
an accounting of the new class members.
"So it seems to me if this motion is granted, step one, which is a
very significant step, would be the accounting, what are the
numbers, who are they, where are they? Step two is the remedy,"
Judge Sabraw said. "When there is an allegation of wrong on this
scale, one of the most fundamental obligations of the law is to
bring to light what that wrong was and what is the scope of the
wrong."
In his order on March 8 Judge Sabraw defined the additional class
members as all migrant families separated between July 1, 2017, and
June 25, 2018.
During that time a total of 47,083 children passed through the
Office of Refugee Resettlement, the agency within the US Health and
Human Services that's responsible for the care of migrant children
who arrive without a parent or have been separated from them.
According to a court filing by the agency's deputy director, Jallyn
Sualog, all of those cases would need to be reviewed to identify
which children were separated from a parent.
The government had argued that the burden was too great and would
take too long.
Judge Sabraw rejected that reasoning.
"Although the process for identifying newly proposed class members
may be burdensome, it clearly can be done," he wrote.
Judge Sabraw concluded that the extra effort required to identify
the additional children could not be considered "unfair."
"The hallmark of a civilized society is measured by how it treats
its people and those within its borders," he wrote.
When zero tolerance really began
The "zero tolerance" policy resulted in widespread criminal
prosecution of parents, whose children were taken from them when
they were sent to jail, and transferred to government shelters.
The policy appears to be the public adoption of family separations
that began in the earliest days of the Trump administration.
That was not what Judge Sabraw understood when he issued his June
26, 2018 injunction to halt the practice.
At a Feb. 21 hearing Judge Sabraw reminded government attorneys
that as recently as June 6, 2018, in a motion to dismiss the class
action lawsuit on behalf of parents whose children were taken from
them, they stated there was no policy or practice of separating
families.
"That was the government's response, and I accept that that
response was made in good faith. But thereafter much has come to
light," Judge Sabraw told Deputy Assistant Attorney General Scott
Stewart. "What appears to be unknown to everyone here was that ORR
had a tremendous spike in the number of unaccompanied children
being delivered to them, far before the lawsuit was filed."
Also unknown to the court, was that ORR had delivered those
children out to sponsors before June 26.
Judge Sabraw said his decision to limit reunifications to children
still in ORR care on June 26th was based on what he knew at the
time.
At the Feb. 21 hearing ACLU attorney Lee Gelernt, told the judge he
reserved the right to expand the class further if earlier family
separations proved unlawful.
How the Trump administration expanded family separations
Immigration officials have long separated children from parents and
guardians for cause under an anti-trafficking statute, known as the
Trafficking Victims Protection Reauthorization Act (TVPRA). In
2016, however, those separations rarely occurred, according to the
IG's report.
Children separated from parents made up less than half a percent
(0.3 percent) of the children referred to the ORR in 2016, the
report noted, but by August of 2017 that number had increased to
3.6 percent.
The IG found that the increase resulted from a letter the U.S.
Attorney General sent to federal prosecutors in the Spring of 2017,
ordering them to prioritize criminal charges for
immigration-related offenses.
The IG also found that the administration began piloting the "zero
tolerance" policy in El Paso, Tx. in July 2017.
By December 2017 numerous immigrant advocates alleged a major
increase in separations in a complaint filed with the Department of
Homeland Security that called for the inspector general of the
agency to investigate.
The ACLU filed a class action suit challenging the practice in
February of 2018.
The Trump administration did not announce its "zero tolerance"
policy until May of 2018, one month after it had been expanded to
the whole southern border. [GN]
UPLAND SOFTWARE: BakerHostetler Attorneys Discuss Court Ruling
--------------------------------------------------------------
Alan L. Friel, Esq. -- afriel@bakerlaw.com -- Linda Goldstein, Esq.
-- lgoldstein@bakerlaw.com -- Amy Ralph Mudge, Esq. --
amudge@bakerlaw.com -- and Randal M. Shaheen, Esq. --
rshaheen@bakerlaw.com -- of BakerHostetler, in an article for
Mondaq, report that at first glance, it's just a run-of-the-mill
Telephone Consumer Protection Act (TCPA) class action.
Back in early 2018, Georgia citizen Ricky Franklin sued Upland
Software, a Texas company, for allegedly sending more than 20
unwelcome text messages to his phone. In his complaint, he claims
that he had never "provided his cellular phone number to the
Defendant or given his prior express consent to be called, whether
on his own or on behalf of any third party."
The rest of the suit should be familiar to any denizen of TCPA
Land: concrete and real invasions of privacy, extra charges, and
harm and damages from emotional distress leading to anger and
resentment.
And treble damages of $1,500 per text (augmented by $2,000 per text
under Georgia law).
Auto-Dialer Auto-Filer?
Here's where it gets interesting. Franklin allegedly has a bit of a
past in the TCPA lawsuit business. According to a counterclaim
filed by Upland a month after the original complaint, Franklin had
been involved in at least seven other TCPA lawsuits during the
prior three years. Worse than that, Upland alleged, Franklin had
been accused in "many" of the earlier cases of falsely claiming
that the messages he received were unsolicited.
Upland went on to maintain that Franklin had received his phone
from Benita Ross (possibly his wife), who previously had consented
to receive texts from Upland's client. Upland wrote, "He therefore
knew, prior to sending a demand letter to Upland in February 2018
and filing this suit in March 2018, that Benita Ross had opted in
to receive phone calls and text messages ..."
And with that, Upland hit Franklin with a suit for common-law fraud
and fraud for nondisclosure. Generally, such allegations would be
used to support a motion to dismiss. But in an age of rampant TCPA
lawsuits, one company simply had enough -- or, if the allegations
are false, thought such a countersuit would be a smart defense
strategy.
In the court's recent report on the case, which responded to
Franklin's motion for summary judgment and motion to dismiss the
counterclaims, the judge gave this approach a green light.
Against the Grain
Before we address that issue, however, one argument from Franklin's
motion for summary judgment bears examination.
Franklin claimed Upland was liable because it provided the texting
service to the vendor that was doing the marketing to Ross. This
accusation aligns with a recent TCPA trend that punishes platforms
for the sins of the clients who use them, but in this case, the
court favored the defendant.
"[Upland's] platforms require significant human intervention and
sorting on almost all aspects of the text messages and the
platforms do not have the capacity to act as an auto dialer," the
court held. "In the Court's examination of the summary judgment
evidence, it can find nothing to suggest that Upland initiated the
text messages or that an ATDS was used. To the extent that Franklin
relies on a theory of vicarious liability, he does not succeed in
his motion."
On to the fraud.
The Takeaway
On the fraud claims, the court was blunt.
"Taking all of Upland's factual allegations as true," the court
wrote, "Upland has pled enough factual content to allow the Court
to draw the reasonable inference that Franklin is liable for the
misconduct alleged."
Serial TCPA litigants -- honest or not -- take notice: Defendants
have a new weapon in their arsenal. [GN]
VISIONSTREAM: Shine Lawyers Attorney Expects to File Class Action
-----------------------------------------------------------------
Tom Pullar-Strecker, writing for Stuff.co.nz, reports that
broadband company Chorus has confirmed it will make changes to its
controversial subcontracting model in the wake of action against
contractors by the Labour Inspectorate and a related inquiry it
launched in October.
Spokesman Ian Bonnar said he could not say what the changes would
be, or how significant they would be.
"But we are not going to stand up and say 'all is well, carry on as
you were'."
In February, Labour Inspectorate spokesman Michael Docherty said it
had lodged claims with the Employment Relations Authority against
three firms that had carried out work for Chorus on the ultrafast
broadband network after detecting "widespread" breaches of
employment law.
These were Auckland firms 3ML, Sunwin Technologies and Babylon
Communications.
Infringement and improvement notices had been issued to another 34
companies with action against dozens more in the pipeline.
Chorus responded to the Labour Inspectorate's concerns by
establishing its own inquiry headed by former deputy State Services
Commissioner Doug Martin which has since expanded to also consider
a range of accusations made a group of whistleblowers.
The latter included accusations of subcontractors not being paid
for "scoping work" connecting homes to UFB as agreed, and
allegations of conflicts of interest among Chorus and Visionstream
managers over which Mr. Bonnar has said both companies have since
taken action.
The whistleblowers also told Martin at a meeting brokered by Stuff
in December that they suspected that a Visionstream manager had
regularly accepted bribes for approving linesmen to carry out work
on the broadband network.
Mr. Bonnar said it was "pretty unlikely" Chorus would completely
drop either of its prime contractors, Visionstream and UCG, as a
result of Martin's report which is due to completed within weeks.
"But let's wait for the report and see what it says."
Tim Gunn, an Auckland-based partner at Australian law firm Shine
Lawyers, reiterated that it expected to file a class action lawsuit
against Visionstream, which is Chorus' largest contractor, within
months.
The class action would be on behalf of at least "hundreds" and
possibly thousands of individual subcontractors who he said had
been working under "slavish" conditions but who Shine Lawyers will
argue were legally entitled to be treated as employees.
The E tu union has backed the legal action, which will seek back
pay, holiday pay and sick pay.
One former linesman who has agreed to be represented by Shine
Lawyers in the class action lawsuit said the business model in the
industry was designed to pass business risks on to small
subcontracting firms, such as one he ran which later went
bankrupt.
They were promised a certain revenue stream, causing them to borrow
to hire technicians and buy vans, tools and equipment, he said.
"A number of months later they are trapped and it turns into a
poker machine style of gambling business until they eventually go
belly up.
"This eventually pushes out local hiring to techs usually from
outside New Zealand willing to put up with the lower rates until
they can no longer continue. This creates a huge revolving door and
exterminates the local skilled market," he said. [GN]
VOLKSWAGEN AG: Manlove Moves for Class Certification Under FLSA
---------------------------------------------------------------
The Plaintiff in the lawsuit styled JONATHAN MANLOVE, Individually,
and on behalf of others similarly situated v. VOLKSWAGEN
AKTIENGESELLSCHAFT, VOLKSWAGEN GROUP OF AMERICA, INC., and
VOLKSWAGEN GROUP OF AMERICA CHATTANOOGA OPERATIONS, LLC, Case No.
1:18-cv-00145-TRM-CHS (E.D. Tenn.), moves pursuant to Section
216(b) of the Fair Labor Standards Act for an order:
-- conditionally certifying an Age Discrimination in
Employment Act collective action; and
-- authorizing the mailing of notice and consent to join forms
to members of the proposed collective action.[CC]
The Plaintiff is represented by:
Kevin H. Sharp, Esq.
Leigh Anne St. Charles, Esq.
SANFORD HEISLER SHARP, LLP
611 Commerce Street, Suite 3100
Nashville, TN 37203
Telephone: (615) 434-7000
Facsimile: (615) 434-7020
E-mail: ksharp@sanfordheisler.com
lstcharles@sanfordheisler.com
- and -
Andrew Melzer, Esq.
SANFORD HEISLER SHARP, LLP
1350 Avenue of the Americas, 31st Floor
New York, NY 10019
Telephone: (646) 402-5657
Facsimile: (646) 402-5651
E-mail: amelzer@sanfordheisler.com
Defendants Volkswagen Aktiengesellschaft, Volkswagen Group of
America, Inc., and Volkswagen Group of America Chattanooga
Operations, LLC, are represented by:
Bradford G. Harvey, Esq.
Charles B. Lee, Esq.
Megan Welton, Esq.
Jessica Malloy-Thorpe, Esq.
MILLER & MARTIN, PLLC
832 Georgia Avenue
1200 Volunteer Building
Chattanooga, TN 37402
Telephone: (423) 756-6600
E-mail: bharvey@millermartin.com
clee@millermartin.com
megan.welton@millermartin.com
jessica.malloy-thorpe@millermartin.com
- and -
Michael W. Johnston, Esq.
Rebecca Cole Moore, Esq.
KING & SPALDING LLP
1180 Peachtree Street, N.E.
Atlanta, GA 30309
Telephone: (404) 572-4600
E-mail: mjohnston@kslaw.com
rcolemoore@kslaw.com
VOLKSWAGEN GROUP: Diesel Scandal May Pave Way for Class Actions
---------------------------------------------------------------
Alexander Hagelueken, writing for The German Times, reports that
German CEOs tend to get nervous when confronted with legal problems
in the United States. To be sure, class action lawsuits are often
associated with major financial costs. This is exactly what
Volkswagen found out when the diesel scandal broke. While there is
much criticism of class action suits, primarily regarding the large
sums involved in litigation, there have been growing calls in
Germany for more consumer rights in the face of powerful
companies.
The unique feature of a US class action is that individuals can
join such lawsuits without first having to prove the extent of
damages suffered. This rule applied to the half-million people in
the US who bought a Volkswagen car with software rigged to conceal
actual exhaust levels. It was a very expensive misstep for
Volkswagen; the Wolfsburg-based automaker estimated the cost at
roughly $20,000 per customer for the repurchase of vehicles and
other compensation.
In 2016, with the addition of legal fines, the sum came to more
than $20 billion. The auto supplier, Bosch, paid the owners of
diesel cars more than $300 million following a settlement. Deutsche
Bank was also subjected to a class action suit and paid a total of
$170 million to institutional and private investors. In that case,
traders had manipulated the LIBOR interest rate to which more than
$400 billion in worldwide financial products are tied.
One thing is for sure: None of the companies charged in these cases
were innocent lambs, and all of them were called to atone for their
misconduct.
In light of this, any accusations that these costly lawsuits are a
politically motivated campaign waged against German companies and
designed to damage rivals of US companies seem absurd. American
companies themselves are subject to class action lawsuits. For
example, Citigroup, the US banking and financial services
corporation, was involved in Deutsche Bank's interest rate
manipulation and it, too, had to pay millions to the plaintiffs.
The hefty damage claims are also a product of legal differences. In
Germany, compensation serves to amend the damages suffered by the
customer, but the state also tries to ensure the safety and
fundamental quality of products by means of laws and controls. In
the US, by contrast, the government exercises far less regulatory
intervention in manufacturing. Instead, potentially high punitive
damages are supposed to keep companies in check and encourage them
to produce trustworthy goods.
The criticism coming out of Germany is aimed above all at the large
sums involved in some situations, such as the Volkswagen case, for
example. VW sold automobiles using rigged diesel technology to a
half a million customers in the US; in Europe, however, it sold
such vehicles to eight and a half million people, that is, to 17
times as many customers. Following the class action logic, if VW
were to agree to a settlement with customers in Europe based on the
US model, it would cost the corporation up to 17 times more, i.e.
over €150 billion. This would presumably lead to the largest
European automobile company – which has more than a half million
employees – having to declare bankruptcy. Can this be the goal of
lawsuits, even when the company does not contest its misconduct?
"If the US were everywhere, VW would be broke," wrote Heribert
Prantl in the Sueddeutsche Zeitung after the settlement. "The high
sums and the pressure generated by the US system are inaccurate
representations of the actual quality of this legal protection."
As Volker Votsmeier advised in Handelsblatt, the US legal system
provides plaintiffs and their lawyers with "instruments of torture"
that Germany should most definitely not import. "Companies in the
US are threatened with high punitive damages that are determined by
lay juries and are hardly calculable." But these torture
instruments are not the only thing putting pressure on companies.
"Even when the underlying claims are doubtful," argues European
Parliament member Andreas Schwab (CDU), "most companies are forced
to engage in out-of-court settlements to avoid losing their
reputation or having to pay tremendous legal costs."
And then there are the claimant lawyers who actively seek out
clients. To some individuals, these lawyers enter the scene as
white knights, fighting for those who have been disenfranchised and
merely helping citizens assert their rights against powerful
corporations. For example, Michael Hausfeld is one of the stars of
the scene, and he certainly fights for noble causes.
Mr. Hausfeld represented native peoples in Alaska after the
devastating Exxon Valdez disaster of 1989. He also secured $1.2
billion in compensation from Swiss banks and financial institutions
after proving they had siphoned money from Jewish clients in World
War II.
Still, critics disapprove of these lawyers' business model. In
contrast to their colleagues in Germany, US class action lawyers do
not receive a fixed fee; instead, if they bring the case to a
successful close, they can cash in big time – sometimes receiving
up to 30 percent of total compensation paid. In the VW case, that
would have been billions.
The approach taken by some US law firms was on display recently
when news broke of a presumptive auto cartel between large German
manufacturers. In 2017, four days after Der Spiegel had reported on
the unsettled accusations, a US law firm submitted a 70-page
complaint to the district court in New Jersey.
Klaus Mueller, head of the Federation of German Consumer
Organizations (VZBZ), refers to such moves as "commercially driven
lawsuits." Heribert Prantl, a former judge and state prosecutor in
Bavaria, seconds that motion: "An entire industry sprang up around
the class action lawsuit. It is set up in such a way that lawyers
do everything they can to bring together as many plaintiffs as
possible and then submit the highest claims possible. As their fee
is based on the actual sum of the damages paid, US lawyers tend to
earn far more on class action suits than their clients receive."
Member of European Parliament Schwab criticizes what he sees as
false incentives: "Lawyers on the other side of the Atlantic
advertise for additional class action plaintiffs via newspapers and
TV ads. After all, the more injured parties that join the lawsuit,
the higher their combined threat. And, owing to the system of
success-based compensation, the majority of compensation payments
often lands in the hands of the lawyers. On average, each
individual claimant receives only $32."
Politicians like Schwab warn against importing this system to
Europe or Germany. And yet, particularly in the case of Volkswagen,
it is easy to see that while companies are hit perhaps too hard in
the US, the German system fails to give consumers any better
opportunities. Can they hope for some sort of compensation for VW's
diesel manipulation? It remains entirely unclear. The case has now
prompted even louder calls to better protect consumers.
A new declaratory model action has now emerged in Germany; a
Musterfeststellungsklage seeks to strengthen the rights of
consumers in cases such as the diesel scandal without adopting the
excesses of the US class action suit. For example, until now, a
German VW customer would have been able to do little more than hope
that a judge would classify the manipulated exhaust values as a
serious deficiency; he or she would then have had to make his or
her way alone through the legal system, without co-plaintiffs.
Also, until recently, he or she would have had to file a lawsuit at
the district court, thus facing immediate costs of EUR3,000 or
more.
The Musterfeststellungsklage now lowers the threshold. For example,
in the VW case, plaintiffs can put their names on a list without
incurring any costs. Germany's Federal Office of Justice is
responsible for collecting the applications. The idea is to have a
central authority gather evidence on questions of compensation in
similar cases. The risk of litigation then lies with the consumer
advocates. By early February, more than 400,000 auto buyers had
already entered their names on the list. "The high number of
registrations proves that the Musterfeststellungsklage is an
important instrument for many of those affected," notes consumer
advocate Klaus Müller.
Exactly when the trial against VW will get under way is uncertain.
Once it does, it will become clear whether the
Musterfeststellungsklage is a suitable instrument for giving German
consumers more rights without becoming a carbon copy of US class
action law suits. [GN]
WELLS FARGO: Rule 23 Class Certification Sought in CS Wang Suit
---------------------------------------------------------------
Plaintiffs CS Wang & Associate, Sat Narayan dba Express Hauling,
Robert Meyer dba Mangia Nosh, Taysir Tayeh dba Chief's Market, and
Jay Schmidt Insurance Agency, Inc., move the Court for an order
certifying the case captioned CS WANG & ASSOCIATE, et al. v. WELLS
FARGO BANK, N.A., et al., Case No. 1:16-cv-11223 (N.D. Ill.), as a
class action pursuant to Rule 23 of the Federal Rules of Civil
Procedure.
The Plaintiffs also move for leave to file a memorandum in support
of this motion within six months.
The Plaintiffs filed their original class certification motion on
July 16, 2018. After joining the case, Plaintiff Jay Schmidt
Insurance Agency, Inc. joined that motion. On March 13, 2019, the
Court struck the Plaintiffs' motions for class certification
without prejudice subject to renewal on May 15, 2019.
Out of an abundance of caution and in order to prevent "pickoff"
attempts by the Defendants, the Plaintiffs file their Renewed
Motion for Class Certification now.
This litigation involves more than a million secretly recorded
telephone calls made to California small businesses by two
telemarketing companies acting on behalf of large banks and
national credit card payment processing companies. Both of the
telemarketing companies in this case--International Payment
Services, LLC ("IPS") and Ironwood Financial, LLC
("Ironwood")--adopted a uniform policy of recording all of their
outbound telemarketing sales calls. Furthermore, the employees
working in IPS's and Ironwood's call centers followed standardized
call scripts and training that did not warn California small
businesses that calls were being recorded.
* * *
The Honorable Rebecca R. Pallmeyer previously ruled that the
Plaintiffs' motion for class certification is stricken without
prejudice to renewal on the date that the opening brief is
scheduled for submission.[CC]
The Plaintiffs are represented by:
Myron M. Cherry, Esq.
Jacie C. Zolna, Esq.
Benjamin R. Swetland, Esq.
Jessica C. Chavin, Esq.
MYRON M. CHERRY & ASSOCIATES LLC
30 North LaSalle Street, Suite 2300
Chicago, IL 60602
Telephone: (312) 372-2100
E-mail: mcherry@cherry-law.com
jzolna@cherry-law.com
bswetland@cherry-law.com
jchavin@cherry-law.com
WEST MORGAN-EAST: Court Dismisses Amended W. King Suit
------------------------------------------------------
In the case, WILLIE KING, et al., Plaintiffs, v. WEST MORGAN-EAST
LAWRENCE WATER AND SEWER AUTHORITY, et al., Defendants, Civil
Action No. 5:17-cv-01833-AKK (N.D. Ala.), Judge Abdul K. Kallon of
the U.S. District Court for the Northern District of Alabama,
Northeastern Division, granted 3M Co.'s motion to dismiss the
amended complaint.
The Plaintiffs bring the action individually and on behalf of a
putative class of similarly situated individuals for personal
injuries allegedly caused by exposure to pollutants in the
Tennessee River. The Plaintiffs assert claims of negligence,
nuisance, fraudulent concealment, and wantonness against the
Authority, 3M, Dyneon, L.L.C.,1 and Daikin American, Inc.
The action arises from 3M's and Daikin's discharge of
perflurooctanoic acid ("PFOA"), perflurooctanesulfonic acid
("PFOS"), and related chemicals into the Tennessee River and its
tributaries. Doc. 8 at 5-13. Specifically, the Plaintiffs plead
that 3M and Daiken own and operate manufacturing and disposal
facilities in Decatur, Alabama that allegedly continue to release
PFOA, PFOS, and related chemicals into groundwater and surface
water through which the chemicals are discharged into the Tennessee
River and its tributaries. The Plaintiffs further allege that
these Defendants also discharge the contaminated wastewater into
the Decatur Utilities Wastewater Treatment Plant.
Allegedly, the chemicals in question, PFOA and PFOS, persist in the
environment because they have no known environmental breakdown
mechanism. In addition, the human body readily absorbs PFOS and
PFOA, and the chemicals tend to accumulate over time with repeated
exposure. Studies, including one by an independent science panel,
have found a probable link between PFOA and PFOS exposure and
kidney and testicular cancer. Other human health risks include
thyroid disease, ulcerative colitis, pregnancy-induced
hypertension, and high cholesterol. The The Plaintiffs, who have
been diagnosed with kidney, cancer, thyroid disease,
hyperthyroidism, thyroid cancer, or ulcerative colitis, allege that
3M has known for at least 35 years that PFOA, PFOS, and related
chemicals are toxic, persist in the environment, and accumulate in
the human body.
The Authority draws water from the Tennessee River to provide to
its customers in Morgan and Lawrence County, Alabama. Id. The
Plaintiffs allege that, despite knowing about the potential risks
of PFOA and PFOS exposure, 3M continues to discharge PFOA, PFOS,
and related chemicals into the River 13 miles upstream from the
Authority's water intake source. As a result, the Authority has
distributed and continues to distribute water containing these
chemicals to the Plaintiffs. Since 2009, the Authority has
consistently found PFOA levels at 0.1 ppb and PFOS levels at 0.19
ppb in the water it provides to the Plaintiffs and the proposed
class.
The Plaintiffs allege personal injuries from their exposure to
unsafe levels of PFOA, PFOS, and related chemicals in their
drinking water, and assert common law claims for negligence,
nuisance, fraudulent concealment, and wantonness against 3M. 3M
has moved to dismiss all claims against them, and has also moved to
stay in light of West Morgan-East Lawrence Water and Sewer
Authority, et al. v. 3M Company, et al., a previously-filed class
action currently pending before the Court as Case No.
5:15-cv-01750-AKK. The Court turns now to the parties' respective
contentions, beginning with the motion to stay.
According to 3M, the Plaintiffs' claims are similar to and subsumed
by the class claims in the West Morgan Action. This contention
overlooks that, unlike the case, the West Morgan Action does not
involve any claims for personal injuries. In addition, the
Authority, which is a Defendant in the case, is a plaintiff in the
West Morgan Action. Thus, Jugde Kallon finds that the claims in
these two lawsuits are not substantially similar to warrant a stay
of the case.
3M raises two primary arguments for dismissal: (1) that the claims
against them are time-barred, and (2) that the Plaintiffs have
failed to plead viable claims. The Judge finds that (i) even if
the federally required commencement date ("FRCD") is no later than
Oct. 5, 2015, 3M has not established at this juncture that the
Plaintiffs' claims are time-barred; (ii) the Plaintiffs'
allegations do not establish that the Authority's alleged
negligence is the intervening cause of the Plaintiffs' injuries,
and 3M has not shown that the negligence and wantonness claims;
(iii) the Plaintiffs sufficiently allege they suffered special
injuries as a result of the contamination that are different in
degree and kind from the injury suffered by the public at large;
and (iv) the Plaintiffs have pleaded sufficient facts to support a
duty to disclose on their fraudulent concealment claim.
For all of these reasons, Judge Kalloon denied 3M's motion to stay,
and motion to file supplemental brief. He granted 3M's motion to
dismiss as to the private nuisance claims, and these claims are
dismissed with prejudice. In all other respects, he denied the
motion to dismiss. The court will reserve ruling on the
sufficiency of the class allegations until a later date. 3M and
Dyneon will answer the Amended Complaint by April 5, 2019. In
addition, the parties are directed to submit by April 12, 2019 a
Rule 26(f) report that has the case ready for trial by March 2021.
A full-text copy of the Court's March 13, 2019 Memorandum Opinion
and Order is available at https://is.gd/Gz8YJT from Leagle.com.
Willie King, Tammi Yarbrough, Kristin Winchester, Betty Willhoite,
Theresa White, Carrie Warren, Steve Robinson, Sarah Pride, Linda
Pride, Mary Mitchell, Gwendolyn Miller, Mike Lampkin, Rita Faye
King, Alice Jones, Vanessa Hampton, Virgie Hampton, Samuel Gray,
Janet Bradford, Sandra Almon, Shelia Lambert, Reba Alexander,
Pamela Kirby, Chloe Rikard, Deanna Arnold & James Rogers,
Plaintiffs, represented by Craig L. Lowell --
clowell@wigginschilds.com -- WIGGINS CHILDS PANTAZIS FISHER &
GOLDFARB, Dennis G. Pantazis, WIGGINS CHILDS PANTAZIS FISHER &
GOLDFARB LLC, Dennis George Pantazis, Jr. -- dgp@wigginschilds.com
-- WIGGINS CHILDS PANTAZIS FISHER & GOLDFARB, Evan Dennis Pantazis
-- edp@wigginschilds.com -- WIGGINS, CHILDS, PANTAZIS, FISHER &
GOLDFARB & Patrick L. Pantazis -- ppantazis@wigginschilds.com --
WIGGINS, CHILDS, PANTAZIS, FISHER, & GOLDFARB, LLC.
West Morgan-East Lawrence Water and Sewer Authority, Defendant,
represented by Roderick K. Nelson -- rnelson@spain-gillon.com --
SPAIN & GILLON LLC.
3M Company, Defendant, represented by Harlan Irby Prater, IV --
hprater@lightfootlaw.com -- LIGHTFOOT FRANKLIN & WHITE LLC, M.
Christian King -- cking@lightfootlaw.com -- LIGHTFOOT FRANKLIN &
WHITE LLC, Tyler D. Alfermann -- talfermann@mayerbrown.com -- MAYER
BROWN LLP, pro hac vice, Richard F. Bulger --
rbulger@mayerbrown.com -- MAYER BROWN LLP, pro hac vice & W. Larkin
Radney, IV -- lradney@lightfootlaw.com -- LIGHTFOOT FRANKLIN &
WHITE LLC.
Dyneon LLC, Defendant, represented by Harlan Irby Prater, IV,
LIGHTFOOT FRANKLIN & WHITE LLC, Richard F. Bulger, MAYER BROWN LLP,
pro hac vice, Tyler D. Alfermann, MAYER BROWN LLP, pro hac vice &
W. Larkin Radney, IV, LIGHTFOOT FRANKLIN & WHITE LLC.
Daikin America Inc, Defendant, represented by Steven Frank Casey,
JONES WALKER LLP & Christopher L. Yeilding, BALCH & BINGHAM LLP.
WORD & BROWN: Marin Suit Alleges Labor Code Violations
------------------------------------------------------
Abraham Marin, individually and on behalf of other members of the
general public similarly situated v. Word & Brown Companies, an
unknown business entity, and Does 1 through 100, Case No.
30-2019-01055348 (Ca. Super. Ct., Orange Cty., March 6, 2019), is
brought against the Defendants for violations of the California
Labor Code.
The Defendants hired the Plaintiff and the other class members,
classified them as hourly-paid or non-exempt employees, and failed
to compensate them for all hours worked and missed meal periods
and/or rest breaks, says the complaint.
The Defendants, jointly and severally, employed Plaintiff as an
hourly-paid, non-exempt employee, from approximately July 2015 to
approximately July 2017, in the State of California, County of
Orange.
The Defendant Word & Brown Companies, at all times herein
mentioned, was and is, upon information and belief, an employer
whose employees are engaged throughout the State of California,
including the County of Orange. [BN]
The Plaintiff is represented by:
Edwin Aiwazian, Esq.
LAWYERS FOR JUSTICE, PC
410 West Arden Avenue, Suite 203
Glendale, CA 91203
Tel: (818) 265-1020
Fax: (818) 265-1021
ZION OIL: Continues to Defend Putative Class Action in Texas
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Zion Oil & Gas, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on March 8, 2019, for the
fiscal year ended December 31, 2018, that the company continues to
defend a putative class action lawsuit in U.S. District Court for
the Northern District of Texas.
Following the commencement of the Securities and Exchange
Commission (SEC) investigation, on August 9, 2018, a putative class
action (the "class action") Complaint was filed against Zion,
Victor G. Carrillo, the Company's Chief Executive Officer at such
time, and Michael B. Croswell Jr., the Company's Chief Financial
Officer in the U.S. District Court for the Northern District of
Texas.
On November 16, 2018, the Court entered an Order in the class
action appointing lead plaintiffs and approving lead counsel and on
January 22, 2019, an Amended Complaint was filed.
The suit alleges violations of Section 10(b) of the Securities
Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5
promulgated thereunder by the SEC and Section 11 of the Securities
Act of 1933 (the "Securities Act") against all defendants and
alleges violations of Section 20(a) of the Exchange Act and Section
15 of the Securities Act against the individual defendants The
alleged class period is from February 13, 2018 through November 20,
2018.
Zion Oil & Gas, Inc. operates as an oil and gas exploration company
in Israel. It holds a petroleum exploration license onshore Israel,
the Megiddo-Jezreel License that covers an area of approximately
99,000 acres. The company was founded in 2000 and is headquartered
in Dallas, Texas.
[*] Democratic Lawmakers' New Bill Aims to Help Defend Consumers
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Catherine Rampell, writing for Augusta Chronicle, reports that for
markets to work, you need a system where either the government
protects consumers or consumers can adequately defend themselves.
Or both. But you can't have neither. The "neither" option lands you
in a kleptocracy, which is basically where Republicans have been
leading the country for the past few years.
Happily, a new bill introduced by Democratic lawmakers would
restore at least some of consumers' diminished tools for
self-defense.
Republican politicians love to talk about their deregulatory
successes. They're not exaggerating: Under President Trump's
leadership, Republicans have repealed or watered down tons of
federal rules. If you look through a list of these deregulatory
efforts, you'll notice a striking pattern: Many of them loosen the
limits for how much harm businesses can inflict upon consumers.
There are many changes allowing more pollution, for instance.
These include the relaxation of Obama-era standards on coal-ash
disposal, which makes it easier for arsenic, mercury and lead from
power plants to potentially leak into the water supply. Or another
proposed rule allowing coal-fired power plants to release more fine
particulate matter into the air.
And there are the many decisions to simply stop enforcing laws and
regulations still on the books.
The Consumer Financial Protection Bureau, for instance, suspended
examinations of financial firms for compliance with the Military
Lending Act, which protects servicemembers and their covered
dependents from financial predators.
The Education Department has likewise failed to punish the
misbehaving student-loan servicers it supervises, as a recent
inspector general report found. Even as it remains asleep at the
switch, the department has tried to block other regulators and
state law enforcement officials from taking action against loan
servicers accused of cheating consumers.
If you're a conservative, you might argue that protecting consumers
is not the government's role; in a free market, consumers should
look out for themselves. If they have been harmed, they can seek
redress through the courts.
In fact, a Nobel Memorial Prize in Economic Sciences was awarded
for precisely this insight: You don't need burdensome government
regulations if you have strong property rights and the frictionless
ability to sue over those rights.
The prototypical example, which you might recall from a long-ago
economics course: You can have either strong pollution regulations
or strong property rights so that fishermen downstream can easily
recoup their costs if all their fish die thanks to water pollution.
Either should prevent plants upstream from dumping stuff in the
river.
But at exactly the same time that Republicans have been rolling
back supposedly burdensome regulations, they have also been making
it harder for downstream victims to seek redress.
For instance, Trump has been trying to eliminate all federal
funding for the Legal Services Corporation. This congressionally
established nonprofit funds legal-aid programs that help about 2
million low-income Americans seek civil justice each year.
Republican lawmakers have also tried to cap the amount of money
that consumers hurt by financial institutions can be awarded even
when they're successful in court. In fact, on the same day in 2017
that Equifax announced its massive data breach -- which affected
some 143 million Americans -- the GOP-controlled House held a
hearing on a bill to cap damages in class-action lawsuits against
credit bureaus.
But perhaps where the GOP has been most successful in curbing
consumers' ability to fight back relates to mandatory-arbitration
clauses.
This refers to language, typically buried in fine print, that
forces you to give up your right to sue. If you've taken out a
credit card, purchased a phone plan, checked a loved one into a
nursing home or even just accepted a new job in the past few years,
chances are you've agreed to these nonnegotiable terms — putting
you at a serious disadvantage if you're harmed.
This is not only because that company is likely bringing repeat
business to the arbitrator handling your case, making them more
likely to find in the company's favor. It's also because you've
probably waived your rights to join a class-action suit.
Republicans have repeatedly killed, undermined or delayed Obama-era
regulations designed to curb forced arbitration for disputes
involving financial institutions, nursing homes and for-profit
schools. But more than 150 Democratic lawmakers have signed on to
legislation to eliminate mandatory-arbitration clauses in consumer,
employment and civil rights cases (although parties could still
voluntarily agree to arbitration after a dispute occurs).
If the bill passes, it would be a step in the right direction. In
the best of all possible worlds, the government would also help
protect customers from misbehaving companies. At the very least,
though, it shouldn't be protecting misbehaving companies from their
customers. [GN]
[*] Democratic Senators to Introduce Bill to Narrow FAA
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Robert N. Ward, Esq., and Alysa Zeltzer, Esq., of Hutnik & Lauri
Mazzuchetti, in an article for Ad Law Access, report that
businesses often include mandatory arbitration clauses in their
pre-dispute dealings with customers to prevent costly consumer
class actions in favor of streamlined (often individual)
arbitration. The Federal Arbitration Act ("FAA") makes such
arbitration agreements "valid, irrevocable, and enforceable, save
upon such grounds as exist at law or in equity for the revocation
of any contract." Relying on the FAA, the Supreme Court has
defended business enforcement of such clauses against state- and
judge-made exceptions. For example, the Supreme Court has held
that the FAA preempts state laws that pose obstacles to its
enforcement, prevents courts from invalidating an arbitration
agreement on the basis of the cost to arbitrate exceeding the
potential recovery, and requires courts to enforce contractual
provisions that delegate to an arbitrator the determination of
whether an arbitration agreement applies to a dispute. As a
result, the existence and enforcement of mandatory, individual
arbitration agreements have become more commonplace in
consumer-facing industries.
Democratic senators are seeking to change this by introducing a
bill that would narrow the FAA by prospectively barring pre-dispute
arbitration agreements and class-action waivers in consumer,
employment, antitrust, and civil rights disputes. In these four
areas, the proposed legislation, entitled The Forced Arbitration
Injustice Repeal Act of 2019 (the "FAIR Act"), S. 635, H.R. 1423,
would also override agreements to have arbitrators determine
arbitrability or the FAIR Act's applicability to the dispute,
opting instead for courts to determine these issues under federal
law.
The FAIR Act likely faces the same opposition from Republicans that
have defeated similar proposals, including the renditions of the
"Arbitration Fairness Act" that were rejected from 2007 through
2018. Although the FAIR Act may garner attention in the current
political climate, in large part due to its employment-related
provisions, it likely faces an uphill battle in the current
Republican-controlled Senate and White House. But it's a bill
that's worth keeping an eye on. We'll continue to post updates on
any key developments. [GN]
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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
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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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