/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190429.mbx C L A S S A C T I O N R E P O R T E R Monday, April 29, 2019, Vol. 21, No. 85 Headlines AIR EVAC: W. Va. Court Narrows Claims in C. Hundley's Suit AIRCRAFT SERVICE: Adams Hits Employees' Biometrics Data Sharing ALASKA: Removes Spencer Medicaid Case to Federal District Court ALBUQUERQUE, NM: Sued Over Vehicle Seizure Program ASSERTIO THERAPEUTICS: May 2 Filing Date for 2nd Amended Huang Suit AT&T SERVICES: Summary Judgment Bid in Gadelhak TCPA Suit Granted AVON PRODUCTS: Faces Class Actions Amid Natura Acquisition Talks BANK OF AMERICA: Baltimore Sues Over Bond Interest Rates BANK OF HAWAII: Suit Related to Overdraft Fees Ongoing BANNER HEALTH: Bid to Exclude Kmak Testimony in Ramos Partly Okayed BIMBO FOODS: Conditional Certification of Franze Class Partly OK'd BISCOMERICA CORP: Court Dismisses Backus Without Leave to Amend BITMAIN: Investors Plan to File Class Action in Hong Kong BRAVO RESTAURANT: Cortez Hits Missed Breaks, Claims Overtime Pay CANCER GENETICS: Bid to Dismiss Consolidated NJ Suit Underway CAPTAIN GEORGE'S: Smith et al. Suit Moved to E.D. Virginia CARMAX INC: Rowland Class Action Dismissed CARMAX INC: Wage & Hour Class Suits in Calif. Still Ongoing CAS MEDICAL: Rigrodsky & Long Files Securities Class Action CBL PROPERTIES: Sets Aside $90MM for Class Action Settlement CHART INDUSTRIES: Stainless Steel Cryobiological Tank Suit Ongoing CHART INDUSTRIES: Suit over Aluminum Cryobiological Tank Underway CHASE BANK USA: Chen Credit Suit Removed to N.D. Cal. CHEMICAL & MINING: Class Cert. Bid in S.D.N.Y. Suit Still Pending CHRISTOPHER'S GOLDEN WOK: Zhongmin Suit Seeks Unpaid Overtime Wages CHRYSLER: Judge Tosses Consumer Fraud Class Action Over Sludge CLUB EROTICA: Jackson Hits Tip Pool, Fees; Claims Reimbursements COFFEE MEETS BAGEL: Bonell Hits Data Breach Over Security Lapse CONDUENT EDUCATION: Court Denies Bid to Dismiss Amended Chery Suit COOK COUNTY, IL: Vargas Fair Hearing Claim Dismissed With Prejudice CORECIVIC: Securities Suit Granted Class Action Status COSTCO WHOLESALE: Bond Seeks to Stop Deceptive Sale of Kona Coffee COSTCO WHOLESALE: Kona Coffee Farmers File Mislabeling Suit CSX CORP: Still Defends Fuel Surcharge Antitrust Litigation DITECH HOLDING: Kamimura Class Suit in Nevada Stayed EDEN MANAGEMENT: Faces Class Action Over Worker Fingerprint Scans ELLIE MAE: Rigrodsky & Long Files Securities Class Action EMPATH LLC: Technicians Seeks Unpaid Overtime, Illegal Deductions FLAGSHIP CREDIT: Settles TCPA Class Action for $4MM FORMEL D: McMurray Sues Over Unpaid Overtime Compensation GOOGLE INC: Gibson Dunn Attorney Discusses Cy Pres Ruling GREAT-WEST LIFE: Obtains Favorable Ruling in ERISA Class Action HILL'S PET: Dog Owners Sue Over Toxic Pet Food HONEYWELL INTERNATIONAL: Still Defends Kanefsky Class Action INT'L BUSINESS: Ex-Employees File Age-Discrimination Class Action KONA GRILL: Boots Suit Against Kona Sushi Underway L&K COFFEE: Faison Sues Over Counterfeit Kona Coffee LEON COUNTY, FL: Court Denies Bid to Certify Class in Knight Suit LESAINT LOGISTICS: Worker Files Lawsuit Over Fingerprint Scans LINN STAR TRANSFER: Aguilar Labor Suit Removed to N.D. Cal. LM FUNDING: Settlement in Solaris Suit Wins Final Approval LORAIN, OH: Lawsuit Over Water Rates Certified as Class Action MARLY BUILDING: Bar Suit Seeks Unpaid Overtime Wages, Damages MASSACHUSETTS MUTUAL: Aronstein Appeals Case Ruling to 1st Cir. MDL 2516: Calif. Appeals Ruling in Aggrenox Antitrust Litigation MDL 2741: 12 Suits Transferred to N.D. Cal. for Roundup Litigation MDL 2895: KPH Seeks Transfer of Four Antitrust Cases to E.D. Pa. MHP PHARMACY: Frank Hits Misclassification, Claims Overtime Pay MICHAEL P. MORTON: Denial of Ortez Class Certification Recommended MONTAIRE FARMS: Plaintiffs Will Have Voice in DNREC Settlement MORAN FOODS: Brown Hits Biometrics Data Sharing MOUNT ZION: Castanon Suit to Recover Unpaid Regular, Overtime Wages NCAA: Flasher Seeks Damages Over Injuries Sustained as an Athlete NCAA: Mum About Football Brain Hazard, Akinbiyi Suit Asserts NIO INC: Faces Class Action Over 2018 IPO NISSAN NORTH AMERICA: Dodson Says Vehicle Seat Sensor Defective NPS PROPERTY: Cohen Milstein Files Housing Discrimination Case NRA GROUP: Court Grants Summary Judgment Bid in Isaac FDCPA Suit OHANA MILITARY: Court Issues Show Cause Order in Lake Suit PACIFIC BELL: Cal. App. Affirms Dismissal of Angela Rel's Suit PORTFOLIO RECOVERY: Biganini Files FDCPA Suit in New York Ct. POWERCOMM HOLDINGS: Oral Argument in Randolph Suit on May 8 PRESS ENERGY: Burdett Suit to Recover Overtime Pay PROFESSIONAL DIVERSITY: Gerbie TCPA Action in Illinois Ends PUBLIC STORAGE: Class in Martinez-Santiago TCCWNA Suit Decertified QUEST DIAGNOSTICS: Vecchio Sues Over Unpaid Compensations REVOLUTION LIGHTING: Glancy Prongay Files Class Action ROYAL BANK: Freddie Mac Appeals Judgment in N.J. Carpenters Suit RUANE CUNIFF: Court Denies Bid to Intervene in Ferguson ERISA Suit SAGAL FILBERT: Court Denies Bid to Dismiss Jackson FDCPA Suit SCIENCE APPLICATIONS: Pays $190,000 in Bedingfield Class Suit SOULJA BOY: Fans Mull Class Action Over Unfilled Web Store Orders SPRINT/UNITED MANAGEMENT: Amaraut Seeks Pay for Off-the-Clock Work STAMPS.COM INC: Grabisch Hits Share Price Drop STANFORD UNIVERSITY: Faces Class Action Over Admissions Scandal STICKY'S HOLDINGS: Martinez Sues Over Blind-Inaccessible Website SUNNIVA INC: Faces Class Action Over NHS EMR Privacy Breach T-MOBILE NORTHEAST: Bid to Remand Edoff Data Breach Suit Denied TERNIUM SA: Consolidated Amended Complaint Due May 15 TESLA INC: Srinivasan Appeals Ruling in Wochos Suit to 9th Cir. TICKETMASTER LLC: Ninth Circuit Appeal Filed in Lee Class Suit TQ PIZZERIA: Underpays Kitchen Workers, Villanueva Alleges TRISTATE PARKING: Almonte Seeks to Recover Unpaid Wages TSR INC: Paskowitz Class Action Still Ongoing UCLA HEALTH: Settles Data Breach Class Action for $7.5MM UCONN HEALTH: Faces Class Action Over Patient Data Breach UNION PACIFIC: 8th Cir. to Hear Appeal from Class Cert. Order UNITED STATES: Williams Suit to Proceed in Forma Pauperis UQM TECHNOLOGIES: Plaintiffs Agrees to Dismiss Merger Related Suits VALE SA: Bid to Dismiss Samarco Bondholders Suit Still Pending VALE SA: Discovery Ongoing in ADR Investors' Suit VALE SA: Suits Over Fundao Dam Collapse Ongoing VICE MEDIA: Settles Pay Discrimination Class Action for $1.87MM WELLS FARGO: Court Dismisses Juan Olivo's Suit Without Prejudice WEST MIAMI: Suarez et al. Seek Unpaid Overtime Wages YALE UNIVERSITY: Faces Class Action Over Admissions Scandal ZTO EXPRESS: Bid to Dismiss Nurlybayev Class Suit Remains Pending ZTO EXPRESS: Birmingham Retirement & System Suit Still Stayed ZTO EXPRESS: Guo and McGrath Suits Remain Stayed [*] Nick Sherry Expects Superannuation Fee Gouging to Continue [*] UCBA Sponsors Assembly Bill 1417 to Curb Illegal Cannabis Ads ********* AIR EVAC: W. Va. Court Narrows Claims in C. Hundley's Suit ---------------------------------------------------------- Judge John T. Copenhaver, Jr. of the U.S. District Court for the Southern District of West Virginia, Charleston, granted in part and denied in part the Defendants' motions to dismiss the case, CONNIE R. HUNDLEY, individually and on behalf of those similarly situated, Plaintiff, v. AIR EVAC EMS, INC., d/b/a AirMedCare Network; and MED-TRANS CORPORATION, Defendants, Civil Action No. 2:16-cv-12428 (S.D. W. Va.). Plaintiff Hundley is a resident of Mingo County, West Virginia. Upon solicitation by Matthew Ellis, Ms. Hundley paid $300 to buy a "membership" to the "AirMedCare Network," a trade name of Defendant Air Evac, a Missouri Corporation. The AirMedCare Network is an association of air ambulance providers that sells memberships which provide Network members with no out-of-pocket expenses for air ambulance services provided by the following companies: Defendant Air Evac; EagleMed, LLC; REACH Air Medical Services, LLC, and Defendant Med-Trans Corp. As stated in the Terms and Conditions of membership, a membership ensures no out-of-pocket flight expenses if flown by the Company or another AirMedCare Network participating provider by providing prepaid protection against AirMedCare Network Provider air ambulance costs that are not covered by a member's insurance or other benefits or third party responsibility. The terms and conditions clarify that in certain circumstances beyond the company's control, air ambulance services may be unavailable. Defendant Med-Trans is one of the affiliated companies in the AirMedCare Network. AirMedCare and Med-Trans are separate legal entities; the latter is incorporated in North Dakota. On July 25, 2015, Hundley was involved in a motorcycle accident in Tennessee. Due to her injuries, she was transported to the University of Tennessee Medical Center by an air ambulance operated by defendant Med-Trans. She was an AirMedCare Network member at the time. Following the incident, Hundley received from Med-Trans a demand for payment by her or third parties in the amount of $33,893.22, the full cost of the flight. Hundley then brought the lawsuit, individually and on behalf of a class of persons who are citizens of the State of West Virginia as of the date the action is filed and who have purchased or renewed memberships with AirMedCare Network, claiming that her membership should have indemnified her for the full flight cost, and that AirMedCare was not authorized to collect the $300 she paid for her membership because AirMedCare was not a licensed insurer. Hundley brought claims for breach of contract against AirMedCare and Med-Trans (Counts I and V), violation of West Virginia Unfair Trade Practices Act ("WVUTPA") against AirMedCare and Matthew Ellis (Count II), common-law bad faith against AirMedCare (Count III), and illegal debt collection under the West Virginia Consumer Credit and Protection Act ("WVCCPA") against AirMedCare (Count IV). On Dec. 22, 2016, AirMedCare removed the case to federal court pursuant to the Class Action Fairness Act. Pending are the Defendants' motions to dismiss, filed Dec. 29, 2016 and Feb. 2, 2017. AirMedCare seeks to dismiss each of Ms. Hundley's claims. First, AirMedCare argues that the AirMedCare Network membership program is not insurance under West Virginia law and any claim resting on that premise (Counts I-IV) must be dismissed. Second, AirMedCare contends that the non-contract claims (Counts II-IV) must be dismissed for being preempted by the Airline Deregulation Act of 1978. Finally, AirMedCare seeks dismissal of the breach of contract claims (Counts I and V) for failing as a matter of law. As an initial matter, Judge Copenhaver dismisses Count IV pursuant to its recent decision in Hinkle v. Matthews. Count IV claims that AirMedCare engaged in illegal debt collection pursuant to the WVCCPA by collecting a $300 premium while not being a licensed insurer. In Hinkle, the Court determined a point of sale exchange is not a claim. The analysis is the same in the present case. The $300 sale was not a claim for debt collection purposes under the WVCCPA but was rather a point of sale exchange; Ms. Hundley paid $300 and received membership to the AirMedCare Network membership program. Accordingly, AirMedCare did not engage in debt collection regarding the $300 membership fee. Count IV is dismissed. AirMedCare contends that Counts I-III must be dismissed because the membership agreement is not insurance. The Judge finds that he holds insufficient factual knowledge to decide, at this juncture, whether the membership program constitutes insurance under the State ex rel. Safe-Guard Prod. Int'l, LLC v. Thompson analysis. Accordingly, he does not dismiss at this stage any claims on the ground that the membership program is not insurance. The Defendants next argue that Hundley's remaining non-contract claims (Counts II and III) should be dismissed for the independent reason of being preempted by the Airline Deregulation Act of 1978. As for Count III, while common law claims may be covered by the Airline Deregulation Act, it does not protect air carriers from suits alleging no violation of state-imposed obligations, but seeking recovery solely for the airline's alleged breach of its own, self-imposed undertakings. As for Count II, the claim hinges entirely on whether or not the membership program constitutes insurance. If it does not, the claim fails; if it does, the claim likely survives Airline Deregulation Act preemption because the McCarran-Ferguson Act protects from federal statutory challenges: (1) any state law that relates to the regulation of the business of insurance or (2) any state law enacted for the purpose of regulating the business of insurance. Because the Judge has found that he cannot yet determine whether the AirMedCare Network membership is insurance, he defers consideration of the preemption issue. Lastly, the Defendants seek to dismiss Counts I and V, the Plaintiff's breach of contract claims. AirMedCare seeks dismissal of these claims on a theory of prior breach, an affirmative defense. In light of the allegations on the face of the complaint, as well as the statements in the accompanying documents that the membership frees members from out-of-pocket expenses for in-network air ambulances, the Judge cannot conclude, as a matter of law, that the claims for breach of contract are not viable. Counts I and V are not dismissed. Accordingly, for the foregoing reasons, Judge Copenhaver granted the Defendants' motions to dismiss as to Count IV, and otherwise denied, and that Count IV be, and it is, dismissed. The Clerk is directed to forward copies of this order to all counsel of record and any unrepresented parties. A full-text copy of the Court's March 29, 2019 Memorandum Opinion and Order is available at https://is.gd/gkhmmq from Leagle.com. Connie R. Hundley, Individually and on behalf of all others similarly situated, Plaintiff, represented by Jonathan R. Marshall -- jmarshall@baileyglasser.com -- BAILEY & GLASSER, Michael C. Walker -- Michael@burnsidelaw.com -- BURNSIDE LAW, Raymond S. Franks, II -- rfranks@baileyglasser.com -- BAILEY & GLASSER & S. Douglas Adkins, CYRUS ADKINS & WALKER. Air Evac EMS, Inc., doing business as AirMedCare Network & Med-Trans Corporation, Defendants, represented by Carte P. Goodwin -- cgoodwin@fbtlaw.com -- FROST BROWN TODD, Joshua L. Fuchs -- jlfuchs@jonesday.com -- JONES DAY, pro hac vice & Nicole M. Perry -- nmperry@jonesday.com -- JONES DAY, pro hac vice. AIRCRAFT SERVICE: Adams Hits Employees' Biometrics Data Sharing --------------------------------------------------------------- Donathan Adams, individually and on behalf of all others similarly situated, Plaintiff, v. Aircraft Service International, Inc., Case No. 2019CH02684 (Ill. Cir., February 28, 2019), seeks an injunction requiring Defendants to cease all unlawful activity related to the capture, collection, storage and use of biometrics; and statutory damages together with costs and reasonable attorneys' fees for violation of the Illinois Biometric Information Privacy Act. Aircraft Service operates as Menzies Aviation where Adams worked as an hourly employee. He was required to "clock-in" and "clock-out" using a timeclock that scanned fingerprints. He alleges that Menzies improperly disclosed employees' fingerprint data to an out-of-state payroll services provider without their informed consent. [BN] Plaintiff is represented by: Frank Castiglione, Esq. Kasif Khowaja, Esq. The Khowaja Law Firm, LLC 70 East Lake Street, Suite 1220 Chicago, IL 60601 58402 Tel: (312) 356-3200 Fax: (312) 386-5800 Email: fcastiglione@khowajalaw.com kasif@khowajalaw.com - and - James X. Bormes, Esq. Catherine P. Sons, Esq. LAW OFFICE OF JAMES X. BORMES, P.C. 8 South Michigan Avenue, Suite 2600 Chicago, IL 60603 Tel: (312) 201-0575 ALASKA: Removes Spencer Medicaid Case to Federal District Court --------------------------------------------------------------- The State of Alaska removed the case, JENNIFER SPENCER, individually and on behalf of all those similarly situated, the Plaintiffs, vs. ADAM CRUM, in his official capacity as Commissioner of the Alaska Department of Health and Social Services, and SHAWNDA O'BRIEN, in her official capacity as Director of the Alaska Division of Public Assistance, the Defendants, Case No. 3AN-19-05386CI (Filed Feb. 27, 2019), from the Superior Court for the State of Alaska to the United States District Court for the District of Alaska. The District of Alaska Court Clerk assigned Case No. 3:19-cv-00087-SLG to the proceeding. The complaint seeks preliminary and permanent injunction requiring the Defendants to make final eligibility determinations and begin providing Medicaid coverage to all eligible individuals within 30 days after receiving their Medicaid applications or 90 days if a disability determination is required; the award of costs and expenses of litigation; the award of full reasonable attorney's fees; and such other and further compensatory or equitable relief, in violation of federal law related to Medicaid which arises under the laws of the United States.[BN] Attorney for the Defendants Alexander J. Hildebrand, Esq. ASSISTANT ATTORNEY GENERAL DEPARTMENT OF LAW PO Box 110300 Juneau, AK 99811-0300 Telephone: (907) 465-3600 E-mail: alexander.hildebrand@alaska.gov Attorneys for the Plaintiff: James J Davis, Jr., Esq. Goriune Dudukgian, Esq. NORTHERN JUSTICE PROJECT, LLC 310 K Street, Suite 200 Anchorage, AK 99501 E-mail: jdavis@njp-law.com gdudukgian@njp-law.com ALBUQUERQUE, NM: Sued Over Vehicle Seizure Program -------------------------------------------------- Chris Ramirez, writing for KOB 4, reports that the City of Albuquerque is facing a class action lawsuit. The plaintiffs claim the city illegally took their car, kept it for months or years, and then made millions by selling the vehicles. The lawsuit also claims the city continued the practice after it was ruled unconstitutional. Matthew Kiscaden was stopped by an Albuquerque police officer and arrested him on suspicion of driving with a revoked driver's license in 2017. Police seized his car and forced him to keep it on his driveway with a boot for nine months. "The case was dismissed. I then went home, contacted the city attorney and asked him to please come to my home and remove the boot and refund the money," Kiscaden said. "The city attorney at that time said, 'No, this is a civil matter, not a criminal matter, we are not going to remove the boot or refund the money.'" Kiscaden eventually the city nearly $3,000 in fees to remove the boot. He is one of thousands of people who share a similar story. The class action lawsuit alleges, between 2009 and 2016, the city generated $11.8 million in revenue by seizing vehicles, tacking on enormous fees and, in many cases, selling the cars at auction. "The motivation wasn't to seek justice, the motivation was to raise money in order to fund a program that was inherently unconstitutional," said attorney Shannon Kennedy, who is representing the class. Kennedy also alleges that some vehicles were nearly worthless after the city returned them. The city left a convertible on an impound lot for 19 months, with the top down. When its rightful owner got the car back, weather had ruined the interior. For Kiscaden, and many others like him, grapple with the fact that they were punished without a conviction, and forced to give up their car and then pay thousands to get it back. "It was very detrimental. I worked out in Rio Rancho at the time. The stress one has to go through and the anxiety one has to go though, it's almost a total life change," Kiscaden said. "My life was thrown upside down." The lawsuit points out that in 2015, the state legislature abolished civil forfeitures. In 2018, a federal court ruled that city was unconstitutionally seizing vehicles. Also in 2018, the New Mexico Court of Appeals ruled the city was violating the law by seizing cars. However, the suit claims throughout that time, the city continued sezing vehicles. KOB 4 reached out to Albuquerque Mayor Tim Keller's Office. A spokesperson said Mayor Keller stopped the program. City officials would not comment on the lawsuit because they said they hasn't seen it yet. [GN] ASSERTIO THERAPEUTICS: May 2 Filing Date for 2nd Amended Huang Suit ------------------------------------------------------------------- In the case, INCHEN HUANG, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. ASSERTIO THERAPEUTICS, INC., ARTHUR JOSEPH HIGGINS, JAMES A. SCHOENECK, and AUGUST J. MORETTI, Defendants, Case No. 3:17-cv-04830-JST (N.D. Cal.), Judge John S. Tigar of the U.S. District Court for the Northern District of California, San Francisco Division, has issued an order regarding the deadline for the filing of the Second Amended Complaint and the briefing schedule for anticipated motion(s) to dismiss. On Aug. 18, 2017, Huang filed a federal securities class action lawsuit against the Defendants. On Dec. 8, 2017, the Court entered an Order appointing the Depomed Investor Group as the Lead Plaintiff, and approving Levi & Korsinsky, LLP to serve as the Lead Counsel. On Feb. 6, 2018, the Lead Plaintiff filed its First Amended Complaint. The Defendants filed a Motion to Dismiss the First Amended Complaint on April 9, 2018. On March 18, 2019 the Court Granted the Defendants' Motion to Dismiss without prejudice, and gave the Lead Plaintiff 21 days to file a Second Amended Complaint. The Lead Plaintiff anticipates filing the Second Amended Complaint and the Defendants anticipate moving to dismiss the anticipated Second Amended Complaint. The parties have met and conferred regarding a schedule for the filing of a second amended complaint and a briefing schedule for the Defendants' anticipated motion(s) to dismiss. Having met and conferred, they've agreed to, and Judge Tigar granted, the following schedule for the filing of and responding to an amended complaint: a. The Lead Plaintiff will file a second amended complaint by May 2, 2019; b. The Defendants will answer or otherwise respond to the second amended complaint by June 17, 2019; c. If the Defendants move to dismiss the amended complaint, Lead Plaintiff will file its opposition(s) by Aug.t 1, 2019; d. The Defendants will file their replies in support of any motion(s) to dismiss by Aug. 30, 2019; e. The Counsel for the parties will meet and confer to agree on a proposed hearing date in connection with the motion to dismiss the consolidated amended complaint, subject to the Court's availability; and f. The initial scheduling date set forth in the Court's March 18, 2019 Order is vacated. A full-text copy of the Court's April 2, 2019 Order is available at https://is.gd/Uoy0aL from Leagle.com. Inchen Huang, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP, J. Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz LLP, pro hac vice, Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, pro hac vice & Patrick V. Dahlstrom -- pdahlstrom@pomlaw.com -- Pomerantz LLP. Depomed Investor Group, "Lead Plantiff", Plaintiff, represented by Adam Christopher McCall, Levi & Korsinsky, LLP, Adam Marc Apton, Levi & Korsinsky LLP, Nicholas Ian Porritt -- nporritt@zlk.com -- Levi & Korsinsky, LLP, pro hac vice & Rosemary M. Rivas -- rrivas@zlk.com -- Levi & Korsinsky LLP. Arthur Joseph Higgins, James A. Schoeneck & August J. Moretti, Defendants, represented by Michael A. Mugmon -- MICHAEL.MUGMON@WILMERHALE.COM -- Wilmer Cutler Pickering Hale & Dorr LLP & Rebecca A. Girolamo -- BECKY.GIROLAMO@WILMERHALE.COM -- Wilmer Cutler Pickering Hall & Dorr LLP. Assertio Therapeutics, Inc., Defendant, represented by Michael A. Mugmon, Wilmer Cutler Pickering Hale & Dorr LLP, Jessica L. Lewis , Wilmer Cutler Pickering Hale & Dorr LLP, Michael G. Bongiorno, Wilmer Cutler Pickering Hale & Dorr LLP, pro hac vice & Rebecca A. Girolamo, Wilmer Cutler Pickering Hall & Dorr LLP. City of Pontiac General Employees' Retirement System, Movant, represented by Shawn A. Williams, Robbins Geller Rudman & Dowd LLP & Tricia Lynn McCormick, Robbins Geller Rudman & Dowd LLP. Brian Shrader, Movant, represented by Laurence Matthew Rosen, The Rosen Law Firm, P.A. John Lucas & Joe Bojues, Movants, represented by Robert Vincent Prongay, Glancy Prongay & Murray LLP & Lesley F. Portnoy, Glancy Prongay & Murray LLP. Thomas J. Bruch, Steven Robert Farrar, Dennis J. Seltzer & David Weinstein, Movants, represented by Jennifer Pafiti, Pomerantz LLP. Gerald Ross, Interested Party, represented by Benjamin Heikali, Faruqi and Faruqi LLP. AT&T SERVICES: Summary Judgment Bid in Gadelhak TCPA Suit Granted ----------------------------------------------------------------- In the case, ALI GADELHAK, on behalf of himself and all others similarly situated, Plaintiff, v. AT&T SERVICES, INC., Defendant, Case No. 17-cv-01559 (N.D. Ill.), Judge Edmond E. Cheng of the U.S. District Court for the Northern District of Illinois, Eastern Division, (i) AT&T's motion for summary judgment; and (ii) denief Gadelhak's motion for summary judgment. Gadelhak brought the proposed class action after he received automated text messages from Defendant AT&T, allegedly in violation of the Telephone Consumer Protection Act ("TCPA"). Gadelhak lives in Chicago, Illinois and is not a customer of AT&T or any AT&T affiliate. He registered his cell phone number with the Do Not Call list in May 2014. Nonetheless, in July 2016, Gadelhak received five text messages from AT&T asking survey questions in Spanish. AT&T insists that TARCRFT (AT&T Customer Rules Feedback Tool) is designed to send text messages only to AT&T customers, so Gadelhak's number must have been erroneously listed on an AT&T account. In February 2017, Gadelhak brought the proposed class action against AT&T for violations of the TCPA. He alleges that AT&T negligently, knowingly, and/or willfully contacted him via text message using an automated telephone dialing system ("ATDS") without his prior consent. He also alleges that AT&T did the same to others, on whose behalf Gadelhak brings class allegations. Both parties now move for summary judgment, content to litigate class certification (if Gadelhak were to prevail) after a decision on summary judgment. In its motion, AT&T asserts that it did not use an ATDS to send a text message to Gadelhak and thus did not violate the TCPA. For his part, Gadelhak asks the Court to declare as a matter of law that AT&T's TACRFT system employs an ATDS. Much of the parties' dispute boils down to whether the D.C. Circuit's opinion in ACA International v. FCC nullified previous FCC orders defining the term ATDS and, if so, what is the proper definition of that statutory term under the plain language of the TCPA. Judge Cheng finds that the 2008 Declaratory Ruling held the same, as it simply "affirmed" the interpretation of ATDS promulgated in the 2003 Order. With the Commission's repeated affirmations of the prior orders, this Court holds, as other courts in the District have, that ACA International invalidated the Commission's understanding of the term ATDS as articulated in the 2015 Declaratory Ruling, as well as the 2008 Declaratory Ruling and the 2003 Order. Because ACA International invalidated the Commission's prior orders defining the term ATDS -- and also declined to articulate their own definition of the term -- the Judge moves on to interpreting the TCPA unburdened by the Commission's definitions. AT&T argues that the statutory text dictates a "no" answer,while Gadelhak asserts that a device that "stores" telephone numbers to be called and automatically dials those numbers falls within the statutory definition. The Judge's interpretation does not actually render "store" superfluous. The word's presence in the provision ensures that systems that generate numbers randomly or sequentially, but then store the numbers for a period of time before dialing them later after a person has intervened to initiate the calls, are still covered by the statutory definition of ATDS. All in all, none of Gadelhak's arguments are persuasive; instead, the numbers stored by an ATDS must have been generated using a random or sequential number generator. Finally, Gadelhak concedes that the system employed by AT&T for its TACRFT program generates a list of telephone numbers to be called via automated computer processes. Based on this description, AT&T's system is not an ATDS as defined in the statute. Gadelhak makes the additional argument, though, that "AT&T's dialing system also uses a random number generator to produce telephone numbers to be called. The Judge finds that the organization of the provision does not support a reading where "using a random or sequential number generator" refers to the order numbers from a list are dialed. Otherwise, the provision would read to store or produce telephone numbers to be called; and to dial such numbers, using a random or sequential number generator. Based on the record evidence, there is no genuine dispute that AT&T's system cannot generate telephone numbers randomly or sequentially -- as those terms are used in the TCPA -- and thus it is not an ATDS and is not prohibited. For the reasons he discussed, Judge Cheng denied Gadelhak's motion for partial summary judgment, and granted AT&T's motion for summary judgment. The final judgment will be entered. The status hearing of April 4, 2019 is vacated. A full-text copy of the Court's March 29, 2019 Memorandum Opinion and Order is available at https://is.gd/TgGCB0 from Leagle.com. Ali Gadelhak, on behalf of himself and all others similarly situated, Plaintiff, represented by Michael S. Hilicki, Keogh Law, LTD, Timothy J. Sostrin, Keogh Law, LTD. & Keith James Keogh, Keogh Law, Ltd. AT&T Services, Inc., Defendant, represented by Hans J. Germann -- hgermann@mayerbrown.com -- Mayer Brown LLP. AVON PRODUCTS: Faces Class Actions Amid Natura Acquisition Talks ---------------------------------------------------------------- Jeremy Bowman, writing for The Motley Fool, reports that Avon Products as hit with multiple class action lawsuits. This news comes on the heels of the company's announcement that it was in talks to potentially be acquired by Brazil's Natura. So what Several law firms are alleging that Avon may have committed securities fraud by failing to disclose that it significantly loosened credit terms in Brazil, its largest market, in order to recruit new representatives, and that it failed to account for the new credit terms by increasing its allowance for doubtful accounts. These firms concluded that that move led to the stock being artificially inflated during the period in question in 2017. Separately, Avon confirmed on March 22 that the company has had preliminary discussions with Natura on a "potential transaction," which was understood to be a takeover by Natura. Avon stock had risen 18% since that news broke, but gave up much of those gains on March 27, though it's unclear if that was due to the lawsuits or just a sign that investors thought the stock was overbought, especially as shares have nearly doubled this year on hopes for a turnaround. Now what Class action lawsuits like these ones against Avon are fairly common, so they aren't necessarily cause for alarm. However, the news seems important in that it could have an effect on Natura's potential acquisition. This is the second time that Natura has approached Avon, following discussions last September, so talks may not lead to a deal. However, investors are clearly hoping for an exit from Avon stock's long descent, so keep an eye out for reports on advancing talks. [GN] BANK OF AMERICA: Baltimore Sues Over Bond Interest Rates -------------------------------------------------------- Colin Campbell, writing for The Baltimore Sun, reports that Baltimore is suing 10 major banks, alleging they illegally inflated interest rates for particular bonds for public works -- overcharging Baltimore and other municipalities by billions of dollars. The city is seeking class-action status for the federal antitrust lawsuit, saying the banks inflated costs for the city and other local governments, which Baltimore seeks to represent. That takes money away that could be spent on schools, police, roads, sewer lines and the like. The lawsuit, filed in the Southern District of New York, alleges that Bank of America, Barclays Bank, BMO Financial Group, Citibank, Fifth Third Bank, Goldman Sachs, JP Morgan Chase, Morgan Stanley, Royal Bank of Canada and Wells Fargo Bank colluded to fix interest rates of the tax-exempt bonds, known as variable rate demand obligations (or VRDOs), from 2007 until 2016. Baltimore, which has issued more than $260 million of the bonds, said the banks "conspired in a coordinated and confidential scheme" from at least August 2007 to June 2016 to collect billions in unearned fees from the city and others on the bonds, which are used to pay for major, long-term city infrastructure projects. "While Defendants enjoyed the benefits of their rate-fixing scheme, Plaintiff and similarly situated VRDO issuers suffered to the tune of billions of dollars in overcharges during the Class Period by paying inflated, collusively set interest rates," the complaint says. "Defendants' scheme inevitably reduced the funds available for public works, services, and organizations." Bank of America, Goldman Sachs, JP Morgan, Citibank and RBC declined to comment on March 26; spokespeople for the five other banks did not respond to requests for comment. Baltimore is joining a growing group of municipalities and states suing over how banks handle variable rate demand obligations. Philadelphia sued a group of banks in February with much the same arguments and also seeking class-action status, according to a Reuters report. The state of New York, as well as California, Illinois and Massachusetts, all have sued banks, too, according to a report in The Bond Buyer trade publication. VRDOs are long-term municipal bonds that allow cities, counties, states and other issuers to borrow large amounts of money at lower, short-term rates because they feature a "put" or "tender" option that allows investors to sell the bond back at face value, plus accrued interest. Because of this feature, cities often pay expensive fees to remarketing agents -- such as the banks being sued -- to set the interest rates and re-sell or purchase any tendered bonds. The remarketing agents are required to set the rates at the lowest possible market rate. The interest rates generally are reset weekly. If Judge Jesse M. Furman allows Baltimore's class action suit to move forward or merges it with another suit, it could become a massive case. As of November 2013, there were approximately 9,000 VRDOs outstanding in the United States with a collective balance of roughly $223 billion, the lawsuit said. Bank of America, JPMorgan and Wells Fargo alone accounted for approximately 40 percent of the VRDO market in 2011, 2012 and 2013. Baltimore's complaint cites a whistleblower analysis that showed interest rates were "grouped together in ‘buckets' in a manner that would be statistically impossible had the banks actually priced VRDO interest rates individually." It also noted a report that the Department of Justice has opened a criminal investigation of VRDO remarketing practices. Maintaining artificially high interest rates discouraged investors from exercising their "put" option, meaning the banks did not have to buy the bonds back and re-sell them, while simultaneously allowing them to charge higher fees for those services, the complaint claimed. The city is represented by outside counsel, Susman Godfrey LLP. [GN] BANK OF HAWAII: Suit Related to Overdraft Fees Ongoing ------------------------------------------------------ Bank of Hawaii said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 22, 2019, for the quarterly period ended March 31, 2019, that the company continues to defend a purported class action suit initiated by a customer in relation to the company's practice of determining whether consumer deposit accounts were overdrawn based on available balance. On September 9, 2016, a purported class action lawsuit was filed by a Bank customer primarily alleging Bank of Hawaii's practice of determining whether consumer deposit accounts were overdrawn based on "available balance" (which deducts debit card transactions that have taken place but which have not yet been posted) was not properly applied or disclosed to customers. This lawsuit is similar to lawsuits filed against other financial institutions pertaining to available balance overdraft fee disclosures. Management disputes any wrongdoing and the case is being vigorously defended. Because of the many questions of fact and law that may arise in the future, the outcome of this legal proceeding is uncertain. Bank of Hawaii, a chartered bank, provides banking products and services to customers in Hawaii. The company offers personal banking products, such as checking and savings accounts, special packages, loans and lines, mortgages, credit and debit cards, online and mobile banking services, individual retirement accounts, and other services. The company was founded in 1897 and is based in Honolulu, Hawaii. It has branches in the Hawaiian Islands; Guam, Saipan, and Palau; and American Samoa. Bank of Hawaii operates as a subsidiary of Bank of Hawaii Corporation. BANNER HEALTH: Bid to Exclude Kmak Testimony in Ramos Partly Okayed ------------------------------------------------------------------- In the case, LORRAINE M. RAMOS, et al., Plaintiffs, v. BANNER HEALTH, et al., Defendants, Civil Action No. 15-cv-2556-WJM-NRN (D. Colo.), Judge William J. Martinez of the U.S. District Court for the District of Colorado granted in part and denied in part the Plaintiffs' Motion to Exclude and Strike the Testimony of Thomas R. Kmak. The case arises out of alleged mismanagement of Defendant Banner Health's employee 401(k) plan. Plaintiffs Ramos and the others bring the class action against Banner Health, as well as current and former Banner Health employees, alleging, among other claims, that Banner Defendants breached their fiduciary duties under the Employee Retirement Income Security Act of 1974 by causing the Plan to pay excessive recordkeeping fees. On March 26, 2018, Banner Defendants submitted a rebuttal report by Kmak to provide opinions related to the reasonableness of the administrative and recordkeeping fees paid by the Plan and to examine certain opinions of the Plaintiffs' expert, Martin A. Schmidt. To assess the reasonableness of the Plan's recordkeeping fees, Kmak first applied Fiduciary Benchmarks Insights, LLC's benchmarking methodology to build a mathematically derived benchmark group for Banner Health. Based on a group of benchmark plans for each year from 2009-2017, Kmak calculated the 25th and 50th percentile fees of the benchmark group and compared the Plan's fees to those markers. Currently before the Court is the Plaintiffs' Motion. At base, the dispute over the admissibility of Kmak's testimony turns on the alleged failure of Banner Defendants to disclose and provide the underlying data on which Kmak's expert opinion relies. The Plaintiffs seek to exclude Kmak's report for failure to identify and produce certain materials on which he relied. They also contend that Kmak's report is "untestable, unverifiable, unreliable, and inadmissible" because Kmak failed "to disclose the data and formulas underlying his benchmark calculations." JUdge Martinez holds he need only address the Plaintiffs' first argument. Based on the statements of the parties, Kmak's rebuttal report, and Kmak's deposition, he finds that Banner Defendants have not disclosed or provided all of the materials upon which Kmak relied in his report. Nor has Kmak provided the relevant information from which Plaintiffs may evaluate the benchmark groups employed by Kmak as a comparison for Banner Health's Plan fees. Given this state of affairs, the Judge must consider the appropriate course under Rule 37(c). He finds that there was some prejudice to the Plaintiffs because they were unable to evaluate whether the benchmark group contained the appropriate comparators. However, the report and subsequent deposition provided substantial data on how Kmak arrived at his opinions based on the benchmark group, and some information about how he developed the benchmark group. The Plaintiffs contend that there is not sufficient time for the Plaintiffs to analyze the data, depose Kmak regarding it, or revise their rebuttal reports. Given that no trial date has yet been set, the Judge finds that striking Kmak's testimony would result in an injustice to the Banner Defendants, who would be left without a retained expert's testimony on the reasonableness of the Plan's fees. He finds that the schedule set forth will allow the parties sufficient time to cure the harm caused by Kmak's inadequate disclosures. Moreover, he will take the reopened expert discovery period into account when setting the trial date in the future. Finally, the Judge finds that there is not sufficient evidence to support a conclusion that Banner Health acted in bad faith. Banner Defendants reasonably, if wrongly, believed that they were under no obligation to disclose additional information, facts, or data. He thus concludes that, given the opportunity to cure, Banner Defendants' violation of Rule 26 was harmless. Accordingly, he will reopen expert discovery, allow the Plaintiffs to depose Kmak for an additional 4 hours, and order Banner Defendants to disclose supplemental rebuttal expert disclosures from Kmak and to produce the following documents: a. The electronic Fidelity Service Data, which was provided to Kmak and identified by Kmak as recordkeeping service data provided by Fidelity, in the form provided to Kmak or a substantially similar form readable and accessible by the Plaintiffs; b. The Plans, Companies, and Recordkeepers in each benchmark group from 2009-2017 used by Kmak as a comparison point for the Plan's fees; c. The names of the companies and recordkeepers previously anonymized in Kmak's report at ECF No. 321-3 at 232-34; and d. Any additional documents relied on by Kmak not already in possession of the Plaintiffs. Because he reopens expert discovery for the limited purpose described, the Judge finds it premature to determine whether Kmak's "undisclosed methodology and data makes opinions untestable, unverifiable, unreliable, and inadmissible." He therefore denies the remainder of the Plaintiffs' Motion without prejudice to refiling after the reopened discovery period closes. For the reasons set forth, Judge Martinez granted the Plaintiffs' Motion to the extent that he finds that Kmak's disclosures fell short of the Rule 26(a) standard, and denied as to the remainder of the Motion. The Court sua sponte reopens expert discovery for the following limited purposes: a. The Banner Defendants will disclose supplemental rebuttal expert disclosures from Kmak on April 30, 2019 which address how he created the benchmark groups from 2009-2017. Consistent with Rule 26(a)(2), Kmak will disclose all facts and data he considered in forming his supplemental expert report; b. In addition, the Banner Defendants must produce to the Plaintiffs the following documents or information by April 30, 2019: i. The electronic Fidelity Service Data, which was provided to Kmak and identified by Kmak as recordkeeping service data provided by Fidelity, in the form provided to Kmak or a substantially similar form readable and accessible by the Plaintiffs; ii. The Plans, Companies, and Recordkeepers in each benchmark group from 2009-2017 used by Kmak as a comparison point for the Plan's fees; and iii. The names of the companies and recordkeepers previously anonymized in Kmak's report; and iv. Any additional documents relied on by Kmak not already in possession of the Plaintiffs. The Plaintiffs may reopen Kmak's deposition and depose Kmak for an additional 4 hours on or before May 21, 2019. To the extent that they have already provided a rebuttal report to Kmak, the Plaintiffs may revise that rebuttal report and provide it to the Banner Defendants by June 10, 2019. A full-text copy of the Court's March 29, 2019 Order is available at https://is.gd/5t8B95 from Leagle.com. Lorraine M. Ramos, Constance R. Williamson, Karen F. McLeod, Robert Moffitt, Cherlene M. Goodale, Linda Ann Heyrman & Delri Hanson, individually and as reprentatives of a class of plan participants, on behalf of the Banner Health Employees 401 (k) Plan, Plaintiffs, represented by Aaron Elliott Schwartz -- aschwartz@uselaws.com. -- Schlichter Bogard and Denton, LLP, Heather Lea, Schlichter Bogard and Denton, LLP, James Redd, Schlichter Bogard and Denton, LLP, Kurt Charles Struckhoff, Schlichter Bogard and Denton, LLP, Michael Armin Wolff, Schlichter Bogard and Denton, LLP, Troy Andrew Doles, Schlichter Bogard and Denton, LLP, & Jerome Joseph Schlichter -- jschlichter@uselaws.com -- Schlichter Bogard and Denton, LLP. Banner Health, Banner Health Board of Directors, Laren Bates, Wilford A. Cardon, Ronald J. Creasman, Gilbert Davila, Peter S. Fine, Susan B. Foote, Michael J. Frick, Michael Garnreiter, Barry A. Hendin, David Kikumoto, Larry S. Lazarus, Steven W. Lynn, Anne Mariucci, Quentin P. Smith, Jr., Christopher Volk, Cheryl Wenzinger, Banner Health Retirement Plans Advisory Committee, Brenda Schaefer, Charles P. Lehn, Colleen Hallberg, Dan Weinman, Dennis Dahlen, Ed Niemann, Jr., Ed Oxford, Jeff Buehrle, Jennifer Sherwood, Julie Nunley, Margaret Dehaan, Patricia K. Block, Paulette Friday, Richard O. Sutton, Robert Lund & Thomas R. Koelbl, Defendants, represented by Richard Jason Pearl -- richard.pearl@dbr.com -- Drinker, Biddle & Reath, LLP & Theodore M. Becker -- theodore.becker@dbr.com -- Drinker, Biddle & Reath, LLP. Jeffrey Slocum & Associates, Inc., Defendant, represented by Christopher Joseph Boran -- christopher.boran@morganlewis.com -- Morgan Lewis & Bockius, LLP, Emily Taylor Jastromb -- emily.jastromb@morganlewis.com -- Morgan Lewis & Bockius, LLP, Hillary E. August -- hillary.august@morganlewis.com -- Morgan Lewis & Bockius, LLP, James P. Looby -- james.looby@morganlewis.com -- Morgan Lewis & Bockius, LLP, Jeremy P. Blumenfeld -- jeremy.blumenfeld@morganlewis.com -- Morgan Lewis & Bockius, LLP & Sari M. Alamuddin -- sari.alamuddin@morganlewis.com -- Morgan Lewis & Bockius, LLP. BIMBO FOODS: Conditional Certification of Franze Class Partly OK'd ------------------------------------------------------------------ In the case, NICHOLAS FRANZE & GEORGE SCHRUFER, JR. on behalf of themselves and all other employees similarly situated, Plaintiffs, v. BIMBO FOODS BAKERIES DISTRIBUTION, LLC, FIK/ABIMBO FOODS BAKERIES DISTRIBUTION, INC., F/K/A GEORGE WESTON BAKERIES DISTRIBUTION, INC., Defendants, Case No. 7:17-cv-03556 (NSR) (JCM) (S.D. N.Y.), Judge Nelson S. Roman of the U.S. District Court for the Southern District of New York granted in part and denied in part the Plaintiffs' motion for conditional certification and judicial notice under the Fair Labor Standards Act ("FLSA"). Plaintiffs Franze and Schrufer bring the action, initiated on May 12, 2017, against the Defendants, alleging violations of the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL"). They bring the proposed collective and class action alleging that the Defendants misclassified the Plaintiffs and the Distributors as independent contractors, exempt from the FLSA, in order to avoid paying them overtime in violation of the FLSA and NYLL. On March 12, 2018, the Plaintiffs filed a motion for conditional certification and judicial notice under the FLSA. They seek to conditionally certify a collective action on behalf of similarly situated distributors for the Defendants and requests the Court to authorize notice to be sent to potential class members. On June 22, 2018, the Plaintiffs served a motion to dismiss the Defendants' counterclaims against them and, on March 15, 2019, the Court issued an Opinion denying the Plaintiffs' motion. The Court found that granting the Plaintiffs' motion to dismiss the Defendants' counterclaim for unjust enrichment would have been premature. The Defendants filed a motion for summary judgment on Nov. 13, 2018, and that motion remains pending before the Court. Judge Roman finds that the Plaintiffs have presented sufficient evidence to make a modest factual showing that they and the Distributors are victims to a common policy to mischaracterize Distributors as independent contractors to deprive them of overtime compensation in violation of the FLSA and that the Distributors and the Plaintiffs are sufficiently similarly situated to proceed for the purposes of conditional class certification. He holds that the Plaintiffs have met their low burden. The Judge accepts the Plaintiffs' proposed notice as modified to include a three-year notice period and authorizes the notice to be posted at the Newburgh, New York and New Paltz, New York facilities4 and sent by mail to all individuals who worked as distributors or independent contractor route drivers for the Defendants in New York during the three years prior to the date of the filing of the action. He further authorizes the Plaintiffs to send one reminder notice by mail. Within 30 days, the Defendants will produce the names and last known mailing addresses of all individuals who worked as distributors or independent contractor route drivers for the Defendants in New York during the three years prior to the date of the initiation of the action. The Defendants state that the Court is empowered to impose sanctions on the Plaintiffs pursuant to 28 U.S.C. Section 1927 or, alternatively, Federal Rules of Civil Procedure Rule 11(b). They allege that the Plaintiffs declarations are "replete with misrepresentations" and that they simply reused declarations from another proceeding. The decision of whether or not to impose sanctions under Rule 11 and Section 1927 is committed to the discretion of the district court. The Judge determines that it is too early to determine whether sanctions are warranted and declines to impose sanctions at this time. For the foregoing reasons, Judge Roman granted in part and denied in part the Plaintiffs' motion. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 37. A full-text copy of the Court's March 29, 2019 Opinion and Order is available at https://is.gd/063wYO from Leagle.com. Nicholas Franze, on behalf of themselves, and of all similarly situated individuals & George Schrufer, Jr., on behalf of themselves, and of all similarly situated individuals, Plaintiffs, represented by Gary Steven Graifman -- email@kgglaw.com -- Kantrowitz Goldhamer & Graifman, P.C., Orin Robert Kurtz -- okurtz@gardylaw.com -- Gardy & Notis, LLP, Reginald H. Rutishauser , Kantrowitz Goldhamer & Graifman, P.C. & Randy J. Perlmutter -- rperlmutter@kgglaw.com -- Kantrowitz Goldhamer & Graifman, P.C. Bimbo Foods Bakeries Distribution, LLC, formerly known as Bimbo Foods Bakeries Distribution Inc. formerly known as George Weston Bakeries Distribution, Inc., Defendant, represented by Michael Jonathan Puma -- michael.puma@morganlewis.com -- Morgan, Lewis and Bockius LLP & Melissa C. Rodriguez -- melissa.rodriguez@morganlewis.com -- Morgan, Lewis & Bockius LLP. Bimbo Bakeries USA, Inc., Defendant, represented by Melissa C. Rodriguez, Morgan, Lewis & Bockius LLP. Bimbo Bakeries USA, Inc., Counter Claimant, represented by Melissa C. Rodriguez, Morgan, Lewis & Bockius LLP. Nicholas Franze, on behalf of themselves, and of all similarly situated individuals & George Schrufer, Jr., on behalf of themselves, and of all similarly situated individuals, Counter Defendants, represented by Gary Steven Graifman, Kantrowitz Goldhamer & Graifman, P.C., Orin Robert Kurtz, Gardy & Notis, LLP, Reginald H. Rutishauser, Kantrowitz Goldhamer & Graifman, P.C. & Randy J. Perlmutter, Kantrowitz Goldhamer & Graifman, P.C. Bimbo Foods Bakeries Distribution, LLC, Counter Claimant, represented by Michael Jonathan Puma, Morgan, Lewis and Bockius LLP & Melissa C. Rodriguez, Morgan, Lewis & Bockius LLP. BISCOMERICA CORP: Court Dismisses Backus Without Leave to Amend --------------------------------------------------------------- In the case, TROY BACKUS, Plaintiff, v. BISCOMERICA CORPORATION, Defendant, Case No. 16-cv-03916-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the Northern District of California granted Biscomerica's motion to dismiss the amended complaint without leave to amend. Backus brought the putative class action against the Defendant, claiming that it violated California's Unfair Competition Law ("UCL") by selling packaged cookies that contained partially hydrogenated oil ("PHO"). Biscomerica manufactures, distributes, and sells a variety of packaged cookies that contain PHO, an artificial trans fat, a toxic carcinogen for which there are many safe and commercially viable substitutes. Backus "repeatedly purchased and consumed" Biscomerica cookies containing PHO for personal and household consumption. Until late 2015, he bought these cookies approximately once a month from various California stores. He was injured because he lost money because he purchased products that were detrimental to his health and were unfairly offered for sale in violation of federal and California law, and because he suffered physical injury when he repeatedly consumed the cookies. He was "unaware" that the cookies were "dangerous" because he is a busy person and cannot reasonably inspect every ingredient of every food that he purchases for himself and others. Backus brought his initial complaint in the Court on July 12, 2016, asserting causes of action under state law, including: (1) California's UCL; (2) nuisance; and (3) the implied warranty of merchantability. He asserted his claims on behalf of himself and a nationwide class of people who had purchased Biscomerica cookies on or after Jan. 1, 2008. On March 27, 2017, the Court granted Biscomerica's motion to dismiss. First, the Court held that Backus' claim that the use of PHO was unlawful under the UCL failed because his interpretation of California's Sherman Food, Drug, and Cosmetic Law was preempted by Section 754. Second, the Court held that use of PHO was not unfair under the UCL because it was similarly preempted. Finally, it rejected Backus' nuisance and implied warranty of merchantability claims. The Court granted Backus leave to amend his complaint but noted that his entire theory as to each cause of action currently pled is deficient as a matter of law. Backus filed an amended complaint on April 17, 2017, asserting two UCL-based causes of action. First, Backus claimed that Biscomerica's use of PHO was unlawful under the UCL because the products were adulterated, thus violating the FDCA and the Sherman Law. Second, Backus claimed that Biscomerica's use of PHO was unfair under the UCL. He purported to bring his claim on behalf of himself and a nationwide class of people who had purchased Biscomerica cookies containing partially hydrogenated oil between Jan. 1, 2008 and June 16, 2015. Biscomerica filed a motion to dismiss the amended complaint on May 5, 2017. Backus opposed on May 19, and Biscomerica replied on June 1. On June 22, 2017, the Court stayed the action, over Biscomerica's opposition, until two cases asserting similar claims were resolved by the Ninth Circuit. In the first of those cases, Hawkins v. AdvancePierre Foods, Inc., the Ninth Circuit assumed, without deciding, that the plaintiff's PHO claims were not preempted by federal law, but the court held that the plaintiff had nonetheless failed to state a claim for violation of the UCL or for breach of the implied warranty of merchantability. In the second case, Hawkins v. Kroger Co., the Ninth Circuit declined to reach the preemption issue. With the two cases decided, the Court lifted the stay on Oct. 24, 2018 and ordered the parties to submit supplemental briefs addressing the impact of the two Hawkins cases. Both Backus and Biscomerica filed supplemental briefs on November 8. Judge Gilliam concludes that Backus' allegations in his amended complaint -- which, other than the end date of the class period are the same as those in his original complaint -- are deficient as a matter of law. Because the Court has already granted Backus leave to amend once before, and any further amendment would be futile, he granted the motion to dismiss without leave to amend. The Clerk is directed to close the case and enter judgment in favor of the Defendant. A full-text copy of the Court's March 29, 2019 Order is available at https://is.gd/8Dp8Uf from Leagle.com. Troy Backus, on behalf of himself and all others similarly situated, Plaintiff, represented by Andrew Christopher Hamilton -- andrew@westonfirm.com -- The Weston Firm, David Elliot -- davidelliot@elliotlawfirm.com -- Law Offices of David Elliot & Gregory Weston -- greg@westonfirm.com. Biscomerica Corporation, Defendant, represented by Brendan William Brandt -- brendan.brandt@varnerbrandt.com -- Angelica Acosta Samaniego -- angelica.samaniego@varnerbrandt.com -- Varner and Brandt LLP. BITMAIN: Investors Plan to File Class Action in Hong Kong --------------------------------------------------------- Ana Alexandre, writing for Coin Telegraph, reports that a critic of cryptocurrency mining giant Bitmain, BTCKING555, said that a group investors are preparing a class action lawsuit against the company in a tweet on March 26. BTCKING555 said in the post that a number of Bitmain's investors are going to file a class action lawsuit against the company in Hong Kong, seeking to recover their investments after the expiration of Bitmain's initial public offering (IPO) bid. The post reads: ". . . already in august I warned many investors and prevented them from investing. Those that did not listen, good luck recovering your moneys. I hear there is class action in works in Hong Kong." BTCKING555 also claims that last summer, Bitmain rose $700 million and saved the company from bankruptcy. Investors, in their turn, reportedly anticipated that the value of their shares would increase significantly, although that has not yet happened: "Noone will go nowhere near Bitmain for funding and expect litigation for investors try to recover their moneys. If not for the summer $700 mln fund-raise, Bitmain would be bankrupt now. Jihan and CFO lied on numbers and investors (Softbank, Tencent) to lock in capital." BTCKING555 remarks follow news that Bitmain's filing to list its IPO on the Hong Kong Stock Exchange (HKEx) reached the end of its six-month expiration window. According to HKEx listing rules, the filing reached the end of its validity window without confirmed reports of a Committee hearing, thus rendering the application obsolete. Bitmain first confirmed its IPO listing plans in the summer of 2018, when erstwhile Bitmain CEO Jihan Wu revealed that the firm was mulling an overseas IPO in a market with U.S. dollar-denominated shares, such as Hong Kong. Later in August, reports surfaced of Bitmain allegedly sealing a IPO financing deal, bringing its valuation to $15 billion. Both Chinese tech conglomerate Tencent and Japan's SoftBank were purportedly involved. In response to Cointelegraph's investigations at the time, Softbank subsequently denied its alleged involvement. Tencent eluded formal confirmation or denial, other purported investors soon likewise distanced themselves from rumored involvement. [GN] BRAVO RESTAURANT: Cortez Hits Missed Breaks, Claims Overtime Pay ---------------------------------------------------------------- Alejandro Cortez, on behalf of himself and all other persons similarly situated, known and unknown, Plaintiff, v. Bravo Restaurant Group, Inc., an Illinois corporation, John C. Bozonelos, John G. Bozonelos, James Pappas, Demetrios Petsas and George Rogiokos, in their individual capacities Defendants, Case No. 19-cv-01512 (N.D. Ill., March 1, 2019), seeks to recover overtime wages under the Fair Labor Standards Act and the Illinois Minimum Wage Law. Defendants own and operate a restaurant called "Basil's Greek Dining" located at 4000 Fox Valley Center Drive, Aurora, Illinois, where Cortez worked as a cook from 2009 until his termination on or about January 28, 2019. He claims to have worked though his rest periods and denied overtime pay. [BN] Plaintiff is represented by: Margherita M. Albarello, Esq. DI MONTE & LIZAK, LLC 216 W. Higgins Road Park Ridge, IL 60068 Tel: (847) 698-9600 Fax: (847) 698-9623 Email: malbarello@dimontelaw.com CANCER GENETICS: Bid to Dismiss Consolidated NJ Suit Underway ------------------------------------------------------------- Cancer Genetics, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 16, 2019, for the fiscal year ended December 31, 2018, that defendants are seeking dismissal of the consolidated class action suit in New Jersey entitled, In re Cancer Genetics, Inc. Securities Litigation. On April 5, 2018 and April 12, 2018, purported stockholders of the Company filed nearly identical putative class action lawsuits in the U.S. District Court for the District of New Jersey, against the Company, Panna L. Sharma, John A. Roberts, and Igor Gitelman, captioned Ben Phetteplace v. Cancer Genetics, Inc. et al., No. 2:18-cv-05612 and Ruo Fen Zhang v. Cancer Genetics, Inc. et al., No. 2:18-06353, respectively. The complaints alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 based on allegedly false and misleading statements and omissions regarding the company's business, operational, and financial results. The lawsuits sought, among other things, unspecified compensatory damages in connection with purchases of the company's stock between March 23, 2017 and April 2, 2018, as well as interest, attorneys' fees, and costs. On August 28, 2018, the Court consolidated the two actions in one action captioned In re Cancer Genetics, Inc. Securities Litigation (the "Securities Litigation") and appointed shareholder Randy Clark as the lead plaintiff. On October 30, 2018, the lead plaintiff filed an amended complaint, adding Edward Sitar as a defendant and seeking, among other things, compensatory damages in connection with purchases of CGI stock between March 10, 2016 and April 2, 2018. On December 31, 2018, Defendants filed a motion to dismiss the amended complaint for failure to state a claim. Cancer Genetics said, "The Company is unable to predict the ultimate outcome of the Securities Litigation and therefore cannot estimate possible losses or ranges of losses, if any." Cancer Genetics, Inc. develops, commercializes, and provides molecular and biomarker-based tests and services in the United States, Europe, and Asia. Cancer Genetics, Inc. was founded in 1999 and is based in Rutherford, New Jersey. CAPTAIN GEORGE'S: Smith et al. Suit Moved to E.D. Virginia ---------------------------------------------------------- The case, Desera Smith and Kayla Gudinas, On behalf of themselves and those similarly situated, the Plaintiff, vs. Captain George's of South Carolina, LP; Captain George's of South Carolina, Inc.; Captain KDH, LLC; Lideslambous, Inc.; Pitsilambous, Inc.; Pitsilides Management, LLC; George Pitsilides; Sherry Pitsilides; and Doe Corporations 1-4, the Defendants, Case No. 4:18-cv-02409 (Filed Aug. 30, 2018), was removed from the U.S. District Court for the District of South Carolina, to the U.S. District Court for the Eastern District of Virginia (Norfolk) on March 29, 2019. The Eastern District of Virginia Court Clerk assigned Case No. 2:19-cv-00153-HCM-DEM to the proceeding. The case is assigned to the hon. District Judge Henry C. Morgan, Jr. The Plaintiffs seek appropriate monetary, declaratory and equitable relief based on Defendants' willful failure to compensate the Plaintiffs and similarly situated individuals with minimum and overtime wages pursuant to the Fair Labor Standards Act.[BN] Attorneys for the Plaintiffs: Patrick James McLaughlin, Esq. WUKELA LAW FIRM PO Box 13057 Florence, SC 29504 Telephone: (843) 669-5634 Facsimile: (843) 669-5150 E-mail: patrick@wukelalaw.com Attorneys for the Defendants: Leah B Moody, Esq. LEAH B MOODY LAW OFFICE PO Box 1015 Rock Hill, SC 29731 Telephone: (803) 327-4192 Facsimile: (803) 329-1344 E-mail: lbmatty@comporium.net CARMAX INC: Rowland Class Action Dismissed ------------------------------------------ CarMax, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 19, 2019, for the fiscal year ended February 28, 2019, that the court has dismissed the class action suit entitled, James Rowland v. CarMax Auto Superstores California, LLC, and CarMax Auto Superstores West Coast, Inc. On September 7, 2016, James Rowland v. CarMax Auto Superstores California, LLC, and CarMax Auto Superstores West Coast, Inc., a putative class action asserting wage and hour claims, was filed in the U.S. District Court, Eastern District of California, Sacramento Division. On April 11, 2019, the court dismissed the Rowland lawsuit, including the class claims, and compelled arbitration of the plaintiff's claims on an individualized basis. CarMax, Inc., through its subsidiaries, operates as a retailer of used vehicles in the United States. The company operates in two segments, CarMax Sales Operations and CarMax Auto Finance. CarMax, Inc. was founded in 1993 and is based in Richmond, Virginia. CARMAX INC: Wage & Hour Class Suits in Calif. Still Ongoing ----------------------------------------------------------- CarMax, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 19, 2019, for the fiscal year ended February 28, 2019, that the company continues to defend wage-and-hour class action lawsuits in California. CarMax entities are defendants in four proceedings asserting wage and hour claims with respect to CarMax sales consultants and non-exempt employees in California. The asserted claims include failure to pay minimum wage, provide meal periods and rest breaks, pay statutory/contractual wages, reimburse for work-related expenses and provide accurate itemized wage statements; unfair competition; and Private Attorney General Act claims. CarMax entities were defendants in a fifth proceeding asserting these claims, which was dismissed after the completion of fiscal 2019. On September 4, 2015, Craig Weiss et al., v. CarMax Auto Superstores California, LLC, and CarMax Auto Superstores West Coast, Inc., a putative class action, was filed in the Superior Court of California, County of Placer. The Weiss lawsuit seeks civil penalties, fines, cost of suit, and the recovery of attorneys' fees. On June 29, 2016, Ryan Gomez et al. v. CarMax Auto Superstores California, LLC, and CarMax Auto Superstores West Coast, Inc., a putative class action, was filed in the Superior Court of the State of California, Los Angeles. The Gomez lawsuit seeks declaratory relief, unspecified damages, restitution, statutory penalties, interest, cost and attorneys' fees. On October 31, 2017, Joshua Sabanovich v. CarMax Superstores California, LLC et. al., a putative class action, was filed in the Superior Court of California, County of Stanislaus. The Sabanovich lawsuit seeks unspecified damages, restitution, statutory penalties, interest, cost and attorneys' fees. On November 21, 2018, Derek Mcelhannon et al v. CarMax Auto Superstores California, LLC and CarMax Auto Superstores West Coast, Inc., a putative class action, was filed in Superior Court of California, County of Alameda. On February 1, 2019, the Mcelhannon lawsuit was removed to the U.S District Court, Northern District of California, San Francisco Division. The Mcelhannon lawsuit seeks unspecified damages, restitution, statutory and/or civil penalties, interest, cost and attorneys' fees. CarMax said, "We are unable to make a reasonable estimate of the amount or range of loss that could result from an unfavorable outcome in the above matters." CarMax, Inc., through its subsidiaries, operates as a retailer of used vehicles in the United States. The company operates in two segments, CarMax Sales Operations and CarMax Auto Finance. CarMax, Inc. was founded in 1993 and is based in Richmond, Virginia. CAS MEDICAL: Rigrodsky & Long Files Securities Class Action ----------------------------------------------------------- Rigrodsky & Long, P.A. on March 27 disclosed that it has filed a class action complaint in the United States District Court for the District of Delaware on behalf of holders of CAS Medical Systems, Inc. ("CAS Medical") (NasdaqCM: CASM) common stock in connection with the proposed acquisition of CAS Medical by Edwards Lifesciences Corporation and its affiliates ("Edwards") announced on February 12, 2019 (the "Complaint"). The Complaint, which alleges violations of the Securities Exchange Act of 1934 against CAS Medical and its Board of Directors (the "Board"), is captioned Franchi v. CAS Medical Systems, Inc., Case No. 1:19-cv-00478 (D. Del.). If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Seth D. Rigrodsky or Gina M. Serra at Rigrodsky & Long, P.A., 300 Delaware Avenue, Suite 1220, Wilmington, DE 19801, by telephone at (888) 969-4242, by e-mail at info@rl-legal.com, or at http://rigrodskylong.com/contact-us/. On February 11, 2019, CAS Medical entered into an agreement and plan of merger (the "Merger Agreement") with Edwards. Pursuant to the terms of the Merger Agreement, shareholders of CAS Medical will receive $2.45 in cash for each share of CAS Medical they own (the "Proposed Transaction"). Among other things, the Complaint alleges that, in an attempt to secure shareholder support for the Proposed Transaction, defendants issued materially incomplete disclosures in a proxy statement (the "Proxy Statement") filed with the United States Securities and Exchange Commission. The Complaint alleges that the Proxy Statement omits material information with respect to, among other things, CAS Medical's financial projections and the analyses performed by CAS Medical's financial advisor. The Complaint seeks injunctive and equitable relief and damages on behalf of holders of CAS Medical common stock. If you wish to serve as lead plaintiff, you must move the Court no later than May 27, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Any member of the proposed class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. With offices in Delaware, New York, and California, Rigrodsky & Long, P.A. -- http://www.rigrodskylong.com-- has recovered hundreds of millions of dollars on behalf of investors and achieved substantial corporate governance reforms in numerous cases nationwide, including federal securities fraud actions, shareholder class actions, and shareholder derivative actions. [GN] CBL PROPERTIES: Sets Aside $90MM for Class Action Settlement ------------------------------------------------------------ Chattanooga Times Free Press reports that Chattanooga-based CBL Properties said on March 26 it would suspend payment of its dividend for two quarters and set aside $90 million in connection with the proposed settlement of a class action suit. The suit, filed three years ago in Florida against the shopping center owner and operator, claimed that CBL and affiliated entities overcharged tenants at bulk metered malls for electricity. CBL, which holds 67 malls nationwide including Hamilton Place and Northgate malls in Chattanooga, denied the allegations of wrongdoing and continued to do so on March 26 even with the announcement of the settlement. "We deny all allegations of wrongdoing and conduct our business with the utmost integrity," the company said in a statement. "However, given the class certification, denial of our petition to appeal, an accelerated trial schedule, and the potential cost of an adverse outcome or prolonged litigation, we believe that the proposed settlement is in the best interest of the company and its shareholders." A trial date had been set for April 2 in Fort Myers, Florida, in federal court. CBL shares fell in after-hours trading following the announcement that it had approved the structure of the settlement. A couple of hours after the company's announcement, CBL's stock had fallen by 12 percent to $1.68 per share in after-hours trading. The suspension of the dividend for two quarters will preserve about $26 million in cash at the current quarterly dividend rate, according to CBL. Based on the current projection of taxable income for 2019, which includes the impact of the settlement, the real estate investment trust believes it will satisfy all required distributions for the 2019 taxable year. The lawsuit filed by Hagens Berman and Buckner+Miles claimed CBL tenants had been victim to a "criminal enterprise" in which the company knowingly overcharged its mall tenants for electricity by up to 100 percent. The suit said CBL promised its small business tenants that their electricity charges would not exceed what it was charged by local public utilities for the electricity the tenants actually used. But, the suit said, CBL breached its own lease agreements and state law by inflating both the electricity rates charged and the amounts of electricity used by tenants. Attorney Thomas Loeser of Hagens Berman in Seattle said the settlement is "a fair and adequate resolution of the litigation." "We believe the settlement, if approved by the court, will fairly compensate the class members," he said. Under the terms of the proposed settlement, CBL is to set aside a common fund with a monetary and non-monetary value of $90 million to be disbursed to class members in accordance with a formula to be agreed upon by the parties that is based upon aggregate damages of $60 million. Class members will be comprised of past and current tenants at certain of it shopping centers that it owns or formerly owned during the class period which will extend from Jan. 1, 2011, through the date of court's preliminary approval. Class members who are past tenants and make a claim will receive payment of their claims in cash, according to CBL. Class members who are current tenants will receive monthly credits against rents and future charges over the next five years. Any amounts under the settlement allocated to tenants with outstanding amounts payable to the company, including tenants which have declared bankruptcy or declare bankruptcy over the relevant period, will first be deducted from the amounts owed to the company, CBL said. Attorney's fees and associated costs to be paid to class counsel, which is expected to total a maximum of $28 million, and class administration costs, expected to not exceed $150,000, will be funded by the common fund but must be approved by the court, according to the company. Under the terms of the proposed settlement, CBL will not pay dividends to holders of its common shares payable in the third and fourth quarters of 2019, CBL said. The settlement does not restrict its ability to declare dividends payable in 2020 or in subsequent years. CBL anticipates accruing in its financial statements for the first quarter of 2019 a reserve with related to the settlement of about $88.1 million. CBL said insurance does not cover the proposed settlement amounts. [GN] CHART INDUSTRIES: Stainless Steel Cryobiological Tank Suit Ongoing ------------------------------------------------------------------ Chart Industries, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 18, 2019, for the quarterly period ended March 31, 2019, that the company continues to defend itself from a class action suit involving its Stainless Steel Cryobiological Tank product. During the second quarter of 2018, Chart was named in lawsuits (including a class action lawsuit filed in the U.S. District Court for the Northern District of California) filed against Chart and other defendants with respect to the alleged failure of a stainless steel cryobiological storage tank (model MVE 808AF-GB) at the Pacific Fertility Center in San Francisco, California. The company is evaluating the merits of such claims in light of the limited information available to date regarding use, maintenance and operation of the tank which has been out of the company's custody for the past six years when it was sold to the Pacific Fertility Center through an independent distributor. Accordingly, an accrual related to any damages that may result from the lawsuits has not been recorded because a potential loss is not currently probable or estimable. Chart Industries said, "We have asserted various defenses against the claims in the lawsuits, including a defense that since manufacture, we were not in any way involved with the installation, ongoing maintenance or monitoring of the tank or related fertility center cryogenic systems at any time since the initial delivery of the tank." No further updates were provided in the Company's SEC report. Chart Industries, Inc. manufactures and sells engineered equipment and packaged solutions; and provides value-add services for the energy and industrial gas industries worldwide. It operates through three segments: Energy & Chemicals, Distribution & Storage Western Hemisphere, and Distribution & Storage Eastern Hemisphere segments. Chart Industries, Inc. was founded in 1992 and is headquartered in Ball Ground, Georgia. CHART INDUSTRIES: Suit over Aluminum Cryobiological Tank Underway ----------------------------------------------------------------- Chart Industries, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 18, 2019, for the quarterly period ended March 31, 2019, that the company continues to defend a purported class action lawsuit related to the alleged failure of its aluminum cryobiological storage tank product. Chart has been named in purported class action lawsuits filed in the Ontario Superior Court of Justice against the Company and other defendants with respect to the alleged failure of an aluminum cryobiological storage tank (model FNL XC 47/11-6 W/11) at The Toronto Institute for Reproductive Medicine in Etobicoke, Ontario. The company have confirmed that the tank in question was part of the aluminum cryobiological tank recall commenced on April 23, 2018. The company have asserted various defenses against the claims in the lawsuits and are in the early stages of litigation. Chart Industries aid, "Accordingly, an accrual related to any damages that may result from the lawsuit has not been recorded because a potential loss is not currently probable or estimable." No further updates were provided in the Company's SEC report. Chart Industries, Inc. manufactures and sells engineered equipment and packaged solutions; and provides value-add services for the energy and industrial gas industries worldwide. It operates through three segments: Energy & Chemicals, Distribution & Storage Western Hemisphere, and Distribution & Storage Eastern Hemisphere segments. Chart Industries, Inc. was founded in 1992 and is headquartered in Ball Ground, Georgia. CHASE BANK USA: Chen Credit Suit Removed to N.D. Cal. ----------------------------------------------------- The case captioned Jeffrey Chen, on behalf of himself, all others similarly situated, Plaintiff, v. Chase Bank USA, N.A., and Does 1 through 50, inclusive, Defendants, Case No. RG19004405 (Cal. Super., January 28, 2019), was removed to the United States District Court for the Northern District of California on February 27, 2019 under Case No. 19-cv-01082. Plaintiff seeks punitive damages, injunctive relief and attorney's fees and costs resulting from being denied application for a new credit card account with Chase due to previous unsatisfactory relationship with the bank under the Equal Credit Opportunity Act.[BN] Defendants are represented by: David M. Jolley, Esq. COVINGTON & BURLING LLP One Front Street, 35th Floor San Francisco, CA 94111-5356 Telephone: (415) 591-6000 Facsimile: (415) 591-6091 Email: djolley@cov.com CHEMICAL & MINING: Class Cert. Bid in S.D.N.Y. Suit Still Pending ----------------------------------------------------------------- Chemical and Mining Company of Chile Inc. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on April 18, 2019, for the fiscal year ended December 31, 2018, that the U.S. District Court for the Southern District of New York has yet to rule on a motion for class certification in a securities lawsuit. In 2015, the Chilean Internal Revenue Service (Servicio de Impuestos Internos or "SII") and the Chilean Public Prosecutor brought a number of criminal and administrative proceedings following investigations related to the payment of invoices by SQM and its subsidiaries SQM Salar S.A. ("SQM Salar") and SQM Industrial S.A., for services that may not have been properly supported or that may not have been necessary to generate corporate income, against (i) Patricio Contesse G., the Company's former CEO whose employment was terminated in May 2015, (ii) Mr. Contesse and the Company's then-current CEO, Patricio de Solminihac, as well as the then-current CFO (now CEO), Ricardo Ramos, in their capacities as the Company's tax representatives and (iii) five then-current and former members of the Company's Board of Directors. All the claims against Messrs. de Solminihac and Ramos were subsequently dismissed. The lawsuits against Mr. Contesse continue and the five Board members are appealing the fines of approximately US$36,000 imposed on each of them. Since October 2015, a consolidated class action lawsuit has been pending against the Company in the United States District Court for the Southern District of New York, alleging violations of the U.S. securities laws in connection with the subject matter of the investigations described above. The complaint alleges that certain statements made by the Company, principally in the Company's SEC filings and press releases, were materially false and/or misleading in violation of Section 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder. Specifically, the complaint challenges certain of the Company's statements concerning its compliance with applicable laws and regulations; the effectiveness of its internal controls; its adoption of a code of ethics consistent with SEC requirements; its revenues and taxes owed; and its compliance with applicable accounting standards. The complaint also alleges that the Company made inadequate disclosures concerning the status of the Corfo litigation. The lead plaintiff seeks damages of an undetermined amount to recover the economic losses allegedly suffered by the class as a result of the challenged statements. On March 30, 2016, the Company filed a motion to dismiss the complaint under the doctrine of forum non conveniens or, alternatively, pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim under Section 10(b) of the Exchange Act. Briefing on that motion to dismiss was completed on June 29, 2016. On March 28, 2017, the district court issued an opinion and order denying in part and granting in part the motion to dismiss. The district court denied the motion to dismiss under the doctrine of forum non conveniens; denied the motion to dismiss for failure to state a claim with respect to the statements concerning legal compliance, internal controls, and financial reporting and accounting; and granted the motion to dismiss for failure to state a claim with respect to the statements concerning the Company's code of ethics and the status of the Corfo litigation. On January 10, 2018, the lead plaintiff filed a motion to certify a class consisting of all persons who purchased SQM ADSs between June 30, 2010 and March 18, 2015, and such motion remains pending before the court. No further updates were provided in the Company's SEC report. Chemical and Mining Company of Chile Inc. is a Chilean chemical company and a supplier of plant nutrients, iodine, lithium and industrial chemicals. It is the world's biggest lithium producer. CHRISTOPHER'S GOLDEN WOK: Zhongmin Suit Seeks Unpaid Overtime Wages ------------------------------------------------------------------- Zhongmin Chen, on behalf of himself and others similarly situated Plaintiff, v. Christopher's Golden Wok, Inc. and Stephen Lu, Defendants, Case No. 19-cv-01246 (E.D. N.Y., March 1, 2019), seeks to recover unpaid minimum wage, unpaid overtime wage, unpaid spread of hours premium, liquidated damages prejudgment and post-judgment interest, attorneys' fees and costs under the Fair Labor Standards Act and New York Labor Laws. Christopher's Golden Wok operates as Golden Woks where Zhongmin was employed as a kitchen helper and delivery man at their restaurant located at 159 Christopher Street, New York, NY 10014. Plaintiff was not compensated overtime for all hours worked above forty in each workweek, asserts the complaint.[BN] Plaintiff is represented by: Keli Liu, Esq. HANG & ASSOCIATES, PLLC 136-20 38th Avenue, Suite 10G Flushing, NY, 11354 Tel: (718)353-8588 Email: kliu@hanglaw.com CHRYSLER: Judge Tosses Consumer Fraud Class Action Over Sludge -------------------------------------------------------------- Cook County Record reports that U. S District Judge Nancy Rosenstengel dismissed a class action complaint over Chrysler warranties on March 18, and questioned her jurisdiction over a remaining claim of consumer fraud. She set an April 15 deadline for plaintiffs Chris Hanusek and Jesse Swafford to set forth the basis for her jurisdiction. Hanusek and Swafford claim that in Jeep Wrangler models from 2012 to 2017, coolant reacts with aluminum to produce sludge in heating and cooling systems. They claim the defect puts them at risk in extreme heat and cold. Greg Coleman of Knoxville, Tenn. filed the suit last February in association with Eric Johnson of John Simmons's firm in Alton. The complaint alleged breach of express and implied warranties, violation of the Magnuson-Moss Warranty Act, and fraud under Illinois consumer law. Chrysler counsel Kathy Wisniewski moved to dismiss the warranty claims, arguing that plaintiffs failed to provide notice before suing. She moved to dismiss the consumer fraud claims, arguing that plaintiffs failed to support the requisite element of causation. Coleman then moved to amend the complaint, and Chrysler opposed amendment. Rosenstengel reserved ruling on the amendment and gave Coleman a week to respond to the motion to dismiss. Coleman responded with reasons why the notice requirement didn't apply. Discovery proceeded while the parties awaited a decision. In October, former magistrate judge Stephen Williams allowed Chrysler to inspect vehicles of Hanusek, Swafford, and plaintiff Brian Kochman. In November, Kochman voluntarily dismissed his claim. This Feb. 8, Mitchell Breit from the New York City office of the Simmons firm entered an appearance. He represented Hanusek and Swafford at a status conference that day, along with Mark Silvey of Coleman's firm. On Feb. 27, Thien An Truong from the New York office entered an appearance. Rosenstengel dropped bad news on the growing team. "Plaintiffs first argue that Chrysler was put on notice for purposes of the Illinois express warranty statute when plaintiffs took their vehicles in to be serviced at authorized dealerships after the defect manifested," Rosenstengel wrote. She cited their precedent that presenting a vehicle to a dealer for repair of a defect provides sufficient notice. In that case, she wrote, plaintiff gave the dealer specific information about the defect and the warranty. "Here, however, the complaint does not allege that the dealership was made aware of such specific information regarding the defect," she wrote. She wrote that plaintiffs argued that Chrysler had the requisite actual knowledge necessary to overcome the notice requirement. "Importantly, the actual knowledge exception is not available to plaintiffs when the seller knows only the concerns of third parties," she wrote. "Instead, the seller must have actual knowledge of the litigating buyer's problem with the purchased product." She wrote that even though there are public reports about a general problem with a product line, a seller has no way of knowing whether a particular product actually suffers from the defect until the buyer provides notice. She wrote that plaintiffs alleged Chrysler had access to complaints filed with the National Highway Traffic Safety Administration, but that this demonstrated only that Chrysler was aware of third party complaints. "Additionally, none of these complaints mentions Chrysler's use of a coolant that negatively reacts with aluminum components," she wrote. "Nowhere in the complaint or proposed amended complaint do plaintiffs allege that Chrysler's knowledge of the sludge necessarily means Chrysler also had knowledge of a reaction between the manufacturer installed coolant and the aluminum components of the engine." She dismissed warranty claims with prejudice. She wrote that without Magnuson-Moss in the case, her only basis for jurisdiction was the Class Action Fairness Act. Rosenstegel further found that plaintiffs made only a conclusory allegation that the controversy met the $5 million minimum for federal jurisdiction. She also questioned whether plaintiffs showed that the number in their class met the jurisdictional prerequisite. Jury trial is sent for April 2020. [GN] CLUB EROTICA: Jackson Hits Tip Pool, Fees; Claims Reimbursements ---------------------------------------------------------------- Sonya Jackson, on behalf of herself and all others similarly situated, Plaintiff, v. Club Erotica, Club Erotica, Inc., V.I. Corporation, James W. Shepard, Vincenzo Isoldi, Franco Isoldi and Does 1-10, Defendants, Case No. 19-cv-00229, (E.D. N.Y., February 28, 2019) seeks minimum wages and to recover improper deductions taken from their wages and tips in violation of the Fair Labor Standards Act, the Pennsylvania Minimum Wage Act and the Pennsylvania Wage Payment and Collection Law. Defendants operate "Club Erotica," an adult entertainment bar where Jackson worked as a dancer. She claims to be misclassified as an independent contractor and deprived of the mandated minimum wage for all hours worked, forced to improperly share a percentage of their tips, denied reimbursements for her business expenses and was charged certain club fees. [BN] Plaintiff is represented by: Gary F. Lynch, Esq. Elizabeth Pollock-Avery, Esq. Edward Ciolko, Esq. CARLSON LYNCH LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Tel: (412) 322-9243 Fax: (412) 231-0246 Email: glynch@carlsonlynch.com eavery@carlsonlynch.com COFFEE MEETS BAGEL: Bonell Hits Data Breach Over Security Lapse --------------------------------------------------------------- John Bonell, on behalf of themselves and all others similarly situated, Plaintiff, v. Coffee Meets Bagel, Inc., Defendant, Case No. 2019CH02663 (Ill. Cir., February 28, 2019), seeks statutory damages together with costs and reasonable attorneys' fees resulting from breach of implied and express contract, negligence, and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act,. Coffee Meets Bagel, Inc. (CMB) owns and operates a dating service via a smartphone application called "Coffee Meets Bagel" where users must create a profile using their full names, email addresses, gender, registration date and other sensitive information. Starting in late 2017 and ending in the middle of 2018, CMB suffered a series of data beach incidents resulting in the unauthorized disclosure of over six million CMB's users, including Bonell. [BN] Plaintiff is represented by: Eugene Y. Turin, Esq. David L. Gerbie, Esq. Jad Sheikali, Esq. MCGUIRE LAW, P.C. 55 W. Wacker Drive, 9th Floor Chicago, IL 60601 Tel: (312) 893-7002 Fax: (312) 275-7895 Email: eturin@mcgpc.com dgerbie@mcgpc.com jsheikali@mcgpc.com CONDUENT EDUCATION: Court Denies Bid to Dismiss Amended Chery Suit ------------------------------------------------------------------ In the case, JEFFREY CHERY, on behalf of himself and all others similarly situated, Plaintiff, v. CONDUENT EDUCATION SERVICES, LLC, formerly known as ACS, ACCESS GROUP, INC., and ACCESS FUNDING 2015-1, LLC, Defendants, Case No. 1:18-CV-75 (N.D. N.Y.), Judge David N. Hurd of the U.S. District Court for the Northern District of New York denied the Defendants' motion to dismiss the amended complaint. On Jan. 18, 2018, Plaintiff Chery instituted the putative class action against the Defendants, student loan holders and their servicer, for interfering with his ability to consolidate his loans in accordance with a federal loan program. Chery is a Virginia resident who took out nine student loans through the Federal Family Education Loan Program ("FFELP"), while he lived in Queens, New York. ACS, a Delaware company that maintains an office in Utica, New York, initially serviced the Plaintiff's loans. Access Group, a Delaware corporation registered to do business in New York, owned seven of the Plaintiff's Loans, and Access Funding, another Delaware Company, owned the other two. Each of Chery's loans is governed by a Master Promissory Note ("MPN"), which included certain form disclosure statements that "identified the amount of the loan and additional terms of the loan." The Disclosure Statements received by Chery for each of the loans was sent by ACS, contained the ACS logo, and identified Access Group as the lender. On Feb. 4, 2016, Chery submitted a Federal Direct Consolidation Loan Application to FedLoan Servicing, an entity that services federal loans for the Public Service Loan Forgiveness Program ("PSLF"). FedLoan received Chery's Application and, in turn, sent a Loan Verification Certificate ("LVC") to ACS, a document which in essence required ACS to certify the balance of each of the Plaintiff's loans for purposes of consolidation and transfer to FedLoan, the new servicer. However, on Feb. 23, 2016, FedLoan e-mailed Chery to notify him that his Application had been denied "through no fault of his own." The Plaintiff called FedLoan, where a representative explained that the denial resulted from ACS's failure to return a completed LVC in the required 10-day time frame. Finally, in December 2016, approximately 10 months after Chery applied to FedLoan to consolidate his loans for the PSLF payment program, FedLoan received the LVC from ACS and approved plaintiff's application. Compl. ¶ 34. According to plaintiff, he lost up to ten qualifying PSLF payments as a result of ACS's delay. Chery alleges that certain documents produced by ACS in response to an information request he made revealed that ACS's failure to deliver timely or complete LVCs "was a pervasive problem." According to the Plaintiff, these documents show that ACS's failure to return the LVCs in the mandated time period was caused by a systemic flaw in ACS's servicing system that harmed thousands of similarly situated student loan borrowers. Chery's amended complaint alleges six claims: (1) a violation of New York General Business Law Section 349; (2) a breach of contract; (3) a breach of the implied covenant of good faith and fair dealing; (4) a request for declaratory judgment; (5) negligence; and (6) unjust enrichment. On April 24, 2018, the Defendants moved pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) to dismiss Chery's complaint. They contend Chery's entire complaint must be dismissed because his clams are premised on ACS' alleged breach of its duties under the Higher Education Act of 1965 ("HEA"), a statute that does not provide for a private cause of action. In the alternative, the Defendants argue the Plaintiff cannot identify any "actionable damages" flowing from the conduct about which he complains. Beyond these two arguments in support of complete dismissal of the Plaintiff's complaint, the Defendants advance a series reasons why each of the Plaintiff's individual claims must be dismissed. The Defendants argue Chery's claims are entirely premised on ACS' alleged delay in processing his LVC within the 10-business-day return period specified by the HEA and its corresponding regulations. Judge Hurd rejects this argument. He finds that argument does not provide a basis for dismissal. Other courts in the Circuit have permitted breach of contract-based claims to go forward where, as in the present case, the contract involves some aspect of a servicer's obligations under a federal student loan. The Defendants next argue that Chery has not identified any actionable damages flowing from ACS's delay in processing his LVC. The Judge also rejects this argument. Whatever the merit of this logic, the Judge holds it does not apply to Chery's claims. The Plaintiff's Section 349 claim is not premised on a theory that certain disclosures mandated by federal law had a misleading effect on him as a borrower. Rather, Chery alleges defendants engaged in a deceptive practice; i.e., the Defendants knew full well that their servicing system could not handle repayment requests made by borrowers in accordance with the provisions of their loan contracts (including those provisions incorporated by reference) and that the Defendants concealed this fact from borrowers to their detriment. The Defendants have failed to establish that this allegedly deceptive practice was either authorized by the Secretary of Education or conformed to any explicit dictates of federal law. The Defendants argue Chery's breach of contract claim must be dismissed because he failed to allege any breach of the loan agreements. Upon review, neither of the Defendants' argument justify dismissal. The Judge finds that Chery alleges that the Defendants provided him with a standard form contract on ACS letterhead that incorporated the MPNs and the Disclosure Statements. The Plaintiff further alleges that defendants breached the terms of those agreements because they failed to permit him to prepay the loans in accordance with the terms of those agreements. Whether the Defendants failed to perform these contractual duties, and whether they are in privity with Chery, are fact-specific questions that would be inappropriate to resolve on a motion to dismiss. As the Plaintiff's complaint alleges, he dealt directly with ACS and its representatives when making payments and when attempting to have his LVC issue resolved. Accordingly, the Defendants' motion to dismiss the Plaintiff's breach of contract claim will be denied. The Defendants contend that Chery's claim for breach of the implied covenant of good faith and fair dealing fails because it is duplicative of his claim alleging a breach of the express contract. At this early stage, Chery has sufficiently alleged distinct misconduct to survive dismissal of this claim. The Defendants deprived the Plaintiff of the "fruits" of his bargain -- the Plaintiff had the contractual right to pay off his loan at any time, but was prevented from doing so for many months. The Plaintiff alleges this was the result of bad faith attributable to the Defendants because, among other things, they knowingly chose to continue employing a system that was unable to provide accurate account balances/payoff amounts. Accordingly, the Judge will deny the Defendants' motion to dismiss the Plaintiff's implied covenant claim. The Defendants contend Chery's claim for declaratory relief fails because it is duplicative of his breach of contract claim and, in any event, there is no longer any "actual controversy" between the parties. The Judge holds that Chery has sufficiently alleged that he suffered an actual injury, and that the misconduct giving rise to this injury implicates the same set of concerns possessed by other members of the alleged class. Accordingly, the Defendants' motion to dismiss the Plaintiff's claim for declaratory judgment will be denied. The Defendants contend Chery's negligence claim must be dismissed because he cannot identify any duty owed to him. In the alternative, they argue that this claim is barred by New York's economic loss doctrine. Upon review, the Judge finds that the claim survives dismissal for now. The conduct about which Chery complains is almost certainly covered by his breach of contract claims. However, as the Plaintiff emphasizes, the Defendants contest the Plaintiff's claim that they are bound by the contracts at issue. As relevant in the case, the Plaintiff alleges the Defendants acted unreasonably in accepting money from a "large volume" of loan borrowers, including him, without properly accounting for that money. Accordingly, the Defendants' motion to dismiss the Plaintiff's negligence claim will be denied. Finally, the Defendants contend that Chery's claim for unjust enrichment must be dismissed because the parties' relationship is governed by an express contract. Chery's argument is well taken. The basis of a claim for unjust enrichment is that the Defendant has obtained a benefit which in 'equity and good conscience' should be paid to the Plaintiff. As relevant in the case, teh Judge holds that a quasi-contract theory of recovery like unjust enrichment may survive a motion to dismiss where the parties dispute the existence of a valid contract governing the disputed conduct. Accordingly, the Defendants' motion to dismiss this claim will be denied. based on the foregoing, Judge Hurd concludes that the Defendants' arguments require fact-bound inquiries suitable for disposition after discovery takes place. Therefore, he denied the Defendants' motion to dismiss. The Defendants will file and serve an answer to the complaint by April 12, 2019. A full-text copy of the Court's March 29, 2019 Memorandum Decisiona and Order is available at https://is.gd/BO6Vph from Leagle.com. Jeffrey Chery, on behalf of himself and all others similarly situated, Plaintiff, represented by Justin A. Kuehn -- jkuehn@moorekuehn.com -- Moore Kuehn, PLLC & Lawrence P. Eagel -- eagel@bespc.com -- Bragar Eagel & Squire, P.C. Conduent Education Services, LLC, formerly known as ACS, Access Group, Inc. & Access Funding 2015-1, LLC, Defendants, represented by John Grugan -- GRUGANJBALLARDSPAHR.COM -- Ballard, Spahr Law Firm, Eleanor Huyett, Ballard, Spahr Law Firm & Elizabeth Seidlin-Bernstein -- SEIDLINEBALLARDSPAHR.COM -- Ballard, Spahr Law Firm. COOK COUNTY, IL: Vargas Fair Hearing Claim Dismissed With Prejudice ------------------------------------------------------------------- In the case, JOSE VARGAS, et al., Plaintiffs, v. COOK COUNTY SHERIFF'S MERIT BOARD, et al., Defendants, Case No. 18 CV 1598 (N.D. Ill.), Judge Charles Ronald Norgle of the U.S. District Court for the District of Illinois, Eastern Division, granted in part the 10 separate motions to dismiss filed by Defendants Thomas Dart, Toni Preckwinkle, and Cook County. Plaintiffs Vargas, Joel Mireles, Juan Licea, Miguel Saucedo, Ronnie McGregor, Kathy Valentine, William Valentine, and Jamie Mireles bring the putative class action against Defendants Cook County Sheriffs Merit Board, Cook County Sheriff Dart, in his official and individual capacity, Cook County Board President Preckwinlde, in her official and individual capacity, Cook County, Illinois, and Nicholas Scouffas, in his individual capacity. The Plaintiffs' First Amended Complaint ("FAC") sets forth claims for violations of their Fourteenth Amendment procedural due process rights and various state law claims. The Plaintiffs are either past or present employees of the Cook County Sheriff's Office. They were, or are, employed as deputy sheriffs. They were charged by Dart with violating various policies and rules of the Sheriffs Office and were subsequently prosecuted and tried before the Merit Board. Thereafter, the Plaintiffs were terminated by the Merit Board, with the exception of Licea, who was suspended for 90 days. The Plaintiffs allege that they had completed their probationary periods of employment and had a constitutionally protected property interest in their employment as deputy sheriffs. In Count I, the Plaintiffs claim that Dart and Preckwinkle improperly appointed certain members of the Merit Board in violation of Illinois state law, and therefore they were deprived of due process because they were terminated or suspended by an illegally constituted Merit Board. In Count II, they claim that they were deprived of a fair hearing because the Merit Board was pressured and intimidated into terminating Plaintiffs by Dart and his General Counsel, Scouffas. The FAC also sets forth claims for declaratory relief, mandamus, negligence, common law fraud, breach of contract, willful and wanton conduct, and "class certification." The Plaintiffs further allege that there are hundreds of similarly-situated officers who were also subjected to unlawful disciplinary proceedings by the Merit Board. Before the Court are 10 separate motions to dismiss filed by Defendants Dart, Preckwinkle, and Cook County, all of which move to dismiss the action pursuant to Federal Rules of Civil Procedure 12(b)(6). The Defendants argue that based on the facts presently before the Court, the Plaintiffs are unable to state a cognizable claim for violation of procedural due process. Judge Norgle agrees. The Plaintiffs claim in Count I that that Dart and Preckwinkle terminated them without due process by appointing certain members of the Merit Board in violation of 55 ILCS 5/3-7002, thus subjecting them to an illegally constituted Merit Board. As discussed by the Illinois appellate court in Taylor v. Dart, whether the Merit Board was "illegally constituted" is strictly a matter of Illinois state law. Therefore, Dart and Preckwinkle's conduct as alleged in Count I does not provide a valid basis for a procedural due process claim. Accordingly, Count I is dismissed with prejudice. The Plaintiffs allege in Count II that they were deprived of a fair pre-deprivation hearing because Dart and Scouffas essentially assumed control of the Merit Board through political means and by threatening Merit Board members with removal if they issued decisions adverse Dart's position. Thus, the Plaintiffs claim that Dart and Scouffas violated the central provision of the Merit Board Act, that the Merit Board has the exclusive authority to terminate deputy sheriffs or suspend them for a period of more than 30 days. The Plaintiffs do not, however, challenge the adequacy of the procedures provided by the Merit Board Act. Thus, Plaintiffs due process claim in Count II is a challenge to Dart and Scouffas' "random and unauthorized" actions, i.e., "their unforeseeable misconduct in failing to follow the requirements of existing law." Therefore, Count II must be dismissed if Illinois law provides a sufficient post-deprivation remedy. Judge Norgle agrees with the list of cases which hold that the ARL provides a sufficient post-deprivation remedy. Count II is dismissed with prejudice because the ARL provides a constitutionally sufficient post-deprivation remedy. Moreover, having dismissed the Plaintiffs' due process claims with prejudice, the Judge relinquishes the Court's jurisdiction over the Plaintiffs' remaining state law claims pursuant to 28 U.S.C. Section 1367(c)(3). For the foregoing reasons, Judge Norgle dismissed with prejudice the Plaintiffs' due process claims, as set forth in Counts I and II of the FAC. Having resolved all claims over which the Court has original jurisdiction, the Court relinquishes jurisdiction over the Plaintiff's remaining state law claims. The civil case terminated. A full-text copy of the Court's March 29, 2019 Opinion and Order is available at https://is.gd/5x4gp8 from Leagle.com. Jose Vargas, Joel Mireles & Juan Licea, Plaintiffs, represented by Arthur S. Gold -- asg@gcjustice.com -- Gold & Associates, Ltd., Christopher Cooper -- cooperlaw3234@gmail.com -- Law Office of Christopher Cooper, Inc. & Cass Thomas Casper -- ctc@talonlaw.com -- Talon Law, LLC. Cook County Sheriff's Merit Board, Defendant, represented by Lyle Kevin Henretty, Cook County State's Attorney, Joi Kamper, Cook County State's Attorney & Jordan Lane Matthis -- jmatthis@grsm.com -- Gordon & Rees. Thomas Dart, Off. & Ind. Cap., Defendant, represented by George D. Sax, Scharf Banks Marmor LLC, Sarah R. Marmor, Scharf Banks Marmor LLC, Stephanie Ann Scharf, Scharf Banks Marmor LLC, Jay Rahman, Cook County State's Attorney's Office, Jordan Lane Matthis, Gordon & Rees & Morgan Geoffery Churma, Scarf Banks Marmor LLC. Toni Preckwinkle, Off. & Ind. Cap., Defendant, represented by Jay Rahman, Cook County State's Attorney's Office & Jordan Lane Matthis, Gordon & Rees. Cook County, Illinois, a unit of local government as joint employer and indemnitor, Defendant, represented by Jay Rahman, Cook County State's Attorney's Office, Jordan Lane Matthis, Gordon & Rees & Natalie Nicole Ellis, Cook County State's Attorney Office. CORECIVIC: Securities Suit Granted Class Action Status ------------------------------------------------------ Jamie McGee, writing for Nashville Tennessean, reports that a federal judge has granted class action status to shareholders suing Nashville-based CoreCivic for securities fraud in a lawsuit that reveals new details about the company's operations and staffing issues. The lawsuit, filed in August 2016 against the company and four executives, alleges CoreCivic, formerly named Corrections Corp. of America, made false and misleading statements about its operations related to safety, security and effectiveness and committed securities fraud violations. In an order filed on March 26 in U.S. District Court of Middle Tennessee, Judge Aleta Trauger granted the lawsuit class action status. Trauger had denied the status in January, and the plaintiffs subsequently filed a motion for reconsideration and submitted new evidence. Among the executives named in the lawsuit are CEO Damon Hininger, David Garfinkle, Todd Millenger and Harley Lappin. CoreCivic said it does not comment on active litigation. The lawsuit concerns an announcement made Aug. 18, 2016, that the U.S. Department of Justice would phase out contracts with private prison operators. Then-Deputy Attorney General Sally Q. Yates had instructed the Bureau of Prisons to end or reduce contracts with privately run prisons and cited concerns about safety and security in privately run facilities outlined in a separate report from the Office of the Inspector General. The OIG report said that privately run prisons had more safety and security incidents per capita than those run by the bureau of prisons and that CoreCivic prisons had the highest rates of fights and inmate-on-inmate assaults. After Yates' announcement, CoreCivic shares tumbled by 39 percent, and shareholders suffered financial losses because of the company's acts and omissions, the shareholders allege. Hininger in March 2016 told shareholders that its facilities "meets the needs of our government partners" and that the company has a "strong record of operational excellence," according to the new order. The order also referred to other company reports in which the company claimed to be compliant with government standards. The order says the BOP regularly notified CoreCivic about "inadequate staffing and its failure to provide sufficient medical services to its inmates." In 2015, the BOP said unless conditions related to health services are cured, the government may terminate its contract. In October 2015, according to the order, a CoreCivic executive wrote in an email to Hininger, "apparently we had a bad day with BOP medical audit at Cibola," a detention center in New Mexico. Another email said the matter "is going to kill us at both Cibola and Eden," a facility in Texas. In June 2016, as the BOP reviewed medical services at Cibola County Correctional Center, an executive wrote, "We're dead." That same month, Hininger said at an investor forum, "We have operationally made sure that we are providing high quality and standard and consistent services to our partners." When CoreCivic employees were given an advance version of the 2016 OIG report, an executive wrote, "What I'm shocked over is they totally overlooked the consequences of our staff vacancies. They mentioned staffing at the end but could have been much more critical," according to the order. In a separate order filed in December 2017 that denies CoreCivic's motion to dismiss, an affidavit by a correctional officer describes a 2012 incident that resulted in the death of another employee at a CoreCivic prison in Mississippi. The correctional officer said she was instructed to climb onto a roof after being warned about inmates planning "something big" and to eventually deploy gas canisters at inmates climbing a ladder to the roof, according to the court filing, citing the affidavit. The inmates threw the canisters back at two staff members, along with garbage cans and rocks before beating a staff member with a metal pan and food tray. That correctional officer said after she gained consciousness, she saw the other staff member lying motionless on the roof. She and her coworkers had told Corecivic officials on numerous occasions that they lacked the staff needed to control inmates and the shortage created a dangerous environment. She said she was told to "put my big girl panties on and get back to work," according to the order, citing the affidavit. The BOP sent CoreCivic several notices about staffing shortages and health services deficiencies at the Mississippi facility and a separate facility, Cibola, in New Mexico, according to the 2017 court filing. "Unsatisfactory" reviews were given to both sites. The company's Eden Detention Center in Texas received notices related to health services deficiencies and the BOP said its response to tuberculosis had been "inadequate." [GN] COSTCO WHOLESALE: Bond Seeks to Stop Deceptive Sale of Kona Coffee ------------------------------------------------------------------ Michael Bond and Mark Morris, on behalf of themselves and others similarly situated, individually, and on behalf of all others similarly situated, Plaintiffs, v. Costco Wholesale Corporation, Amazon.Com, Inc., Hawaiian Isles Kona Coffee, Ltd., LLC, Cost Plus/World Market, BCC Assets, LLC d/b/a Boyer's Coffee Company, Inc., Java LLC, Mulvadi Corporation, Copper Moon Coffee, LLC, Gold Coffee Roasters, Inc., Cameron's Coffee and Distribution Company, Pacific Coffee, Inc., The Kroger Co., Walmart Inc., Bed Bath and Beyond Inc., Albertsons Companies Inc., Safeway Inc., MNS Ltd., Marmaxx Operating Corp. Sprouts Farmers Market, Inc. and Does 1 through 50, inclusive, Defendants, Case No. 19-cv-00305 (W.D. Wash., March 1, 2019) seeks to recover compensation for lost profits, disgorgement of profits of the Defendants, corrective advertising damages, and statutory attorneys' fees and costs, equitable relief in the form of an injunction permanently prohibiting the Defendants from producing, marketing, selling or distributing any coffee products labeled Kona, an injunction prohibiting the retail of any coffee products that falsely designate Kona as the source of origin in violation of the Lanham Act. Kona coffee is grown on farms located within the Kona District of Hawaii. Defendants are coffee distributors, wholesalers, and retailers who allegedly pass off ordinary commodity coffee as Kona coffee and have flooded the market with counterfeit Kona coffee products. Plaintiffs purchased coffee from the Defendants.[BN] The Plaintiff is represented by: Nathan T. Paine, Esq. KARR TUTTLE CAMPBELL 701 Fifth Avenue, Suite 3300 Seattle, WA 98104 Telephone: (206) 223-1313 Facsimile: (206) 682-7100 Email: npaine@karrtuttle.com - and - Paul Richard Brown, Esq. KARR TUTTLE CAMPBELL 701 Fifth Avenue, Suite 3300 Seattle, WA 98104 Telephone: (206) 223-1313 Facsimile: (206) 682-7100 Email: pbrown@karrtuttle.com COSTCO WHOLESALE: Kona Coffee Farmers File Mislabeling Suit ----------------------------------------------------------- Bruce Corker, Colehour Bondera and Melanie Bondera (husband and wife) and Robert Smith and Cecelia Smith (husband and wife), on behalf of themselves and others similarly situated, individually, and on behalf of all others similarly situated, Plaintiffs, v. Costco Wholesale Corporation, Amazon.Com, Inc., Hawaiian Isles Kona Coffee, Ltd., LLC, Cost Plus/World Market, BCC Assets, LLC d/b/a Boyer's Coffee Company, Inc., Java LLC, Mulvadi Corporation, Copper Moon Coffee, LLC, Gold Coffee Roasters, Inc., Cameron's Coffee and Distribution Company, Pacific Coffee, Inc., The Kroger Co., Walmart Inc., Bed Bath and Beyond Inc., Albertsons Companies Inc., Safeway Inc., MNS Ltd., Marmaxx Operating Corp. Sprouts Farmers Market, Inc. and Does 1 through 50, inclusive, Defendants, Case No. 19-cv-00290 (W.D. Wash., February 27, 2019) seeks to recover compensation for lost profits, disgorgement of profits of the Defendants, corrective advertising damages, and statutory attorneys' fees and costs, equitable relief in the form of an injunction permanently prohibiting the Defendants from producing, marketing, selling or distributing any coffee products labeled Kona, and an injunction prohibiting the retail of any coffee products that falsely designate Kona as the source of origin pursuant to the Lanham Act. Kona coffee is grown on farms located within the Kona District of Hawaii. Defendants are coffee distributors, wholesalers, and retailers who allegedly pass off ordinary commodity coffee as Kona coffee and have flooded the market with counterfeit Kona coffee products. Plaintiffs are Kona coffee producers.[BN] The Plaintiff is represented by: Nathan T. Paine, Esq. Mark A. Bailey, Esq. KARR TUTTLE CAMPBELL 701 Fifth Avenue, Suite 3300 Seattle, WA 98104 Telephone: (206) 223-1313 Facsimile: (206) 682-7100 Email: npaine@karrtuttle.com mbailey@karrtuttle.com - and - Paul Richard Brown, Esq. Daniel T. Hagen, Esq. KARR TUTTLE CAMPBELL 701 Fifth Avenue, Suite 3300 Seattle, WA 98104 Telephone: (206) 223-1313 Facsimile: (206) 682-7100 Email: pbrown@karrtuttle.com dhagen@karrtuttle.com CSX CORP: Still Defends Fuel Surcharge Antitrust Litigation ----------------------------------------------------------- CSX Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 17, 2019, for the quarterly period ended March 31, 2019, that the company continues to defend itself against Fuel Surcharge Antitrust Suit. In May 2007, class action lawsuits were filed against CSXT and three other U.S.-based Class I railroads alleging that the defendants' fuel surcharge practices relating to contract and unregulated traffic resulted from an illegal conspiracy in violation of antitrust laws. In November 2007, the class action lawsuits were consolidated in federal court in the District of Columbia, where they are now pending. The suit seeks treble damages allegedly sustained by purported class members as well as attorneys' fees and other relief. Plaintiffs are expected to allege damages at least equal to the fuel surcharges at issue. In June 2012, the District Court certified the case as a class action. The decision was not a ruling on the merits of plaintiffs' claims, but rather a decision to allow the plaintiffs to seek to prove the case as a class. The defendant railroads petitioned the U.S. Court of Appeals for the D.C. Circuit for permission to appeal the District Court's class certification decision. In August 2013, the D.C. Circuit issued a decision vacating the class certification decision and remanded the case to the District Court to reconsider its class certification decision. On October 10, 2017, the District Court issued an order denying class certification. The U.S. Court of Appeals for the D.C. Circuit is reviewing the District Court's denial of class certification and held oral argument on September 28, 2018, with a decision yet to be issued. The District Court has delayed proceedings on the merits of the case pending the outcome of the class certification proceedings. CSXT believes that its fuel surcharge practices were arrived at and applied lawfully and that the case is without merit. Accordingly, the Company intends to defend itself vigorously. However, penalties for violating antitrust laws can be severe, and resolution of this matter or an unexpected adverse decision on the merits could have a material adverse effect on the Company's financial condition, results of operations or liquidity in that particular period. No further updates were provided in the Company's SEC report. CSX Corporation, together with its subsidiaries, provides rail-based freight transportation services. The company offers rail services, as well as transports intermodal containers and trailers. CSX Corporation was founded in 1978 and is based in Jacksonville, Florida. DITECH HOLDING: Kamimura Class Suit in Nevada Stayed ---------------------------------------------------- Ditech Holding Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 16, 2019, for the fiscal year ended December 31, 2018, that the case styled as, Kamimura, Lee C. v. Green Tree Servicing LLC, has been stayed. In Kamimura, Lee C. v. Green Tree Servicing LLC, filed on April 8, 2016 in the U.S. District Court for the District of Nevada, Ditech Financial is subject to a putative nationwide class action suit alleging FCRA violations by obtaining credit bureau information without a permissible purpose after the discharge of debt owed to Ditech Financial pursuant to Chapter 13 of the Bankruptcy Code. The plaintiff in this suit, on behalf of himself and others similarly situated, seeks actual and punitive damages, statutory penalties, and attorneys' fees and litigation costs. On February 11, 2019, the action was stayed pursuant to section 362 of the Bankruptcy Code. Ditech Holding Corporation operates as an independent servicer and originator of mortgage loans, and servicer of reverse mortgage loans. The company operates through three segments: Servicing, Originations, and Reverse Mortgage. Ditech Holding Corporation was founded in 1958 and is based in Fort Washington, Pennsylvania. On February 11, 2019, Ditech Holding Corporation, along with its affiliates, filed a voluntary petition for reorganization under Chapter 11 in the U.S. Bankruptcy Court for the Southern District of New York. EDEN MANAGEMENT: Faces Class Action Over Worker Fingerprint Scans ----------------------------------------------------------------- Carrie Bradon, writing for Cook County Record, reports that the operator of a group of assisted living homes in Chicago and elsewhere in Illinois has been hit with a class action lawsuit, accusing it of violating its workers rights by making them scan their fingerprints when they punch in and out of work shifts, allegedly in violation of an Illinois privacy law. Louis Bermudes, individually and on behalf of all others similarly situated, filed a complaint on March 13 in Cook County Circuit Court against Eden Management LLC. According to its website, Eden Management operates four supportive living centers in Illinois, incliding locations in Chicago, suburban North Aurora and downstate Champaign. According to the complaint, the plaintiff alleges Eden required workers to use the company's biometric time clocks for clocking in and out, requiring them to scan their fingerprints for each punch. The plaintiff alleges workers weren't informed the defendant would be retaining the biometric information and claims the defendant was in violation of the Illinois Biometric Information Privacy Act. The plaintiff is seeking damages of $1,000 to $5,000 per violation, plus attorney fees and court costs. The plaintiff is represented by attorneys David Fish, Seth Matus, Kimberly Hilton, John Kunze of The Fish Law Firm P.C. in Naperville. Circuit Court of Cook County Case No. 2019-CH-03300 [GN] ELLIE MAE: Rigrodsky & Long Files Securities Class Action --------------------------------------------------------- Rigrodsky & Long, P.A. on March 26 disclosed that it has filed a class action complaint in the United States District Court for the District of Delaware on behalf of holders of Ellie Mae, Inc. ("Ellie Mae") (NYSE: ELLI) common stock in connection with the proposed acquisition of Ellie Mae by affiliates of Thoma Bravo Fund XIII, L.P. ("Thoma Bravo") announced on February 12, 2019 (the "Complaint"). The Complaint, which alleges violations of the Securities Exchange Act of 1934 against Ellie Mae and its Board of Directors (the "Board"), is captioned Kent v. Ellie Mae, Inc., Case No. 1:19-cv-00473 (D. Del.). If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Seth D. Rigrodsky or Gina M. Serra at Rigrodsky & Long, P.A., 300 Delaware Avenue, Suite 1220, Wilmington, DE 19801, by telephone at (888) 969-4242, by e-mail at info@rl-legal.com, or at http://rigrodskylong.com/contact-us/. On February 11, 2019, Ellie Mae entered into an agreement and plan of merger (the "Merger Agreement") with Thoma Bravo. Pursuant to the terms of the Merger Agreement, shareholders of Ellie Mae will receive $99.00 in cash for each share of Ellie Mae they own (the "Proposed Transaction"). Among other things, the Complaint alleges that, in an attempt to secure shareholder support for the Proposed Transaction, defendants issued materially incomplete disclosures in a proxy statement (the "Proxy Statement") filed with the United States Securities and Exchange Commission. The Complaint alleges that the Proxy Statement omits material information with respect to, among other things, Ellie Mae's financial projections and the analyses performed by Ellie Mae's financial advisor. The Complaint seeks injunctive and equitable relief and damages on behalf of holders of Ellie Mae common stock. If you wish to serve as lead plaintiff, you must move the Court no later than May 27, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Any member of the proposed class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. With offices in Delaware, New York, and California, Rigrodsky & Long, P.A. -- http://www.rigrodskylong.com-- has recovered hundreds of millions of dollars on behalf of investors and achieved substantial corporate governance reforms in numerous cases nationwide, including federal securities fraud actions, shareholder class actions, and shareholder derivative actions. [GN] EMPATH LLC: Technicians Seeks Unpaid Overtime, Illegal Deductions ----------------------------------------------------------------- Jonaser Castaneda and Greg Paliaro, on behalf of themselves and all others similarly situated, Plaintiff, v. Empath LLC, Defendant, Case No. 19-cv-00131 (E.D. La., February 28, 2019), seeks to recover unpaid overtime wages, illegal deductions, liquidated damages, prejudgment and reasonable attorneys' fees and costs under the Fair Labor Standards Act. Empath provides telecommunication and installation service, specifically installing DirecTV and Exede Internet, for residential and commercial clients where Plaintiffs worked as technicians. They claim to have worked more than 40 hours per week without being paid the overtime rate and penalized for "charge-backs" that were deducted from their pay. [BN] Plaintiff is represented by: George B. Recile, Esq. Preston L. Hayes, Esq. Matthew A. Sherman, Esq. Ryan P. Monsour, Esq. Matthew A. Sherman, Esq. CHEHARDY, SHERMAN, WILLIAMS, MURRAY RECILE, STAKELUM & HAYES, L.L.P. One Galleria Boulevard, Suite 1100 Metairie, LA 70001 Telephone: (504) 833-5600 Facsimile: (504) 613-4528 FLAGSHIP CREDIT: Settles TCPA Class Action for $4MM --------------------------------------------------- Pat Sweet, writing for Asset Finance International, reports that sub-prime auto lender Flagship Credit Acceptance has made a $4 million settlement to resolve a class action over claims the company called consumers using a computerised autodialing system in violation of federal law. The claim -- which has been strongly denied by the finance company -- relates to individuals who were called by Flagship through any version of a TCN, LiveVox, or Aspect dialing system and/or with an artificial or prerecorded voice between 2013 and 2018. According to the Flagship Credit class action lawsuit, the auto loan company "bombarded" plaintiff Robert Ward with unwanted prerecorded messages even though he is not a Flagship customer. Ward claims that he repeatedly waited on the line to speak with a live agent to inform them that they were calling the wrong number. The auto loan financing class action also claims that Ward was often assured by Flagship agents that the automated calls would stop, but in fact they continued over his objection. Ward states that because Flagship did not have his permission to call his mobile phone and the prerecorded messages were not made for "emergency purposes", the auto financing company violated the Telephone Consumer Protection Act (TCPA). The TCPA is a federal law designed to protect consumers from harmful telemarketing practices. These include placing robocalls through an autodialing machine or prerecorded message, sending unsolicited text messages, not providing consumers with an opt-out option during telemarketing calls, and calling numbers on the Do Not Call Registry, among other issues. Under the regulation, consumers can be eligible for compensation of between $500 and $1,500 per violation by taking offending businesses to court. Flagship does not admit any wrongdoing and "vigorously denies" the claims against it, but is settling the class action for $4 million to avoid the costs of future litigation and the uncertainty of a trial verdict. Headquartered in Chadds Ford, Pennsylvania with offices in Irving, Texas, Phoenix, Arizona, Irvine, California and Indianapolis, Indiana, Flagship helps credit-challenged auto shoppers secure financing through partnerships with auto dealers and through its direct lending site, CarFinance.com. It has a portfolio of $2.9 billion in managed receivables. The company currently purchases indirect auto contracts from a nationwide network of more than 9,400 dealers and originates direct to consumers in 46 states. [GN] FORMEL D: McMurray Sues Over Unpaid Overtime Compensation --------------------------------------------------------- ALLEN L. MCMURRAY, on behalf of himself and all other employees similarly situated, Plaintiff, v. FORMEL D, Defendant, Case No. 2:19-cv-00548-JHE (N.D. Ala., April 9, 2019) is a collective action lodged to recover unpaid overtime wages owed to Mr. McMurray and other similarly situated employees. The Plaintiff alleged that Formel D violated the Fair Labor Standards Act (FLSA) by failing to pay its technicians overtime for all hours worked. Formel required McMurray and other similarly situated individuals to perform unpaid work in excess of forty hours per week without paying them overtime wages. Formel used a computerized system to keep track of the hours worked by the Plaintiff and the putative class he seeks to represent. However, whenever employees complained of that their paycheck stubs did not reflect their overtime hours, Formel stated that they would fix the issue. They have intentionally failed to do so, says the complaint. Plaintiff Allen L. McMurray, is over the age of nineteen (19) and is employed with Formel as a Tech I. McMurray has expressly authorized the filing of this action. Defendant Formel is a global provider to the automotive and component supply industry.[BN] The Plaintiff is represented by: Roderick T. Cooks, Esq. Charity M. Davis, Esq. WINSTON COOKS, LLC The TLC Financial Center 505 20th Street North, Suite 815 Birmingham, AL 35203 Phone: (205) 502-0940 Email: rcooks@winstoncooks.com charity@gilchristdavis.com GOOGLE INC: Gibson Dunn Attorney Discusses Cy Pres Ruling --------------------------------------------------------- Mark A. Perry, Esq. -- mperry@gibsondunn.com -- of Gibson, Dunn & Crutcher, in an article for Mondaq, reports that the Supreme Court determined that questions concerning plaintiffs' standing to challenge Google's alleged violations of user privacy prevented the Court from deciding whether cy pres-only class action settlements are fair, reasonable, and adequate under Federal Rule of Civil Procedure 23(e). Decided March 20, 2019 Frank v. Gaos, No. 17-961 Background: Plaintiffs, on behalf of a putative class of 129 million users of Google's search engine, alleged that Google violated users' privacy under the Stored Communications Act, 18 U.S.C. § 2701 et seq., by disclosing the search terms they used to third-party websites. The parties agreed to an $8.5 million class action settlement consisting of $2 million in attorneys' fees and costs and $6.5 million distributed as a cy pres award to various institutions studying internet privacy and information sharing. Under the proposed settlement, class members would receive no money. The district court approved the settlement, concluding that it would not be feasible to distribute the $6.5 million portion of the settlement to class members. The Ninth Circuit affirmed. Issue: Whether a class action settlement is fair, reasonable, and adequate under Federal Rule of Civil Procedure 23(e) when class members receive no direct, monetary relief and instead all of the settlement funds are distributed to cy pres beneficiaries. Court's Holding: The lower courts should decide in the first instance whether any named plaintiff has Article III standing. "Resolution of the standing question should take place in the District Court or the Ninth Circuit in the first instance. We therefore vacate and remand for further proceedings." Per Curiam What It Means: Although the Supreme Court granted certiorari to decide an important question concerning cy pres awards, the Court, in response to an argument raised by the Solicitor General in an amicus brief, ordered supplemental briefing on whether any named plaintiff had Article III standing. The Court ultimately accepted the Solicitor General's view that the case should be remanded for the lower courts to address that question in the first instance—thus demonstrating the effect that an amicus brief can have on the outcome of a case. In the lower courts, the plaintiffs alleged that they had Article III standing because Google, by disclosing their search terms, allegedly violated their rights under the Stored Communications Act to be free from unlawful disclosure of certain communications. But the Supreme Court questioned whether those allegations established Article III standing in light of Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which recognized that the alleged violation of a statutory right does not automatically satisfy Article III's injury-in-fact requirement. Justice Thomas dissented. As in his concurring opinion in Spokeo, Justice Thomas reiterated that "a plaintiff seeking to vindicate a private right need only allege an invasion of that right to establish standing." He would have held that the named plaintiffs had standing based on the alleged violation of Google's private duties owed to them under state and federal law. Justice Thomas also would have reversed the class certification and class settlement orders and held that the absent class members' interests were not adequately represented because only the named plaintiffs and class counsel received significant benefits, and the lack of relief for absent class members rendered the settlement unfair and unreasonable under Rule 23(e). [GN] GREAT-WEST LIFE: Obtains Favorable Ruling in ERISA Class Action --------------------------------------------------------------- Law360 reports that the Tenth Circuit handed a win to Great-West Life & Annuity Insurance Co. on March 27 in an Employee Retirement Income Security Act class action over how it distributed investment profits. [GN] HILL'S PET: Dog Owners Sue Over Toxic Pet Food ---------------------------------------------- Amanda Chapman, Betty Lee and Diane McDaniel, on behalf of themselves and all others similarly situated, Plaintiff, v. Hill's Pet Nutrition, Inc., Defendants, Case No. 19-cv-00070, (E.D. Tenn., February 27, 2019), seeks monetary relief and an order forcing Hill's to pull out all potentially toxic products from shelves; and redress for breach of contract, duties and covenants of good faith and fair dealing, and violation of the Magnuson-Moss Warranty Act and the Tennessee Consumer Protection Act of 1977. Hill's manufactures and sells pet food at veterinary clinics and pet retailers across the United States, including the Specialty Dog Foods. It has allegedly manufactured, sold and warranted Specialty Dog Foods containing toxic and often fatal levels of vitamin D, which can cause symptoms such as vomiting, loss of appetite, increased thirst, increased urination, excessive drooling, and weight loss, and can lead to serious health issues in dogs including renal dysfunction and failure and death. [BN] The Plaintiff is represented by: Gregory F. Coleman, Esq. Adam A. Edwards, Esq. Mark E. Silvey, Esq. Jeffrey H. Glaspie, Esq. William A. Ladnier, Esq. GREG COLEMAN LAW PC 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Telephone: (865) 247-0080 Facsimile: (865) 522-0049 Email: greg@gregcolemanlaw.com adam@gregcolemanlaw.com mark@gregcolemanlaw.com jeff@gregcolemanlaw.com will@gregcolemanlaw.co HONEYWELL INTERNATIONAL: Still Defends Kanefsky Class Action ------------------------------------------------------------ Honeywell International Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 18, 2019, for the quarterly period ended February 28, 2019, that the company continues to defend itself against a class action suit initiated by David Kanefsky. On September 13, 2018, following completion of the Securities and Exchange Commission (SEC) Division of Corporation Finance's review of our prior accounting for liabilities for unasserted Bendix-related asbestos claims, the SEC Division of Enforcement advised that it has opened an investigation related to this matter. Honeywell intends to provide requested information and otherwise fully cooperate with the SEC staff. On October 31, 2018, David Kanefsky, a Honeywell shareholder, filed a putative class action complaint alleging violations of the Securities Exchange Act of 1934 and Rule 10b-5 related to the prior accounting for Bendix asbestos claims. Honeywell said, "We believe the Complaint has no merit." Honeywell International Inc. operates as a diversified technology and manufacturing company worldwide. Its Aerospace segment supplies products, software, and services for aircrafts and vehicles. Honeywell International Inc. was incorporated in 1985 and is based in Morris Plains, New Jersey. INT'L BUSINESS: Ex-Employees File Age-Discrimination Class Action ----------------------------------------------------------------- Peter Gosselin, writing for ProPublica, reports that a group of former employees has filed a lawsuit against IBM that accuses the tech giant of failing to comply with a federal law that requires companies to disclose the ages of people they lay off who are 40 or older. The suit, filed in federal district court in New York City, also alleges that the company has improperly prevented workers from combining to challenge their ousters. It is the second broad legal action against IBM since a 2018 ProPublica story that documented widespread age discrimination by the company in its global restructuring. The former employees are asking the court to invalidate a written agreement that IBM requires its employees to sign to receive severance pay. Under the document's provisions, workers agree to give up any right to challenge their dismissal in court. Until now, most age-related legal actions contesting an IBM layoff have been brought by the rare ex-worker who refused to sign the agreement and left without severance. If the district court were to agree that IBM's separation agreement is invalid, it could open the company up to lawsuits by tens of thousands of older workers IBM has laid off in recent years. The lawsuit and the string of other cases filed in the wake of ProPublica's story face steep odds as a result of decisions by the Supreme Court and federal appeals courts that curtailed workers' ability to challenge employers' staffing decisions. The rationale is to limit what federal judges view as cumbersome, costly cases that hamstring both employers and the courts. "The Supreme Court is hostile to class action, to collective action and to employees," said Cliff Palefsky, a prominent San Francisco attorney who frequently represents employees. "Congress needs to step in to preserve the integrity of its own civil right laws, not just involving age, but also race and gender. So far, it hasn't." ProPublica reported in March 2018 that IBM, which had annual revenue of $79 billion last year, had ousted an estimated 20,000 U.S. workers ages 40 and over during the preceding five years. In some instances, it used money saved from the departures to hire young replacements to, in the words of one internal company document, "correct seniority mix." The new lawsuit follows legal action last fall by Boston class-action lawyer Shannon Liss-Riordan, who filed a class-action case on behalf of 60 ex-IBM employees who had not signed the severance agreement and argued they had been discriminated against because of their age. In tandem, Liss-Riordan filed scores of arbitration claims for ex-employees who had signed the document, which only permits workers to pursue age claims in individual arbitration hearings. The New York lawsuit opens a new legal front, challenging the IBM agreement's one-at-a-time restriction as a violation of workers' rights under the federal Age Discrimination in Employment Act. The law allows laid-off workers to take legal action against their employers as a group, either in court or arbitration. "IBM against one person is not a fair fight," said David Webbert, an Augusta, Maine, lawyer who, together with his partner, Jeffrey Young, and a Washington-based law firm, filed the new case. "IBM against thousands of people who've been laid off because of their age, that's a legitimate legal proceeding. "IBM is afraid of a fair fight," Webbert said. A spokesman said the company had no comment on the latest lawsuit. In response to ProPublica's initial findings in 2018, IBM said: "We are proud of our company and our employees' ability to reinvent themselves era after era, while always complying with the law. Our ability to do this is why we are the only tech company that has not only survived but thrived for more than 100 years." The new suit is filed in the name of four ex-employees who were in their mid-50s when they were ousted by the company, including Cheryl Witmer of Firestone, Colorado. Witmer said in an interview she began her career repairing IBM Selectric typewriters in 1984 and was a program manager in the company's cloud division in 2016 when she unexpectedly received a bad job-performance rating and was told she was retiring. "But I'm not retiring," she said she told her manager. "Yes, you are," she quoted the manager as replying. ProPublica documented dozens of similar employee ousters that began as layoffs but were converted to retirements, a change that kept down IBM's layoff counts, where high numbers can trigger public disclosure requirements. Witmer said she felt she had little choice but to sign the company's severance agreement because she needed the money while she looked for a new job. "I couldn't afford not to" sign, she said. The ADEA requires that workers over 40 who are being laid off be told the job positions and the ages of the position holders who are being laid off with them so they can decide whether to pursue an age-discrimination case or to waive the right to do so. IBM stopped providing this information to employees in 2014 when it rewrote its severance agreement. Under the previous agreement, departing employees could not receive severance unless they agreed to waive their right to pursue legal action. The new agreement employees were required to sign to receive severance did allow them to file claims of discrimination, but only in individual hearings before an arbitrator. IBM executives appear to have concluded that this change in the document permitted them to stop providing the ages of employees were being laid off. Legal experts say this made it much harder to find evidence of age discrimination, which requires establishing a pattern drawn from large numbers of layoffs. Until the newly filed suit, IBM's decision to stop disclosing age information has not faced legal challenge. [GN] KONA GRILL: Boots Suit Against Kona Sushi Underway -------------------------------------------------- Kona Grill, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 16, 2019, for the fiscal year ended December 31, 2018, that Kona Sushi, Inc., a company subsidiary, continues to defend a class action suit initiated by Mitchell Boots. On July 27, 2017, a class action complaint was filed against Kona Sushi, Inc., a wholly-owned subsidiary of the Company, by Mitchell Boots, individually and on behalf of a Proposed Rule 23 Class, in the United States District Court for Minnesota claiming, among other things, that the Company violated Minnesota gratuity/tip pooling laws with respect to certain classes of restaurant employees. The plaintiff has brought claims on behalf of a putative Minnesota class and a putative national class of employees. On October 25, 2017, the plaintiff amended the complaint to withdraw the national class claims and other common law claims, leaving one claim on behalf of a putative Minnesota class, and added a second named Plaintiff, Tracy Fortman. The parties participated in mediation on August 3, 2018, which concluded without resolution. Therefore, the matter is proceeding in accordance with the court-scheduled dates. Kona Grill said, "As we intend to diligently defend this matter we believe the possible loss or range of loss cannot be determined at this time, and therefore we have not accrued any costs associated with this matter as of December 31, 2018. Given the Company's current liquidity, a negative result in this matter could have a material adverse effect on the Company's cash position, financial condition and operations." Kona Grill, Inc. owns and operates upscale casual restaurants under the Kona Grill brand name. As of December 31, 2017, it owned and operated 46 restaurants in 23 states of the United States and Puerto Rico; and 3 franchised restaurants in Mexico, the United Arab Emirates, and Canada. The company is based in Scottsdale, Arizona. L&K COFFEE: Faison Sues Over Counterfeit Kona Coffee ---------------------------------------------------- Walter Faison individually and on behalf of all others similarly situated, Plaintiff v. L&K Coffee Co., LLC, Defendant, Case No. 19-cv-01248 (E.D. N.Y., March 3, 2019), seeks restitution and disgorgement of inequitably obtained profits, preliminary and permanent injunctive relief, monetary and punitive damages and interest, costs and expenses, including reasonable fees for attorneys and experts and such other and further relief resulting from unjust enrichment and violations of New York general business laws. Kona coffee is grown on farms located within the Kona District of Hawaii. L & K Coffee Co. sells coffee products under the Magnum Exotics label, available to consumers nationwide at brick-and-mortar retailers including Costco, Walmart, T.J. Maxx and Marshalls, third-party websites and online. They allegedly pass off ordinary commodity coffee as Kona coffee.[BN] Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 891 Northern Blvd., Suite 201 Great Neck, NY 11021 Tel: (516) 303-0552 Email: spencer@spencersheehan.com LEON COUNTY, FL: Court Denies Bid to Certify Class in Knight Suit ----------------------------------------------------------------- In the case, BRITTANY KNIGHT, Petitioner, v. SHERIFF OF LEON COUNTY, Respondent, Case No. 4:17cv464-RH/CAS (N.D. Fla.), Judge Robert L. Hinkle of the U.S. District Court for the Northern District of Florida, Tallahassee Division, denied the Plaintiff's motion to certify a class. An infant died in Ms. Knight's care in Leon County on June 9, 2015. The record includes allegations that Ms. Knight was operating an illegal daycare center, was impaired, and gave the child an overdose of sleep medicine. The record includes a proffer that, after the death, Ms. Knight went to her mother's home in Cairo, Georgia, perhaps 35 miles away, and that at some later point, Ms. Knight became employed at another childcare facility. More than a year after the death, on June 17, 2016, a Leon County grand jury indicted Ms. Knight for aggravated manslaughter. The court issued a capias for Ms. Knight's arrest setting bail at $500,000. Ms. Knight was arrested that same day. At her first appearance on June 18, 2016, bail remained at $500,000, a result apparently required because the capias did not authorize a court to reduce bail at first appearance. Ms. Knight was unable to make bail and so remained in custody. On June 28, 2016, Ms. Knight moved to reduce bail. The court conducted a hearing on the motion on Aug. 11, 2016. Ms. Knight said she could afford bail of no more than $10,000. She noted her lack of a criminal record and her ties to the community. The court reduced bail to $250,000 and imposed nonmonetary conditions of release: that Ms. Knight submit to drug testing and have no contact with children other than her own or with the victim's mother. Ms. Knight could not make bail and so remained in custody. On Sept. 23, 2016, Ms. Knight filed a petition for a writ of habeas corpus in the Florida First District Court of Appeal. She asserted that $250,000 was excessive, that she had in effect been detained, and that detaining her without considering alternatives was unconstitutional. The court denied the petition on Feb. 21, 2017. The court said that to prevail on the claim that $250,000 was excessive, Ms. Knight would have to show that any amount over $10,000 was excessive, because she had said she could afford nothing more than that. The court rejected without explanation the contention that any amount above $10,000 would be excessive. And the court said any further constitutional claim had not been presented in the trial court and thus could not be considered on the habeas petition. On Feb. 28, 2017, Ms. Knight filed in the trial court a second motion to reduce bail. When the trial court did not take up the motion, Ms. Knight sought relief in the First District. That court ordered the state to notify it by April 28, 2017 whether the trial court had ruled on the motion to reduce bail. Perhaps not coincidentally, the trial court conducted a hearing on the motion on April 28. Ms. Knight made essentially the same arguments she now makes in the Court: that unaffordable bail is unconstitutional unless the Court finds, based on clear and convincing evidence, that no alternative is available that would reasonably assure the Defendant's appearance as required and the safety of the community. The trial court implicitly rejected the constitutional argument but noted that the critical factors in setting bail are risk of nonappearance and danger to the community. It explicitly found that Ms. Knight posed "a danger to the community." It seemed to find also that Ms. Knight posed a risk of nonappearance; the court said she fled to Cairo after the death of the child. Ms. Knight filed another petition for a writ of habeas corpus in the First District on May 4, 2017. The court denied the writ on Oct. 2, 2017 in an order consisting of one sentence and a citation. Shortly before Oct. 9, 2017, Ms. Knight agreed to accept the state's plea offer, under which she would plead nolo contendere to the charge of aggravated manslaughter and receive a nine-year prison sentence. On October 9, a plea hearing was set for October 18. On October 13, Ms. Knight filed the federal petition, challenging her pretrial detention. On October 18, Ms. Knight appeared in state court and entered the nolo plea. The state court accepted the plea and sentenced Ms. Knight to nine years. She is serving that sentence. When Ms. Knight entered the plea, she had been in custody for 16 months. Despite her repeated efforts, no state court had addressed her constitutional claim on the merits. The proposed class action presents a constitutional challenge to the bail practices of the state court in Leon County, Florida. The record would support a finding that the court routinely sets unaffordable bail with the effect, and sometimes with the purpose, of detaining a defendant pending trial. The court set unaffordable bail for Brittany Knight. Ms. Knight filed the petition for a writ of habeas corpus under 28 U.S.C. Seciton 2241. The respondent is the Sheriff of Leon County -- the official in whose custody Ms. Knight was held when she filed the action. Ms. Knight seeks to represent a class of individuals detained on unaffordable bail in Leon County. Pending are cross-motions for summary judgment. Also pending is a motion to certify the class. Ms. Knight's claim rests on two propositions. The first is that unaffordable bail is constitutionally equivalent to pretrial detention. The second is that pretrial detention is constitutional only if a court finds -- Ms. Knight says by clear and convincing evidence after timely notice and an adequate opportunity to be heard -- that no alternative is available that would reasonably assure the Defendant's appearance as required and the safety of the community. Ms. Knight's claim does not address the separate question of how long a Defendant can be detained from the time of arrest until an initial bail hearing. Judge Hinkle finds that the state courts never explained their rejection of Ms. Knight's constitutional claim. Perhaps she did not make her position sufficiently clear. Or perhaps the courts thought her position so plainly unfounded that it was not worthy of a response. If so, the courts were wrong. Ms. Knight's constitutional claim was substantial. As to whether detaining Ms. Knight was substantively unconstitutional, the Judge finds that the substantive constitutional issues break down this way. Ms. Knight's unaffordable bail was equivalent to detention. The detention was constitutional only if Ms. Knight posed a danger to the community or risk of nonappearance -- the state has proffered no other compelling interest supporting detention. The state courts' implicit contrary rulings on these constitutional issues are entitled to no deference and are incorrect. But the state trial court's explicit finding that Ms. Knight posed a danger to the community and its implicit finding that Ms. Knight posed a flight risk -- findings that the First District Court of Appeal apparently upheld -- are entitled to deference and cannot be set aside in this Section 2241 proceeding. The question whether there were alternatives to detention that would adequately serve the state's compelling interests was not addressed in state court and would properly be resolved in this court de novo. As it turns out, a ruling on that issue is not necessary -- the outcome in this Section 2241 proceeding would be the same either way. With respect to the unconstitutional procedures, the Judge holds that Ms. Knight is not entitled to relief on this basis in this Section2241 proceeding because any violation was cured before she filed the proceeding. To be sure, the state court ruled against her. So did the First District Court of Appeal when she sought review there. But due process means notice and an opportunity to be heard -- there is no guarantee of a favorable result. Ms. Knight says, in effect, that the court missed the issue, but missing the issue, without more, is not a due-process violation. Next, as to the availability of relief in this Section 2241 proceeding on Ms. Knight's individual claim, the Judge finds that Ms. Knight had been detained -- rightly or wrongly -- for more than a year. Release at that point would have posed a risk of nonappearance substantially greater than existed earlier. Had the Judge been called on to decide on Oct. 13, 2017 whether any alternative would adequately serve the state's compelling interests, he would have said no. He would have continued Ms. Knight's detention. Any constitutional violation had been cured or no longer had any effect when Ms. Knight filed the action. Under the Lyons principle, she was not entitled to relief. As to class certification, the Judge holds that Ms. Knight's individual claim is unfounded and her unique circumstances -- her agreement to enter a plea before filing the action, and the imposition of a substantial prison term soon after -- make her an inadequate class representative. And for these same reasons, her claim is not typical of the proposed class claims. Ms. Knight's individual claim became moot when she was sentenced to prison. The claim was unfounded, but not moot, when she filed the action. But as set out, a class will not be certified in the case. In the absence of class certification, the mootness of Ms. Knight's claim requires dismissal of the action. For these reasons, Judge Hinkle denied the Plaintiff's motion to certify a class. The Clerk must enter judgment stating, "The Plaintiff Brittany Knight's claims against the defendant Sheriff of Leon County, Florida are dismissed as moot." The Judge denied as moot all other pending motions. The Clerk must close the file. A full-text copy of the Court's March 29, 2019 Order is available at https://is.gd/jxriir from Leagle.com. BRITTANY KNIGHT, Petitioner, represented by JACQUELINE NICOLE AZIS, AMERICAN CIVIL LIBERTIES UNION OF FLORIDA, NANCY GBANA ABUDU -- nancy.abudu@splcenter.org -- ACLU FOUNDATION OF FLORIDA INC. & BENJAMIN JAMES STEVENSON -- bstevenson@aclufl.org -- ACLU FOUNDATION OF FLORIDA INC. SHERIFF FOR LEON COUNTY FLORIDA, Respondent, represented by MATTHEW JOSEPH CARSON -- mcarson@sniffenlaw.com -- SNIFFEN & SPELLMAN PA. ROCHE SURETY AND CASUALTY COMPANY INC, Amicus, represented by ADAM ROBERT ALAEE -- aalaee@foley.com -- FOLEY & LARDNER LLP. JONATHAN SJOSTROM & JACK CAMPBELL, Amicuss, represented by EDWARD M. WENGER, OFFICE OF THE ATTORNEY GENERAL, KAREN ANN BRODEEN, OFFICE OF THE ATTORNEY GENERAL, STEPHANIE ALLISON DANIEL, FLORIDA ATTORNEY GENERAL OFFICE & WILLIAM HENRY STAFFORD, III, STATE OF FLORIDA ATTORNEY GENERAL. LESAINT LOGISTICS: Worker Files Lawsuit Over Fingerprint Scans -------------------------------------------------------------- Cook County Record reports that a Romeoville-based trucking and warehousing company has been hit with a class action lawsuit under a state biometrics privacy law, accusing the company of violating employees' rights by compelling them to scan their fingerprints each time they punch in and out of a work shift. On March 15, Brandon Diller, individually and as representative of a class of similarly situated persons, filed a complaint in Cook County Circuit Court against Lesaint Logistics LLC. According to the complaint, Diller worked for LeSaint at its Bolingbrook facility from June 13-July 29, 2018. The plaintiff had to scan his fingerprint for timekeeping and payroll purposes each time he began and ended a work shift or took unpaid breaks. The complaint accuses LeSaint of scanning, retaining and storing Diller's and other workers' biometric information without their authorization, and without explaining in writing how the company would safeguard and ultimately destroy their records. The plaintiff is seeking damages of $1,000-$5,000 per violation, which can be interpreted to include each time he and other workers punched in or out on the company's biometric time clock. He is also seeking attorney fees and court costs. The plaintiff is represented by attorneys Phillip A. Bock, Tod A. Lewis, David M. Oppenheimer, Mara A. Baltabois of Bock, Hatch, Lewis and Oppenheim LLC in Chicago. Circuit Court of Cook County Case No. 2019-CH-03410 [GN] LINN STAR TRANSFER: Aguilar Labor Suit Removed to N.D. Cal. ----------------------------------------------------------- The case captioned Arturo Aguilar, an individual, on behalf of himself and others similarly situated and on behalf of the State of California, Plaintiff, v. Linn Star Transfer, Inc., Kevin Abbey and Does 1 through 50, inclusive, Defendants, Case No. RG19004033 (Cal. Super., January 25, 2019), was removed to the United States District Court for the Northern District of California on March 1, 2019, under Case No. 19-cv-01162. Plaintiff accuses Defendants of alleged wage and hour violations from failure to provide meal and rest periods, failure to pay hourly wages, failure to provide accurate written wage statements and failure to timely pay all final wages under the California Labor Code.[BN] Plaintiff is represented by: John P. Boggs, Esq. Roman Zhuk, Esq. FINE, BOGGS & PERKINS LLP 80 Stone Pine Road, Suite 210 Half Moon Bay, CA 94019 Telephone: (650) 712-8908 Facsimile: (650) 712-1712 Defendants are represented by: Mollie M. Burks, Esq. Sat Sang S. Khalsa, Esq. GORDON REES SCULLY MANSUKHANI, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 Telephone: (510) 463-8668 Facsimile: (415) 986-8054 Email: mburks@grsm.com skhalsa@grsm.com LM FUNDING: Settlement in Solaris Suit Wins Final Approval ---------------------------------------------------------- LM Funding America, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 16, 2019, for the fiscal year ended December 31, 2018, that the court in Solaris at Brickell Bay Condominium Association, Inc. v. LM Funding, LLC, entered an order granting Plaintiff's Motion for Final Approval of Class Action Settlement. The company was a defendant in an action entitled Solaris at Brickell Bay Condominium Association, Inc. v. LM Funding, LLC, which was brought before the Circuit Court of the Eleventh Judicial Circuit, Miami-Dade Civil Division on July 31, 2014. In this matter, which was initially preliminarily settled in August 2017, the plaintiff (an association under contract with the company) alleged claims such as a usurious loan transaction, state and federal civil Racketeer Influenced and Corrupt Organization Act claims, Florida Deceptive and Unfair Trade Practices Act ("FDUTPA") violations, and other related claims, and the plaintiff requested rescission of their agreement with the company, forfeiture of all amounts lent by us to the plaintiff, a declaratory judgment that we have violated FDUTPA, other damages for breach of contract and violations of FDUTPA, and attorneys' fees. On August 4, 2017, an order by the court was entered on Plaintiff's Motion for Preliminary Approval of Class Action Settlement Agreement. In the order, the motion of the Plaintiff, Solaris at Brickell Bay Condominium Association, Inc., individually and on behalf of the certified plaintiff class ("Plaintiffs"), for approval of the Class Action Settlement Agreement (the "Settlement Agreement") with Defendant LM Funding, LLC was granted. Despite the company's beliefs that it is not liable for the claims asserted and that the company have good defenses thereto, the company nevertheless agreed to enter into the Settlement Agreement in order to: (1) avoid any further expense, inconvenience, and distraction of burdensome and protracted litigation and its consequential negative financial effects to its operations; (2) obtain the releases, orders, and final judgment contemplated by the Settlement Agreement; and (3) put to rest and terminate with finality all claims that had been or could have been asserted against us by the Plaintiffs arising from the facts alleged in the lawsuit. Pursuant to the agreement subsequently reached between counsel, all required actions and deadlines set forth in the Settlement Agreement are currently stayed. On March 1, 2018 a continuation of the abatement was granted until April 2, 2018. As of December 31, 2017, the company had accrued costs of $505,000 as part of the Settlement Agreement. The settlement amount was contingent upon the company obtaining sufficient financing within the allotted time frame of the Settlement Agreement. On April 2, 2018, the Plaintiffs withdrew from the Settlement Agreement. On August 14, 2018, the parties to the Solaris class action litigation entered into a revised settlement in which the Plaintiffs amended their complaint (the Fourth Amended Complaint) to reflect no demand for damages and only a claim for declarative and injunctive relief and amended the class definition to reflect a requirement that class members must have active units still under contract with LMF under a "Traditional Model" waterfall in the Allocation of Collection Proceeds. This was submitted to the court who approved the amended Complaint and Class Action Settlement Agreement. On November 6, 2018, the court entered an order granting Plaintiff's Motion for Final Approval of Class Action Settlement. The New Settlement Agreement also reimbursed the Plaintiff's opposing counsel $99,000 plus an administrative fee. LM Funding said, "As such, we adjusted the class action accrual to $100,000 and recorded a $405,000 class action reversal to the statement of operations. The amount was paid during fiscal year 2018." LM Funding America, Inc., through its subsidiary, LM Funding, LLC, operates as a specialty finance company. It provides funding to nonprofit community associations (Associations) primarily located in the state of Florida, as well as in the states of Washington, Colorado, and Illinois. The company was founded in 2008 and is based in Tampa, Florida. LORAIN, OH: Lawsuit Over Water Rates Certified as Class Action -------------------------------------------------------------- The Morning Journal reports that a lawsuit over Lorain's water rates for out of city customers was certified March 26 as a class action suit. A news release from O'Toole McLaughlin Dooley Pecura, the firm representing the plaintiffs in the case, the certification came after Lorain County Common Pleas Court Judge Mark A. Betleski ruled against the city's motion to have the case thrown out. The release said the case arose from Lorain imposing "significant" surcharges and fees against out of city customers, specifically those in the hidden Valley subdivision in Amherst Township, in 2012. The city was shown to have "double-charged" the Hidden Valley residents for the cost of operating, maintaining and repairing sewer lines which their own records showed were in relatively good repair, the release said. The release said the city's motion was based on the belief it had an "unfettered right to charge any rates or fees to outside-city customers." The suit will enter the trial phase in the next few weeks, according to the release. City attorney Pat Riley declined to comment citing he has not received notification of the certification. [GN] MARLY BUILDING: Bar Suit Seeks Unpaid Overtime Wages, Damages ------------------------------------------------------------- Carlos Amay Bar, individually and on behalf of all others similarly situated, Plaintiffs, v. Marly Building Supply Corp., Kim Kum Ma and Tommie Sui, as individuals, Defendants, Case No. 19-cv-01187, (E.D. N.Y., February 28, 2018), seeks to recover damages for violations of New York State labor laws and the Fair Labor Standards Act, compensatory and liquidated damages, interest, attorneys' fees, costs and all other legal and equitable remedies. Bar worked as a construction worker and general laborer for Marly from in or around July 2002 until in or around November 2017. He claims to have worked in excess of 40 hours per day without overtime premium and failed to provide accurate wage statements. [BN] Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, PC 69-12 Austin Street Forest Hills, NY 11375 Telephone: (718) 263-9591 Fax: (718) 263-9598 Email: HFDalton6912@Gmail.com MASSACHUSETTS MUTUAL: Aronstein Appeals Case Ruling to 1st Cir. --------------------------------------------------------------- Plaintiff Jesse Aronstein filed an appeal from a Court ruling in the lawsuit titled Aronstein v. Mass. Mutual Life Ins. Co., et al., Case No. 3:15-cv-12864-MGM, in the U.S. District Court for the District Court of Massachusetts, Springfield. As previously reported in the Class Action Reporter, the lawsuit is an action for damages as a proximate result of the Defendant's alleged bait and switch scheme, specifically by advertising, marketing, and selling fixed annuities and receiving and retaining funds, on the basis that they had a Minimum Guaranteed Interest Rate, but then unilaterally reducing that rate below the guaranteed rate. The appellate case is captioned as Aronstein v. Mass. Mutual Life Ins. Co., et al., Case No. 19-8005, in the United States Court of Appeals for the First Circuit. The briefing schedule in the Appellate Case states that appearance form was due April 22, 2019.[BN] Plaintiff-Petitioner JESSE ARONSTEIN, individually and on behalf of all others similarly situated, is represented by: Kevin B. Love, Esq. CRIDEN & LOVE, P.A. 7301 SW 57th Ct Miami, FL 33143 Telephone: (305) 357-9000 E-mail: klove@cridenlove.com - and - Ian J. McLoughlin, Esq. Adam M. Stewart, Esq. SHAPIRO HABER & URMY LLP Seaport East 2 Seaport Ln Boston, MA 02210 Telephone: (617) 439-3939 E-mail: imcloughlin@shulaw.com ehaber@shulaw.com - and - Timothy J. O'Connor, Esq. THE LAW OFFICE OF TIMOTHY J. O'CONNOR 29 Wards Lane Albany, NY 12204 Telephone: (518) 426-7700 E-mail: tjo@tjolaw.com Defendants-Respondents MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY and C.M. LIFE INSURANCE COMPANY are represented by: Joel S. Feldman, Esq. Eric S. Mattson, Esq. Stephen W. McInerney, Esq. SIDLEY AUSTIN LLP 1 S Dearborn St., Suite 3200 Chicago, IL 60603-0000 Telephone: (312) 853-7000 E-mail: jfeldman@sidley.com emattson@sidley.com smcinerney@sidley.com - and - Jodi Kim Miller, Esq. John P. Pucci, Esq. BULKLEY RICHARDSON & GELINAS LLP 1500 Main St., Suite 2700 Springfield, MA 01115-5507 Telephone: (413) 272-6249 E-mail: jmiller@bulkley.com jpucci@bulkley.com MDL 2516: Calif. Appeals Ruling in Aggrenox Antitrust Litigation ---------------------------------------------------------------- The People of the state of California filed an appeal from the District Court's ruling on pending motions dated February 25, 2019, in the multidistrict litigation styled In Re: Aggrenox Antitrust Litigation, MDL No. 14-md-2516, in the U.S. District Court for the District of Connecticut (New Haven). As previously reported in the Class Action Reporter, the District Court issued an Order on July 19, 2018, granting Final Judgment and Order of Dismissal Approving Indirect Purchaser Class Settlement and Dismissing Indirect Purchaser Class Claims Against Boehringer and Teva. The Court certified a class for purposes of settlement (Indirect Purchaser Class): All persons or entities in the Commonwealth of Puerto Rico, Arizona, California, Colorado, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Tennessee, Utah, Vermont, West Virginia, and Wisconsin, who, in one of the listed states, indirectly purchased, paid and/or provided reimbursement for some or all of the purchase price for branded or generic Aggrenox, for consumption by themselves, their families, or their members, employees, insureds, participants, or beneficiaries, other than for resale, from November 30, 2009 through December 22, 2017. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court approves the Settlement in the amount of $50,229,193.00, and finds that the Settlement is, in all respects, fair, reasonable and adequate to Indirect Purchaser Class members. The Court approves the amount deposited by the Defendants into the Settlement Fund. The final net amount of the Settlement is $50,229,193.00, which is the Settlement Fund Amount of $54,000,000.00 minus the agreed-upon drawdown amount. Accordingly, the Settlement will be consummated in accordance with the terms and provisions of the Settlement Agreement. The appellate case is captioned as In Re: Aggrenox Antitrust Litigation, Case No. 19-754, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiffs-Appellees A.F. of L. - A.G.C. Buildings Trade Welfare Plan, on behalf of itself and all others similarly situated; International Union of Operating Engineers Local 132 Health and Welfare Fund, on its own behalf and on behalf of all others similarly situated; Plumbers & Pipefitters Local 178 Health & Welfare Trust Fund, on behalf of itself and all others similarly situated; United Food And Commercial Workers Local 1776 & Participating Employers Health And Welfare Fund, on its own behalf and on behalf of all others similarly situated; Man-U Service Contract Trust Fund, on behalf of itself and all others similarly situated; AGC-International Union of Operating Engineers Local 701 Health & Welfare Trust Fund; School Cafeteria Employees Local 634 Health and Welfare Fund, on behalf of itself and all others similarly situated; Afscme District Council 47 Health & Welfare Fund, on behalf of itself and all others similarly situated; Neca-Ibew Health & Welfare Fund, individually and on behalf of all others similarly situated; Twin City Iron Workers Health And Welfare Fund, on behalf of itself and all others similarly situated; Welfare Plan of the International Union of Operation Engineers Locals 137, 137A, 137B, 137C, 137R, on behalf of itself and all others similarly situated; International Union of Operating Engineers Local 49 Health and Welfare Fund; Pipefitters Union Local NO 537 Health & Welfare Fund, on behalf of itself and all others similarly situated; Electrical Workers' Insurance Fund; and Sergeants Benevolent Association Health and Welfare Fund are represented by: William H. Narwold, Esq. MOTLEY RICE LLC One Corporate Center 20 Church Street, 17th Floor Hartford, CT 06103 Telephone: (860) 882-1676 Facsimile: (860) 882-1682 E-mail: bnarwold@motleyrice.com Plaintiffs-Appellees A.F. of L. - A.G.C. Buildings Trade Welfare Plan, on behalf of itself and all others similarly situated; Painters District Council No. 30 Health and Welfare Fund, on behalf of itself and all others similarly situated; International Union of Operating Engineers Local 132 Health and Welfare Fund, on its own behalf and on behalf of all others similarly situated; Plumbers & Pipefitters Local 178 Health & Welfare Trust Fund, on behalf of itself and all others similarly situated; United Food And Commercial Workers Local 1776 & Participating Employers Health And Welfare Fund, on its own behalf and on behalf of all others similarly situated; Man-U Service Contract Trust Fund, on behalf of itself and all others similarly situated; AGC-International Union of Operating Engineers Local 701 Health & Welfare Trust Fund; School Cafeteria Employees Local 634 Health and Welfare Fund, on behalf of itself and all others similarly situated; Afscme District Council 47 Health & Welfare Fund, on behalf of itself and all others similarly situated; Neca-Ibew Health & Welfare Fund, individually and on behalf of all others similarly situated; Twin City Iron Workers Health And Welfare Fund, on behalf of itself and all others similarly situated; Welfare Plan of the International Union of Operation Engineers Locals 137, 137A, 137B, 137C, 137R, on behalf of itself and all others similarly situated; International Union of Operating Engineers Local 49 Health and Welfare Fund; Pipefitters Union Local NO 537 Health & Welfare Fund, on behalf of itself and all others similarly situated; Electrical Workers' Insurance Fund; and Sergeants Benevolent Association Health and Welfare Fund are represented by: Steve D. Shadowen, Esq. HILLIARD & SHADOWEN LLC 1135 West 6th Street Austin, TX 78703 Telephone: (717) 903-1177 E-mail: steve@hilliardshadowenlaw.com - and - Renae D. Steiner, Esq. HEINS MILLS & OLSON, P.L.C. 310 Clifton Avenue Minneapolis, MN 55403 Telephone: (612) 338-4605 E-mail: rsteiner@heinsmills.com Plaintiffs-Appellees Painters District Council No. 30 Health and Welfare Fund, on behalf of itself and all others similarly situated; International Union of Operating Engineers Local 132 Health and Welfare Fund, on its own behalf and on behalf of all others similarly situated; Plumbers & Pipefitters Local 178 Health & Welfare Trust Fund, on behalf of itself and all others similarly situated; Afscme District Council 47 Health & Welfare Fund, on behalf of itself and all others similarly situated; Afscme District Council 47 Health & Welfare Fund, on behalf of itself and all others similarly situated; Neca-Ibew Health & Welfare Fund, individually and on behalf of all others similarly situated; United Food And Commercial Workers Local 1776 & Participating Employers Health And Welfare Fund, on its own behalf and on behalf of all others similarly situated; Man-U Service Contract Trust Fund, on behalf of itself and all others similarly situated; AGC-International Union of Operating Engineers Local 701 Health & Welfare Trust Fund; School Cafeteria Employees Local 634 Health and Welfare Fund, on behalf of itself and all others similarly situated; Twin City Iron Workers Health And Welfare Fund, on behalf of itself and all others similarly situated; Welfare Plan of the International Union of Operation Engineers Locals 137, 137A, 137B, 137C, 137R, on behalf of itself and all others similarly situated; International Union of Operating Engineers Local 49 Health and Welfare Fund; Pipefitters Union Local NO 537 Health & Welfare Fund, on behalf of itself and all others similarly situated; Electrical Workers' Insurance Fund; and Sergeants Benevolent Association Health and Welfare Fund are represented by: Lee Albert, Esq. GLANCY BINKOW & GOLDBERG LLP 122 East 42nd Street New York, NY 10168 Telephone: (212) 682-5340 E-mail: lalbert@glancylaw.com - and - Daniel C. Girard, Esq. GIRARD SHARP LLP 601 California Street San Francisco, CA 94108 Telephone: (415) 981-4800 E-mail: dcg@girardgibbs.com - and - Marvin Alan Miller, Esq. MILLER LAW LLC 115 South LaSalle Street Chicago, IL 60603 Telephone: (312) 332-3400 E-mail: mmiller@MillerLawLLC.com Plaintiffs-Appellees Afscme District Council 47 Health & Welfare Fund, on behalf of itself and all others similarly situated; Neca-Ibew Health & Welfare Fund, individually and on behalf of all others similarly situated; Twin City Iron Workers Health And Welfare Fund, on behalf of itself and all others similarly situated; Welfare Plan of the International Union of Operation Engineers Locals 137, 137A, 137B, 137C, 137R, on behalf of itself and all others similarly situated; International Union of Operating Engineers Local 49 Health and Welfare Fund; Pipefitters Union Local NO 537 Health & Welfare Fund, on behalf of itself and all others similarly situated; Electrical Workers' Insurance Fund; and Sergeants Benevolent Association Health and Welfare Fund are represented by: Stephen E. Connolly, Esq. CONNOLLY WELLS & GRAY, LLP 2200 Renaissance Boulevard King of Prussia, PA 19406 Telephone: (610) 822-3700 E-mail: sconnolly@cwg-law.com - and - Brian Oliver O'Mara, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway San Diego, CA 92101 Telephone: (619) 231-1058 E-mail: bomara@rgrdlaw.com Plaintiffs-Appellees Twin City Iron Workers Health And Welfare Fund, on behalf of itself and all others similarly situated; Welfare Plan of the International Union of Operation Engineers Locals 137, 137A, 137B, 137C, 137R, on behalf of itself and all others similarly situated; International Union of Operating Engineers Local 49 Health and Welfare Fund; Pipefitters Union Local NO 537 Health & Welfare Fund, on behalf of itself and all others similarly situated; Electrical Workers' Insurance Fund; and Sergeants Benevolent Association Health and Welfare Fund are represented by: John A. Macoretta, Esq. SPECTOR ROSEMAN KODROFF & WILLIS, P.C. 1818 Market Street Philadelphia, PA 19103 Telephone: (215) 496-0300 E-mail: jmacoretta@srkw-law.com - and - Brian Oliver O'Mara, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway San Diego, CA 92101 Telephone: (619) 231-1058 E-mail: bomara@rgrdlaw.com Plaintiffs-Appellees Welfare Plan of the International Union of Operation Engineers Locals 137, 137A, 137B, 137C, 137R, on behalf of itself and all others similarly situated; International Union of Operating Engineers Local 49 Health and Welfare Fund; Pipefitters Union Local NO 537 Health & Welfare Fund, on behalf of itself and all others similarly situated; Electrical Workers' Insurance Fund; and Sergeants Benevolent Association Health and Welfare Fund are represented by: Heidi M. Drewes-Silton, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South Minneapolis, MN 55401 Telephone: (612) 339-6900 E-mail: hmsilton@locklaw.com - and - Sharon K. Robertson, Esq. COHEN MILSTEIN SELLERS & TOLL, PLLC 88 Pine Street New York, NY 10005 Telephone: (212) 838-7797 E-mail: srobertson@cohenmilstein.com Plaintiffs-Appellees Pipefitters Union Local NO 537 Health & Welfare Fund, on behalf of itself and all others similarly situated; Electrical Workers' Insurance Fund; and Sergeants Benevolent Association Health and Welfare Fund are represented by: Robin A. Van der Meulen, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Telephone: (212) 907-0700 E-mail: rvandermeulen@labaton.com Plaintiffs-Appellees Electrical Workers' Insurance Fund and Sergeants Benevolent Association Health and Welfare Fund are represented by: Robert G. Eisler, Esq. GRANT & EISENHOFER P.A. 485 Lexington Avenue New York, NY 10017 Telephone: (646) 722-8500 E-mail: reisler@gelaw.com Appellant People of the State of California is represented by: John Alden Meade, Esq. MEADE YOUNG LLC 909 Poydras Street New Orleans, LA 70112 Telephone: (504) 799-3102 E-mail: jameade@meadelawllc.com Defendants-Appellees Barr Pharmaceuticals Inc., a Delaware Corporation, now known as Barr Pharmaceuticals, LLC; and Boehringer Ingelheim International GmbH, a German Limited Liability Corporation, are represented by: Brian Timothy Burgess, Esq. GOODWIN PROCTER LLP 901 New York Avenue, NW Washington, DC 20001 Telephone: (202) 346-4215 E-mail: bburgess@goodwinlaw.com - and - Timothy Gerard Ronan, Esq. PULLMAN & COMLEY, LLP 107 Elm Street Stamford, CT 06902 Telephone: (203) 674-7933 E-mail: tronan@pullcom.com Defendant-Appellee Barr Pharmaceuticals Inc., a Delaware Corporation, now known as Barr Pharmaceuticals, LLC, is represented by: Robert D. Carroll, Esq. Gerard Justin Cedrone, Esq. Christopher Holding, Esq. GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Telephone: (617) 570-1000 E-mail: rcarroll@goodwinlaw.com gcedrone@goodwinlaw.com cholding@goodwinlaw.com Defendants-Appellees Boehringer Ingelheim International GmbH, a German Limited Liability Corporation; Boehringer Ingelheim Pharmaceuticals Inc., a Delaware Corporation; Duramed Pharmaceuticals Inc., a Delaware Corporation, now known as Teva Women's Health, Inc.; Boehringer Ingelheim Pharma GMBH & Co. KG; Duramed Pharmaceuticals Sales Corp., a Delaware Corporation; Teva Women's Health, Inc., FKA Duramed Pharmaceuticals Inc.; Teva Pharmaceuticals USA, Inc.; and Barr Laboratories Inc., a Delaware Corporation, are represented by: Brian Timothy Burgess, Esq. GOODWIN PROCTER LLP 901 New York Avenue, NW Washington, DC 20001 Telephone: (202) 346-4215 E-mail: bburgess@goodwinlaw.com - and - Peter James Carney, Esq. WHITE & CASE LLP 701 13th Street, NW Washington, DC 20005 Telephone: (202) 626-3662 E-mail: pcarney@whitecase.com MDL 2741: 12 Suits Transferred to N.D. Cal. for Roundup Litigation ------------------------------------------------------------------ Twelve lawsuits were transferred on March 26, 2019, or March 28, 2019, to the U.S. District Court for the Northern District of California (San Francisco): (1) Estate of Mary Hazel v. Monsanto Company, Case No. 4:19-cv-00018, from the U.S. District Court for the Eastern District of Missouri. New Case No. 3:19-cv-01560-VC; (2) Elmer v. Monsanto Company, Case No. 4:19-cv-00260, from the U.S. District Court for the Eastern District of Missouri. New Case No. 3:19-cv-01569-VC; (3) Drew, et al. v. Monsanto Company, Case No. 4:19-cv-00251, from the U.S. District Court for the Eastern District of Missouri. New Case No. 3:19-cv-01567-VC; (4) Crisovan v. Monsanto Company, Case No. 0:19-cv-60594-KMM, from the U.S. District Court for the Southern District of Florida. New Case No. 3:19-cv-01554-VC; (5) Carriger v. Monsanto Company, Case No. 4:19-cv-00254, from the U.S. District Court for the Eastern District of Missouri. New Case No. 3:19-cv-01568-VC; (6) Florquist v. Monsanto Company, Case No. 1:19-cv-00030, from the U.S. District Court for the District Court of Wyoming. New Case No. 3:19-cv-01557-VC; (7) Kempf, et al. v. Monsanto Company, Case No. 4:19-cv-00271, from the U.S. District Court for the Eastern District of Missouri. New Case No. 3:19-cv-01580-VC; (8) Jett, et al. v. Monsanto Company, Case No. 4:19-cv-00268, from the U.S. District Court for the Eastern District of Missouri. New Case No. 3:19-cv-01579-VC; (9) Herr v. Monsanto Company, Case No. 4:19-cv-00056, from the U.S. District Court for the Eastern District of Missouri. New Case No. 3:19-cv-01563-VC; (10) Gunn, et al. v. Monsanto Company, Case No. 4:19-cv-00267, from the U.S. District Court for the Eastern District of Missouri. New Case No. 3:19-cv-01578-VC; (11) Garner v. Monsanto Company, Case No. 4:19-cv-00051, from the U.S. District Court for the Eastern District of Missouri. New Case No. 3:19-cv-01562-VC; and (12) Ledvina v. Monsanto Company, Case No. 4:19-cv-00048, from the U.S. District Court for the Eastern District of Missouri. New Case No. 3:19-cv-01561-VC. The lawsuits are consolidated in the multidistrict litigation titled In re: Roundup Products Liability Litigation, MDL No. 3:16-md-02741-VC. The lawsuits arise from the Plaintiffs' alleged Roundup(R)-related injuries. The Plaintiffs seek damages for the injuries they allegedly suffered as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup(R), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup(R) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. Monsanto Company is a Delaware corporation with a principal place of business in St. Louis, Missouri. Monsanto is a multinational agricultural biotechnology corporation and the world's leading producer of glyphosate.[BN] Plaintiffs SIDNEY C. DREW JR. and NARUMOL DREW; RICHARD A. CARRIGER; JASON T. ELMER; GARY C. KEMPF and MARY C. KEMPF; TOMMY J. GUNN and SHARI L. GUNN; and ROBERT F. JETT and BECKY R. JETT are represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com Plaintiffs ESTATE OF Mary Hazel, by and through her representative Rhonda Romines, on behalf of all legal heirs of Mary Hazel; JAMES GARNER; MICHAEL HERR; and RONALD LEDVINA are represented by: Kirk J. Goza, Esq. GOZA & HONNOLD LLC 9500 Nall Ave., Suite 400 Overland Park, KS 66207 Telephone: (913) 451-3433 Facsimile: (913) 839-0567 E-mail: kgoza@gohonlaw.com Plaintiff JACK FLORQUIST is represented by: Jason Edward Ochs, Esq. OCHS LAW FIRM, PC 690 US 89, Suite 206 PO Box 10944 Jackson, WY 83001 Telephone: (307) 739-3959 Facsimile: (307) 235-6910 E-mail: Jason@ochslawfirm.com Plaintiff L.B., a minor, by his parent and natural guardian, GRATZIELA CRISOVAN, is represented by: Laura V. Yaeger, Esq. YAEGER LAW, PLLC 834 3rd Avenue South Tierre Verde, FL 33715 Telephone: (727) 202-5015 Facsimile: (727) 217-5823 E-mail: laura@yourlegalcounsel.net - and - Jennifer A. Moore, Esq. Ashton Rose Smith, Esq. MOORE LAW GROUP, PLLC 1473 S. Fourth Street Louisville, KY 40208 Telephone: (502) 717-4080 Facsimile: (502) 717-4086 E-mail: jennifer@moorelawgroup.com ashton@moorelawgroup.com MDL 2895: KPH Seeks Transfer of Four Antitrust Cases to E.D. Pa. ---------------------------------------------------------------- A motion seeking to transfer Sensipar-related class actions has been filed by KPH Healthcare Services, Inc., in the case styled as, IN RE: SENSIPAR ANTITRUST LITIGATION, MDL No. 2895 (E.D. Pa.). Plaintiff KPH Healthcare Services, Inc. moves the Judicial Panel on Multidistrict Litigation for the transfer and coordination or consolidation of four-related antitrust class actions to the Eastern District of Pennsylvania. The cases allege violations of Section 1 of the Sherman Act. Sensipar is a calcium-sensing receptor agonist indicated for secondary hyperparathyroidism in adult patients with chronic kidney disease on dialysis. The related actions, which assert antitrust claims under the Sherman Act, allege that the drug manufacturer defendants conspired to delay the entry of lower-priced generic Sensipar. KPH says there is substantial overlap among the drug manufacturer defendants in these antitrust class actions. The related actions also involve one or more common questions of fact. As a consequence, the transfer and coordination or consolidation of the related actions will prevent duplication of discovery, eliminate the possibility of conflicting pretrial rulings, and conserve judicial resources. KPH contends that the United States District Court for the Eastern District of Pennsylvania is the appropriate forum for coordination or consolidation of antitrust actions concerning Sensipar. The Eastern District of Pennsylvania is well-suited to manage this litigation because it has the experience, resources, and the personnel necessary for the management of a multidistrict litigation proceeding.[BN] The Plaintiff is represented by: Dianne M. Nast, Esq. Erin C. Burns, Esq. Michael Tarringer, Esq. NASTLAW LLC 1101 Market Street, Suite 2801 Philadelphia, PA 19107 Telephone: (215) 923-9300 Facsimile: (215) 923-9302 E-mail: dnast@nastlaw.com eburns@nastlaw.com mtarringer@nastlaw.com - and - Michael L. Roberts, Esq. Debra G. Josephson, Esq. Stephanie E. Smith, Esq. ROBERTS LAW FIRM, P.A. 20 Rahling Circle Mailing Address: P.O. Box 241790 Little Rock, AR 72223 Telephone: (501) 821-5575 Facsimile: (501) 821-4474 E-mail: mikeroberts@robertslawfirm.us debrajosephson@robertslawfirm.us Stephaniesmith@robertslawfirm.us MHP PHARMACY: Frank Hits Misclassification, Claims Overtime Pay --------------------------------------------------------------- Demetrius Frank, individually and on behalf of herself and others similarly situated, Plaintiff, v. MHP Pharmacy, LLC, Defendant, Case No. 19-cv-10617, (E.D. Mich., March 1, 2019), seeks recover unpaid back wages, liquidated damages, and obtain declaratory relief, reasonable attorneys' fees and costs pursuant to the Fair Labor Standards Act. MHP offers home delivery of prescription medication where Frank worked as a as a non-exempt delivery driver from January 2018 to July 2018. He was classified as an independent contractor and compensated on a per-job basis and denied overtime for hours worked in excess of forty hours in certain weeks throughout the duration of his employment, notes the complaint.[BN] Plaintiff is represented by: Michael N. Hanna, Esq. Warren D. Astbury, Esq. MORGAN & MORGAN, P.A. 2000 Town Center, Suite 1900 Southfield, MI 48075 Tel: (313) 251-1399 Fax: (313) 739-1975 Email: mhanna@forthepeople.com wastbury@forthepeople.com MICHAEL P. MORTON: Denial of Ortez Class Certification Recommended ------------------------------------------------------------------ In the case, HERMAN ORTEZ, Plaintiff, v. MICHAEL P. MORTON, P.A., Defendant, Civil Action No. 18-561-MN-CJB (D. Del.), Magistrate Judge Christopher J. Burke of the U.S. District Court for the District of Delaware recommended the denial of the Plaintiff's Motion for Class Certification and Appointment of Class Counsel. In the action he filed against Michael P. Morton, P.A., Plaintiff Ortez alleges violations of the Fair Debt Collection Practices Act ("FDCPA"). Ortez is a resident of New Castle County, Delaware, who formerly owned property at Le Pare Condominiums. The Defendant is a law firm based in Greenville, Delaware, which represents the Association of Unit Owners of Le Pare Condominiums. On Feb. 21, 2018, the Defendant sent a letter to the Plaintiff explaining that there is a substantial and critical life-safety infrastructure problem at Le Pare and that in order to address that issue, an assessment on all Unit Owners was made last summer to bring in dollars to begin the first phase of the professional work that must be done. The letter states that although 58% of the Unit Owners had by then paid the full assessment, the Plaintiff had not done so, nor had the Plaintiff agreed to a payment plan with the Association. The letter goes on to explain that due to tge Plaintiff's non-payment, the Association referred collection of his assessment to the Defendant. In the letter, the Defendant encourages tge Plaintiff to either pay the assessment or arrange for a payment plan within the next 10 days. However, the Defendant explains that if the Association did not hear from him within 10 days of the date of the letter, then the Association would be left with no choice but to move forward in the manner that is provided for by the Delaware Uniform Common Interest Ownership Act, the Le Pare Condominium Association Declaration and the Code of Regulation. In all, the Defendant issued a total of 17 letters that were substantially similar to the letter described. A total of 18 individuals residing in Delaware were mailed one of those 17 substantially similar letters; all of these letters were mailed to an address at Le Pare. Another such letter was mailed to an address in Delaware, but it was returned as undeliverable; the Defendant subsequently re-mailed that letter to an address in Texas. The Plaintiff filed his Complaint in the instant case on April 13, 2018. The Complaint, which is styled as a class action complaint against the Defendant, contains two Counts alleging that Defendant violated certain provisions of the FDCPA. More particularly, the Plaintiff asserts that the Defendant violated the statute because the Feb. 21 letter: (1) does not set forth the amount of the Debt owed by the Plaintiff, allegedly in violation of 15 U.S.C. Section 1692g(a)(1); (2) does not set forth a statement that, upon the consumer's written request within a 30-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor, allegedly in violation of 15 U.S.C. Section 1692g(a)(5); and (3) includes a demand for payment within 10 days that, when read in conjunction with other portions of the letter, contradicts the FDCPA's validation notice," in violation of 15 U.S.C. Section 1692g(b). In the Complaint, the Plaintiff defined the putative class, pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3), as all persons (a) with a Delaware address, (b) to whom Michael P. Morton, P.A., (c) within one year before the date of this complaint, (d) in connection with the collection of a consumer debt, (e) mailed an initial debt collection communication not returned to Michael P. Morton, P.A. as undeliverable (f) that (1) did not state the amount of the debt, or (2) advised the consumer that he should within 10 days from the date of the letter, either pay the now overdue assessment, fees and penalties in full, or contact the creditor to discuss how the consumer could arrange for a payment plan that will postpone collection actions by Michael P. Morton, P.A., or (3) did not state that upon the consumer's written request within the 30-day period, Michael P. Morton, P.A. would provide the consumer with the name and address of the original creditor, if different from the current creditor. Then, in his opening brief regarding the Motion, the Plaintiff sought to modify that proposed class definition slightly, to now include al persons with an address in the United States to whom Michael P. Morton, P.A. mailed an initial communication that had the characteristics described in the referenced portion of the Complaint. Thus, in light of the way the class is now defined by the Plaintiff and in light of the facts set out in Section I.A above, 19 persons (including the Plaintiff) could possibly be a part of that class. The Plaintiff filed the instant Motion on Aug. 31, 2018, and the Motion was referred to the Court by District Judge Maryellen Noreika on Sept. 7, 2018. The briefing on the Motion was completed on Oct. 4, 2018. The case is currently stayed pending the resolution of the Motion. The Defendant's only challenge to the Plaintiff's showing regarding class certification relates to one of the four factors set out in Rule 23(a): the numerosity requirement. The Defendant argues that the Plaintiff has failed to satisfy that requirement, and that this is fatal to the Plaintiff's request for class certification. Magistrate Judge Burke recommended that the Plaintiff's Motion be denied. He holds that the factors relevant to the numerosity requirement are mixed. The two factors that are of "primary importance" are split, with one (judicial economy) favoring joinder and the other (the claimants' ability and motivation to litigate as joined Plaintiff's) favoring class certification. As for the other factors, two favor joinder (the ability to identify future claimants and whether the claims are for injunctive relief or for damages), one favors class certification, though only slightly (the geographic dispersion of class members) and one is neutral (the financial resources of class members). This outcome is not necessarily surprising, considering the facts of the case. It is a case that, on the one hand, involves the FDCPA, a statute that typically lends itself to class action suits. And yet on the other hand, it is a manageable case involving a limited number of potential class members (who are largely concentrated in Delaware, due to the fact that the dispute originated over an assessment at one Delaware condominium). In the end, the he concludes that the Plaintiff has not met his burden to show that the evidence weighs in favor of class certification. The relevant factors seem more heavily weighted toward joinder; at best for the Plaintiff, the evidence on each side balances out. And in light of that, he returns to the Third Circuit's guidance: that classes of 20 or fewer are usually insufficiently numerous. That is the case here, as the Court will be well able to manage the litigation -- one consisting of a limited, known number of Plaintiff's and narrow legal and factual questions at issue -- without certifying a class. The Report and Recommendation is filed pursuant to 28 U.S.C. Section 636(b)(1)(B), Fed. R. Civ. P. 72(b)(1), and D. Del. LR 72.1. The parties may serve and file specific written objections within 14 days after being served with a copy of the Report and Recommendation. The failure of a party to object to legal conclusions may result in the loss of the right to de novo review in the district court. The parties are directed to the Court's Standing Order for Objections Filed Under Fed. R. Civ. P. 72, dated Oct. 9, 2013, a copy of which is available on the District Court's website, located at http://www.ded.uscourts.gov. A full-text copy of the Court's March 29, 2019 Report and Recommendation is available at https://is.gd/xqXwrq from Leagle.com. Herman Ortez, on behalf of himself and others similarly situated, Plaintiff, represented by Vivian A. Houghton -- vivianhoughton@comcast.net -- Vivian A. Houghton, Esq. & James L. Davidson -- jdavidson@gdrlawfirm.com -- Greenwald Davidson Radbil PLLC, pro hac vice. Michael P. Morton, P.A., Defendant, represented by Artemio C. Aranilla, II -- acaranilla@mdwcg.com -- Marshall, Dennehey, Warner, Coleman & Goggin & Andrew M. Schwartz -- amschwartz@mdwcg.com -- Marshall, Dennehey, Warner, Coleman & Goggin, pro hac vice. MONTAIRE FARMS: Plaintiffs Will Have Voice in DNREC Settlement -------------------------------------------------------------- Insurancenews.net reports that plaintiffs in a class action lawsuit against Mountaire Farms will have a voice in any agreement between the poultry company and the state of Delaware. A district court judge granted a "motion to intervene" filed by the nearly 700 people suing Mountaire after the company's wastewater upset in 2017. The motion came after the Delaware Department of Natural Resources and Environmental Control and Mountaire entered a consent decree, much like a settlement, in June. Now, those lawyers' clients will be able to shape that settlement. There was no comment on March 27 from any of the parties involved. [GN] MORAN FOODS: Brown Hits Biometrics Data Sharing ----------------------------------------------- Andre Brown, individually and on behalf of all others similarly situated, Plaintiffs, v. Moran Foods, LLC, Defendant, Case No. 2019CH02576 (Ill. Cir., February 27, 2019), seeks an injunction requiring Defendants to cease all unlawful activity related to the capture, collection, storage and use of biometrics; and statutory damages together with costs and reasonable attorneys' fees for violation of the Illinois Biometric Information Privacy Act. Defendant Moran operates the discount grocery chain "Save-a-Lot" with over 1,300 stores in 36 states, including throughout Chicago, Illinois. Its employees are required to scan their fingerprint in its biometric time tracking system as a means of authentication, instead of using only key fobs or other identification cards. Brown alleges that Moran improperly disclosed employees' biometrics data without their informed consent. [BN] Plaintiff is represented by: Eli Wade-Scott, Esq. Benjamin H. Richman, Esq. EDELSON PC 350 N. LaSalle, 13th Floor Chicago, IL 60654 Tel: (312) 589-6370 Email: brichman@edelson.com ewadescott@edelson.com MOUNT ZION: Castanon Suit to Recover Unpaid Regular, Overtime Wages ------------------------------------------------------------------- Tamara Castanon, and other similarly-situated individuals, Plaintiff, v. Mount Zion Holdings, Inc., Isabella Montealegre and Peter Montealegre, Defendants, Case No. 19-cv-20804, (S.D. Fla., February 28, 2019), seeks to recover regular wages, overtime compensation, retaliatory damages, liquidated damages, costs and reasonable attorney's fees under the provisions of the Fair Labor Standards Act. Defendants operate a dry-cleaning establishment which provides laundry services to commercial accounts where Plaintiff worked as a non-exempt full-time laundry attendant, from approximately November 1, 2017 to approximately October 29, 2018. She claims to have worked 40 hours weekly and was not paid for overtime hours at the rate of time and one-half her regular rate. [BN] Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com NCAA: Flasher Seeks Damages Over Injuries Sustained as an Athlete ----------------------------------------------------------------- Timothy Flasher, individually and on behalf of all others similarly situated, Plaintiff, v. National Collegiate Athletic Association (NCAA), Defendants, Case No. 19-cv-00896 (S.D. Ind., March 1, 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. Flasher played football at Florida State University from 1981 to 1986. He suffered from numerous concussions, as well as countless sub-concussive hits as part of routine practice and gameplay. Akinbiyi now suffers from headaches, dizziness, memory loss, loss of impulse control, loss of concentration, depression, suicidal thoughts, fatigue, anxiety, sleeping difficulties, irritability, numbness and tingling and cognitive disorder. 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. Flasher 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.[BN] 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: 713.554.9099 Fax: 713.554.9098 Email: efile@raiznerlaw.com NCAA: Mum About Football Brain Hazard, Akinbiyi Suit Asserts ------------------------------------------------------------ Kevin Akinbiyi, individually and on behalf of all others similarly situated, Plaintiff, v. National Collegiate Athletic Association (NCAA), Defendant, Case No. 19-cv-00897 (S.D. Ind., March 1, 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. Kevin Akinbiyi played football at Saint Peter's University from 2001 to 2003. He suffered from numerous concussions, as well as countless sub-concussive hits as part of routine practice and gameplay. Akinbiyi now suffers from motor impairment, loss of impulse control, loss of inhibition, short-term memory loss and speech and language impairment. 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. Akinbiyi 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.[BN] 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: 713.554.9099 Fax: 713.554.9098 Email: efile@raiznerlaw.com NIO INC: Faces Class Action Over 2018 IPO ----------------------------------------- Nickeesha Swaby, writing for Courthouse News Service, reported that Chinese electric vehicle manufacturer NIO faces a class action alleging the company misled investors about a new manufacturing facility during its billion dollar 2018 initial public offering. Filed in New York Supreme Court by investor Sumit Agarwal, the complaint names NIO Inc., CEO Bin Li, and the company's other senior officers as defendants. The suit also names numerous underwriters including Morgan Stanley, Goldman Sachs, and Merrill Lynch who collectively earned more than $40 million in fees since the IPO. According to the lawsuit, NIO sold 160 million shares at $6.26 per share in September 2018. Shareholders claim the company filed an incomplete registration statement with the Securities Exchange Commission, deemed effective by the SEC, the day prior. The lawsuit says NIO executives, through the SEC statements, led investors to believe the company planned to build its own manufacturing facility in Shanghai, to be completed by 2020, boasting it would expand manufacturing capability for one of its current vehicles and future models. However, NIO instead planned on keeping a "little-known Chinese state-owned auto manufacturer, Jianghuai Automobile Group Co. Ltd. or JAC Auto, to manufacture its electric vehicles." The suit also alleges that NIO failed to tell investors that the Chinese government's decision to reduce subsidies to purchasers of electric vehicles would affect company's sales. On March 5, 2019, NIO publicly announced the termination of its agreement with the Shanghai government to build the facility to continue to rely on JAC Auto, and that delivery of its vehicles fell from over 3,000 in December 2018 to 1,805 in February 2019, blaming the slowdown on the government subsidy reduction. Following the announcement, NIO shares, which traded above $8 in early March, fell over 37 percent to close at $6.39 per share on March 12, 2019. The stock has since fallen further, closing just below $5 a share on March 26. Investors are represented by Phillip Kim and Laurence M. Rosen of the Rosen Law Firm in New York. [GN] NISSAN NORTH AMERICA: Dodson Says Vehicle Seat Sensor Defective --------------------------------------------------------------- Jeffrey W. Dodson, individually and on behalf of all others similarly situated, Plaintiffs, v. Nissan North America, Inc., Defendant, Case No. 19-cv-04043 (C.D. Ill., March 2, 2019), seeks actual damages, punitive damages, injunctive relief, costs and attorneys' fees for breach of written and implied warranty pursuant to the Magnuson-Moss Warranty Act, the Illinois Consumer Fraud and Deceptive Business Practices Act. Dodson purchased the 2015 Nissan Altima and claims that its "occupant classification system" software may incorrectly classify the front passenger seat as empty despite being occupied, causing the passenger airbag not to deploy as designed in a crash, increasing the risk of injury to the front passenger seat occupant, notes the complaint. [BN] Plaintiff is represented by: David B. Levin, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 111 West Jackson Blvd., Suite 1700 Chicago, IL 60604 Phone: (312) 212-4355 Fax: (866) 633-0228 Email: dlevin@toddflaw.com NPS PROPERTY: Cohen Milstein Files Housing Discrimination Case -------------------------------------------------------------- Suffolk County residents, together with fair housing and disability rights organizations, filed a federal class action lawsuit on March 22 accusing a prominent Long Island-area property manager of rampant housing discrimination. The suit, building on individual claims brought forth in recent months, alleges that NPS Property Corporation engaged in a pattern of intentional discrimination against prospective renters with disabilities, those with public sources of income, as well as African Americans. In particular, the amended complaint alleges the discriminatory practices targeting applicants with disabilities and those with public sources of income were more widespread than previously known, including policies designed to discourage individuals with disabilities and those who use housing subsidies from applying to live at NPS's properties. The plaintiffs in the suit are represented by Joseph M. Sellers and Brian Corman of Cohen Milstein Sellers & Toll PLLC. "NPS's actions constitute a blatant act of targeted discrimination designed to deny people with disabilities and other vulnerable communities one of their fundamental rights – fair access to housing," said Brian Corman of Cohen Milstein Sellers & Toll PLLC and a lead counsel for the plaintiffs. "Working together with our plaintiffs, we have uncovered a culture of discrimination and prejudice not simply limited to a few individuals, but rather one that permeates throughout the company. We look forward to securing justice for victims of NPS's behavior and fighting to ensure that its discriminatory policies come to an end." "As a result of NPS's discrimination, I was forced to move to a new apartment far from where I receive medical treatment, jeopardizing my ability to get transportation," said Lori Gerardi, a plaintiff in the suit. "No one should be denied a home based on their health status, race or use of public income, and we must hold companies who violate these rights accountable." NPS Property Corporation is a New York-based property management company that owns or operates more than half a dozen apartment buildings and residential complexes in Suffolk County, including Holiday Square, Northwood Village, Brightwaters Garden, Lakeside Garden Apartments, East Newbrook Gardens, South Shore Gardens, Normandy Gardens and Monroe Gardens. The lawsuit, filed by two Suffolk County residents, as well as Long Island Housing Services (LIHS) and Suffolk Independent Living Organization (SILO), alleges that NPS has engaged in a pattern of egregious and intentional discrimination against prospective renters on the basis of disability, source of income and race. According to the complaint, Doreen Kernozek, a Suffolk County resident and a named plaintiff in the suit, inquired in November 2016 about an apartment at the NPS-owned Holiday Square complex. Kernozek suffers from a number of debilitating health issues and participates in the Nursing Home Transition and Diversion (NHTD) Medicaid Waiver, a housing subsidy program. The lawsuit alleges that while initially receptive to Kernozek's application, NPS staff reversed course upon learning of her health status and access to subsidies, asserting she could not be approved for the apartment. According to the suit, NPS has argued that Kernozek would not meet the unit's income threshold for renting an apartment at Holiday Square, despite the fact that Kernozek's income, derived from Social Security, far exceeded the amount she was required to pay towards rent under the NHTD subsidy. Furthermore, over the course of their conversation, the complaint asserts that NPS staff used derogatory language about individuals with disabilities, telling Kernozek that these residents "bring their own set of problems." The amended complaint similarly outlines the experiences of Lori Gerardi, another named plaintiff who attempted to apply for an apartment at the NPS-owned South Shore Gardens complex. According to the lawsuit, Gerardi, who has been approved for a Mainstream Program housing subsidy in light of her medical conditions, submitted an application noting her participation in the subsidy program. Despite earning an income that was over three times the portion of the rent that the subsidy required her to pay, the complaint alleges NPS staff told Gerardi that the complex had "reached its quota" for individuals using such subsidies. In both the case of Ms. Gerardi and Ms. Kerzonek, the suit alleges the company's application stated it could reject any candidate whose weekly income did not equal the monthly rent for an apartment, effectively discouraging anyone using a housing subsidy from applying for an NPS apartment. According to the lawsuit, these experiences echo findings by LIHS, a fair housing advocacy organization, and SILO, which administers state-approved grants to improve housing access for individuals with disabilities. The complaint alleges these organizations uncovered a wide-reaching pattern of intentional discrimination at NPS-owned properties. The complaint states that on multiple occasions, SILO and LIHS staff were informed by staff at NPS's Holiday Square complex that it had "reached its quota" for admitting tenants who rely on public assistance related to disabilities. Furthermore, according to the amended complaint, LIHS's investigation into NPS's rental policies found that White applicants at the company's Northwood Village complex were told about upcoming availabilities and given contact information for property representatives, while Black applicants were routinely informed that no units were available and were directed to a non-functional phone number for further inquiries. The federal class action lawsuit filed today in the Eastern District of New York alleges that NPS's actions constitute violations of the federal Fair Housing Act and the New York State Human Rights Law, both of which bar housing discrimination on the basis of disability and race. Furthermore, the suit accuses NPS of violating the Suffolk County Human Rights Law, which forbids discriminatory housing practices on the basis of race, disability or lawful source of income, including income through Social Security and the use of housing subsidy programs. The suit urges the Court to prohibit NPS from continuing to engage in these discriminatory practices, as well as mandate that NPS make all necessary changes to its policies to conform with federal, state and local housing laws. It also seeks punitive damages and compensatory relief for plaintiffs harmed by NPS's actions, as well as other relief as deemed proper by the Court. If you believe you have been turned away from an NPS property because of a disability or use of housing subsidies, please contact LIHS at 631.567.5111 ext. 312, or email Info@LIFairHousing.org. About Cohen Milstein Cohen Milstein Sellers & Toll PLLC is recognized as one of the premier law firms in the country handling major, complex plaintiff-side litigation. With more than 90 attorneys, Cohen Milstein has offices in Washington, D.C., Chicago, Ill., New York, N.Y., Palm Beach Gardens, Fla., Philadelphia, Pa. and Raleigh, N.C. For additional information, visit www.cohenmilstein.com or call 202.408.4600. About Suffolk Independent Living Organization Suffolk Independent Living Organization (SILO) is a non-profit disability rights organization serving Suffolk County, New York and is organized under the laws of New York. SILO's mission is to provide programs and services to people with disabilities in Suffolk County, and to ensure that people with disabilities have the same rights and responsibilities as their peers who do not have disabilities. SILO provides comprehensive services to individuals with disabilities in communities throughout Suffolk County. As an advocacy agency, SILO works with individuals, businesses, and other government and private agencies to promote equal access and equal housing opportunities for people with all disabilities. [GN] NRA GROUP: Court Grants Summary Judgment Bid in Isaac FDCPA Suit ---------------------------------------------------------------- In the case, ALDEAN ISAAC AND JULISSA ORTIZ, Plaintiffs, v. NRA GROUP, LLC D/B/A NATIONAL RECOVERY AGENCY AND STEVEN C. KUSIC, Defendants, Case No. 16-CV-5210 (JFB) (SIL) (E.D. N.Y.), Judge Joseph F. Bianco of the U.S. District Court for the Eastern District of New York (i) granted the Defendants' motion for summary judgment as to Count 1; and (ii) granted the Plaintiffs' request to dismiss Count II. Isaac and Ortiz bring the putative class action against NRA and NRA's CEO, Steven C. Kusic, for alleged violations of the Fair Debt Collection Practices Act ("FDCPA"). They filed the complaint on Sept. 19, 2016. The Plaintiffs assert one cause of action ("Count I") against both NRA and Kusic, alleging that debt collection letters sent by NRA to the Plaintiffs in September 2015 misrepresented the amount of debt that they owed in violation of FDCPA Sections 1692g and 1692e. The second cause of action ("Count II") alleges that both the Defendants violated Sections 1692e and 1692f of the FDCPA because the September 2015 letters falsely implied that NRA had the legal right to collect interest and fees from plaintiffs. In a Memorandum and Order, dated March 28, 2018, the Court denied the Plaintiffs' motion for partial summary judgment on the first cause of action as against NRA. In particular, it held that even the least sophisticated consumer -- who is presumed to possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care -- would not be misled by the September 2015 letters. Presently before the Court is the Defendants' motion for summary judgment. In response to the Defendants' summary judgment motion, the Plaintiffs request that the second cause of action be voluntarily dismissed, and the Court grants that request. With respect to the first cause of action, the Defendants argue that the Court's ruling in the March 28, 2018 Memorandum and Order -- that is, that the September 2015 Letters do not violate Section 1692e or Section 1962g -- warrants summary judgment in their favor. Judge Bianco agrees. He concludes that the Defendants are entitled to summary judgment on the only remaining cause of action because the September 2015 Letters did not violate Section 1692e or Section 1692g as a matter of law. The Defendants also argued, in the alternative, that Kusic is not a debt collector within the meaning of the FDCPA. Given the uncontroverted evidence in the record that Kusic had no personal involvement in connection with the collection of the Plaintiffs' debts, the Judge concludes that Kusic cannot have any individual liability under the FDCPA for any violations under 15 U.S.C. Sections 1692g and 1692e. For the foregoing reasons, and for the reasons set forth in the Court's March 28, 2018 Memorandum and Order, Judge Bianco granted the Defendants' motion for summary judgment as to Count 1. In addition, he granted the Plaintiffs' request to dismiss Count II. The Clerk of the Court will enter judgment accordingly and close the case. A full-text copy of the Court's March 29, 2019 Memorandum and Order is available at https://is.gd/YBpXs7 from Leagle.com. Aldean Isaac & Julissa Ortiz, individually and on behalf of all others similarly situated, Plaintiffs, represented by Craig B. Sanders -- csanders@sanderslawpllc.com -- Sanders Law, PLLC, David M. Barshay, Sanders Law, PLLC, Jonathan Mark Cader -- info@aronovaassociates.com -- SANDERS LAW, PLLC & Todd D. Muhlstock -- tmuhlstock@bakersanders.com -- The Muhlstock Law Firm PC. NRA Group, LLC, doing business as National Recovery Agency, Defendant, represented by Hilary Felice Korman -- hkorman@blankrome.com -- Blank Rome LLP & Scott Evan Wortman -- swortman@blankrome.com -- Blank Rome LLP. Steven C. Kusic, Defendant, represented by Hilary Felice Korman, Blank Rome LLP & Scott Evan Wortman, Blank Rome LLP. OHANA MILITARY: Court Issues Show Cause Order in Lake Suit ---------------------------------------------------------- In the case, KENNETH LAKE, CRYSTAL LAKE, HAROLD BEAN, MELINDA BEAN, KYLE PAHONA, ESTEL PAHONA, TIMOTHY MOSELEY, ASHLEY MOSELEY, RYAN WILSON, and HEATHER WILSON, Plaintiffs, v. OHANA MILITARY COMMUNITIES, LLC, FOREST CITY RESIDENTIAL MANAGEMENT, INC., DOE DEFENDANTS 1-10, Defendants, Civ. No. 16-00555 LEK (D. Haw.), Judge Leslie E. Kobayashi of the U.S. District Court for the District of Hawaii ordered the Plaintiffs to show cause why their Motion for Class Certification should not be denied. On March 22, 2019, the Named Plaintiffs filed their Motion. The Motion is currently scheduled for hearing on May 17, 2019 at 9:45 a.m. The Judge ordered the Plaintiffs to show cause why the Motion should not be denied because their operative pleading, the First Amended Complaint, did not provide either Defendants Ohana Military Communities, LLC and Forest City Residential Management, LLC or the Court with notice that they intended to pursue the instant case as a class action. Even if the Court construed the Motion as a motion for leave to amend the First Amended Complaint, the Motion does not address the applicable standards governing the amendment of a complaint. In particular, they must address whether allowing them to amend the First Amended Complaint to add class allegations would unduly delay the case and whether their failure to propose a class action until seven months before trial demonstrates "bad faith or dilatory motive." The Plaintiffs are ordered to file their response to the Order to Show Cause by April 12, 2019. The Plaintiffs' response will not exceed seven pages and must comply with the requirements of Local Rule 10.2. They're cautioned that, if their response fails to address the issues identified in the Order to Show Cause, the Motion will be summarily denied. Unless the Court orders otherwise, the hearing on the Motion will proceed as scheduled on May 17, 2019 at 9:45 a.m. The Defendants' memorandum in opposition will remain due by April 26, 2019. The memorandum in opposition must address both the Plaintiffs' Motion and their response to the Order to Show Cause. Unless the Court orders otherwise, the Plaintiffs' optional reply in support of the Motion will remain due by May 3, 2019. A full-text copy of the Court's April 2, 2019 Order is available at https://is.gd/QKPjWC from Leagle.com. Kenneth Lake, Crystal Lake, Harold Bean, Melinda Bean, Kyle Pahona, Estel Pahona, Timothy Moseley, Ashley Moseley, Ryan Wilson & Heather Wilson, Plaintiffs, represented by Patrick Kyle Smith, Smith Law, & Terrance M. Revere -- main@revereandassociates.com -- Revere & Associates, LLC. Ohana Military Communities, LLC & Forest City Residential Management, Inc., Defendants, represented by Christine A. Terada -- cterada@goodsill.com -- Goodsill Anderson Quinn & Stifel LLLP, Joachim P. Cox -- jcox@cfhawaii.com -- Cox Fricke A Limited Liability Law Partnership LLP, Kamala S. Haake -- khaake@cfhawaii.com -- Cox Fricke LLP, Lisa W. Munger -- lmunger@goodsill.com -- Goodsill Anderson Quinn & Stifel LLLP & Randall C. Whattoff -- rwhattoff@cfhawaii.com -- Cox Fricke LLP. PACIFIC BELL: Cal. App. Affirms Dismissal of Angela Rel's Suit -------------------------------------------------------------- In the case, ANGELA REL et al., Plaintiffs and Appellants, v. PACIFIC BELL MOBILE SERVICES et al., Defendants and Respondents, Case No. A152225 (Cal. App.), Judge Gordon B. Burns of the Court of Appeals of California for the First District, Division Five, affirmed the trial court's dismissal of the proposed class action lawsuit. The trial court dismissed the proposed class action lawsuit because the Plaintiffs failed to comply with Code of Civil Procedure section 583.310, which requires an action to be brought to trial within five years after the action is commenced against the defendant. The main issue is whether a pretrial order dismissing the class claims qualifies as a "trial" for purposes of the five-year dismissal statute. In class action lawsuits, such a pretrial order is treated as a final judgment and is therefore immediately appealable under the so-called death knell doctrine. A second issue is whether an appellate decision reversing a death knell order triggers a three-year extension under section 583.320, subdivision (a)(3). Both are issues of first impression. The operative seventh amended complaint was filed in August 2013. According to the seventh amended complaint, Rel had not been a subscriber since November 2004, and Cingular later discovered Monica Hodge voluntarily changed her rate plan in mid-2014. Cingular filed a motion to strike the class claims in the seventh amended complaint, arguing Hodge lacked standing. The trial court granted the motion, and Hodge filed a second death knell appeal. The Court reversed in Rel, concluding the trial court erred because whether a plaintiff may obtain a particular type of relief -- such as restitution or an injunction -- does not dictate whether a plaintiff lacks standing to assert the underlying cause of action. The remittitur issued on Aug. 15, 2016. Over the last few years, the trial court repeatedly raised concerns about the five-year dismissal statute. In 2013, the trial court cautioned the parties that the case would need to proceed to class certification and ordered counsel to be ready to discuss the five year statute end date. The following month, it ordered the parties to determine the time remaining for trial. In January 2014, the parties stipulated that the Plaintiffs were initially required to bring this action to trial by Dec. 8, 2008, but the parties agreed to toll the deadline 2,327 days for various reasons, including the death knell appeal in Tucker II. They further stipulated that the five-year statute currently expires no earlier than April 23, 2015. A year later, the court again expressed concern about the five-year statute and ordered the parties to submit letter briefs on their view of the deadline. Cingular calculated the deadline to be Sept. 7, 2015, which it later (following the decision in Rel) revised to Feb. 20, 2017. It is worth noting this last date assumes the deadline had been tolled approximately 3,000 days. In March 2017, Cingular moved for mandatory dismissal, arguing the five-year statute had run on Feb. 20, 2017. Hodge contended that section 583.310 had no application because a "trial or partial trial" already occurred on two separate occasions -- when the orders appealed in Tucker II and Rel were decided. Hodge also argued that our decisions in Tucker II and Rel triggered a three-year extension to bring the case to trial pursuant to section 583.320, subdivision (a)(3) and the death knell doctrine. At argument on the motion, Hodge's counsel conceded Cingular's calculation of the five-year deadline but argued section 583.320, subdivision (a)(3) applied and provided an additional three years after the Rel remittitur. The trial court granted Cingular's motion for mandatory dismissal, under section 583.310, noting application of the three-year statute following a successful interlocutory appeal under the death knell doctrine presented an issue of first impression. Hodge argues the five-year dismissal statute is inapplicable because the trial court's two death knell orders were tantamount to trials and that the decisions in Rel and Tucker II triggered a three-year extension of the deadline. Judge Burns finds the argument to be without merit. First, the rationale for the death knell doctrine does not apply to the five-year dismissal statute. Due to unique aspects of class actions, the death knell doctrine was created to fix a problem (unreviewable dispositive orders) caused by application of the general rule (the one final judgment rule). Second, a special rule for death knell orders would contradict the language and structure of the statute. Third, unsurprisingly, the Judge sees no practical or policy reason for an automatic extension for death knell orders. The Judge declines Hodge's invitation to expand the definition of a trial beyond that established by longstanding authority from our high court. He agrees with Cingular -- neither of the two death knell orders was a trial under section 583.310. The Judge also rejects Hodge's argument that our decisions reversing the two death knell orders, in Tucker II and Rel, triggered the three-year extension in section 583.320, subdivision (a)(3). He is not persuaded the Court should import the concept of de facto final judgments from the death knell doctrine into section 583.320, subdivision (a)(3), when the plain language does not in any way hint at such a legislative intent. From the Court's conclusion regarding what is a trial for purposes of section 583.310, it follows there has been no "judgment," much less a "remand for a new trial. Section 583.320, subdivision (a)(3), does not apply. The Judge holds he need not address the parties' remaining contentions. Based on the foregoing, Judge Burns concludes a death knell order does not constitute a trial under the five-year dismissal statute and an appellate decision reversing such an order does not trigger the three-year extension. Accordingly, he affirmed the order of dismissal. The Respondents are entitled to their costs on appeal. A full-text copy of the Court's March 29, 2019 Order is available at https://is.gd/zW4rAK from Leagle.com. Franklin & Franklin, J. David Franklin -- jdfranklaw@san.rr.com; Law Offices of Anthony A. Ferrigno and Anthony A. Ferrigno for Plaintiffs and Appellants. Drinker Biddle & Reath, Akin Gump Strauss Hauer and Feld, Michael J. Stortz -- mstortz@akingump.com -- and Matthew J. Adler -- matthew.adler@dbr.com -- for Defendants and Respondents. PORTFOLIO RECOVERY: Biganini Files FDCPA Suit in New York Ct. ------------------------------------------------------------- Silvio Biganini, individually and on behalf of all others similarly situated, Plaintiff, v. Portfolio Recovery Associates, LLC, Defendant, Case No. 19-cv-01174, (E.D. N.Y., February 28, 2019) seeks damages and other legal and equitable remedies, resulting from violations of the Fair Debt Collection Practices Act. Portfolio allegedly failed to provide Biganini notices needed for him to resolve his alleged debt for his debt originally owed to Capital One Bank (USA) N.A. for a consumer credit card. Portfolio Recovery Associates, LLC is a Delaware limited liability company that acts as a debt collector. [BN] Plaintiff is represented by: Joseph Mauro, Esq. THE LAW OFFICES OF JOSEPH MAURO, LLC 306 McCall Ave. West Islip, NY 11795 Tel: (631) 669-0921 Fax: (631) 669-5071 POWERCOMM HOLDINGS: Oral Argument in Randolph Suit on May 8 ----------------------------------------------------------- PowerComm Holdings Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 16, 2019, for the fiscal year ended December 31, 2018, that the U.S. Court of Appeals for the Fourth Circuit has set May 8, 2019, to hear oral argument on the issue on the award of attorney's fees in the class action suit initiated by Gregory Randolph. In April 2014, Gregory Randolph, a former employee of the Company filed a Class Action Labor Lawsuit against the Company in the Maryland Federal District Court. The lawsuit alleged that he and 48 other flaggers of the Company were not paid overtime pay which in Maryland is time and a half. The Company asserted that Mr. Randolph's testimony as to the amount of hours he worked was completely false and that he was correctly paid for the hours he worked per his time slips. As of December 2015, the Company has offered $100,000 to settle the case, which the Court subsequently approved after having conducted a fairness hearing. The Company accrued contingent loss of $100,000 during the year ended December 31, 2014. No additional contingent liability was accrued during the year ended December 31, 2015. On April 28, 2016, as stated, the settlement agreement was approved by the Court and judgment for plaintiffs was entered in the amount of $100,000. On April 29, 2016, the Company made payments to plaintiffs in the total amount of $100,000. On November 21, 2016, the Court ordered that the plaintiffs' revised petition for award of attorneys' fees and costs was granted, and that the Company is responsible for payment of $188,616, payable in 24 installments starting December 2, 2016. In 2017, the Company appealed the attorney fee award to the United States Court of Appeals for the Fourth Circuit ("4th Circuit"). On October 31, 2017 the 4th Circuit ruled in the Company's favor and reversed and remanded the attorney fee award back to the trial court as excessive. As of December 31, 2017, the Company had paid approximately $86,000. Based on the 4th Circuit's reversal and remand, the accrual of the remaining prior amounts recorded was reversed, and the Company believes that its payments made through December 31, 2017 to be sufficient under the 4th Circuit's instructions provided in the remand back to the trial court. Recently, on June 1, 2018, and based on the 4th Circuit's remand, the trial court issued a ruling which reduced the attorney fee award by approximately $6,000. Subsequently, in 2018, the Company asserts that the trial court's ruling is erroneous, as the reduction should have been far greater, and appealed again to the 4th Circuit (the second appeal). Presently, the parties have completed briefing to the 4th Circuit on the second appeal, and the 4th Circuit has set a date of May 8, 2019 to hear oral argument. A ruling from the 4th Circuit on the second appeal will be made subsequent to the May 2019 oral argument. PowerComm Holdings Inc., through its subsidiary, PowerComm Construction, Inc., engages in the electric utility, fiber optic, and telecommunications construction and maintenance services businesses in the United States. The company was formerly known as White Grotto Acquisition Corporation and changed its name to PowerComm Holdings, Inc. in September 2015. The company was incorporated in 2015 and is headquartered in Alexandria, Virginia. PRESS ENERGY: Burdett Suit to Recover Overtime Pay -------------------------------------------------- Cory Burdett, individually and on behalf of all others similarly situated, Plaintiff, v. Press Energy Services, LLC, Paul M. Palyu, and KJP Transportation, LLC, Defendant, Case No. 19-cv-00054 (W.D. Tex., February 27, 2019), seeks to recover overtime compensation, liquidated damages and all other available remedies under the Fair Labor Standards Act of 1938. Press Energy Services and KJP Transportation are full service field service providers in the energy industry providing short-haul trucking services, hauling produced water, fresh water, brine water, blowback water, mud, cuttings and chemicals from oil wells. Burdett is employed or jointly employed by the Defendants as a crude oil tanker driver. He claims to be misclassified as an independent contractor thus denied overtime compensation hour rendered in excess of 40 per week.[BN] Plaintiffs are represented by: Josh Borsellino, Esq. Borsellino, P.C. 1020 Macon St., Ste. 15 Fort Worth, TX 76102 Tel: 817.908.9861 Fax: 817.394.2412 Email: josh@dfwcounsel.com PROFESSIONAL DIVERSITY: Gerbie TCPA Action in Illinois Ends ----------------------------------------------------------- Professional Diversity Network, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on April 16, 2019, for the fiscal year ended December 31, 2018, that the case entitled, Gerbie, et al. v. Professional Diversity Network, Inc., has been concluded. The Company is a party to a proceeding captioned Gerbie, et al. v. Professional Diversity Network, Inc. (N.D. Ill.), a putative class action alleging violations of the Telephone Consumer Protection Act. A settlement has been reached and case has been dismissed by the court. The Company believes that its practices and procedures were compliant with the Telephone Consumer Protection Act and admitted no fault. Professional Diversity Network, Inc. operates online professional networking communities with career resources in the United States. The company operates through three segments: Professional Diversity Network, National Association of Professional Women, and Noble Voice Operations. The company was founded in 2003 and is headquartered in Chicago, Illinois. Professional Diversity Network, Inc. is a subsidiary of Cosmic Forward Limited. PUBLIC STORAGE: Class in Martinez-Santiago TCCWNA Suit Decertified ------------------------------------------------------------------ In the case, JACKELINE MARTINEZ-SANTIAGO, on behalf of herself and other persons similarly situated, Plaintiff, v. PUBLIC STORAGE, Defendant, Civil Action No. 14-cv-302 (JBS-AMD) (D. N.J.), Judge Jerome B. Simandle of the U.S. District Court for the District of New Jersey granted the Defendant's motion for decertification. The case is a certified class action lawsuit concerning alleged violations of New Jersey's Truth-in-Consumer Contract, Warranty, and Notice Act ("TCCWNA"). Plaintiff Martinez-Santiago, on behalf of herself and all similarly situated individuals, generally alleges that Defendant Public Storage violated TCCWNA with respect to four provisions within the rental agreements that were previously used in its lease of private storage spaces to consumers in New Jersey. The class, as certified, consists of approximately 160,000 members defined as follows: All natural persons who since Sept. 7, 2007 entered into lease agreements with Defendant in the State of New Jersey. The Plaintiff seeks at least the minimum $100 statutory penalty under TCCWNA for each class member. Currently pending before the Court are the Defendant's motions to decertify the class, and for summary judgment, as well as the Plaintiff's cross-motion for partial summary judgment, and motion to preclude testimony of Ronald Schaible. The Court heard oral argument on these motions on Sept. 6, 2017. Shortly thereafter, however, the Court was persuaded to temporarily stay the action pending judgment of the Third Circuit in two consolidated TCCWNA consumer contract cases, Spade v. Select Comfort Corp., No. 16-1558 (3d Cir.) and Wenger v. Bob's Discount Furniture, No.16-1558 (3d Cir.), wherein the Third Circuit certified the following question of state law to the New Jersey Supreme Court: "Is a consumer who receives a contract that does not comply with the Furniture Delivery Regulations, but has not suffered any adverse consequences from the noncompliance, an 'aggrieved consumer' under the TCCWNA?" The New Jersey Supreme Court has since answered that question with a resounding "no," holding that in the absence of evidence that the consumer suffered adverse consequences as a result of the Defendant's regulatory violation, a consumer is not an `aggrieved consumer' for purposes of the TCCWNA. The principal issues to be determined at this stage are whether the Plaintiff and the class can satisfy Article III's standing requirements and, if so, whether the class should remain certified following the New Jersey Supreme Court's decision in Spade. Judge Simandle concludes that the named Plaintiff, who undoubtedly suffered a "concrete" injury, has standing under Article III to bring suit on behalf of absent class members, but nevertheless finds that the certified class no longer satisfies the requirements of Rule 23, FED. R. CIV. P., in light of the New Jersey Supreme Court's holding in Spade which, when applied, determines that at least 99.98% of the class will be unable to state a TCCWNA claim, as a matter of New Jersey law. Accordingly, the Court granted the Defendant's motion for decertification. Because the litigation landscape has changed from some 160,000 members of the class to just one Plaintiff, it would be imprudent to address remaining motions that addressed themselves to a much different set of issues. Accordingly, the remaining motions are dismissed without prejudice. The counsel will meet and confer and, within 14 days, file a joint-proposal regarding how they wish to proceed with the remaining claims of Martinez-Santiago, if any. An accompanying Order will be entered. A full-text copy of the Court's March 29, 2019 Opinion is available at https://is.gd/77FuZh from Leagle.com. JACKELINE MARTINEZ-SANTIAGO, on behalf of herself and other persons similarly situated, Plaintiff, represented by ANDREW P. BELL, LOCKS LAW FIRM LLC, CHARLES N. RILEY -- criley@rileysandilos.com -- RILEY & SHAINE, JAMES A. BARRY -- jbarry@lockslaw.com -- LOCKS LAW FIRM LLC & MICHAEL A. GALPERN -- mgalpern@lockslaw.com -- JAVERBAUM WURGAFT HICKS KAHN WIKSTROM &SININS. PUBLIC STORAGE, Defendant, represented by WILLIAM PATRICK REILEY -- REILEYWBALLARDSPAHR.COM -- BALLARD SPAHR & CASEY GENE WATKINS -- watkinsc@ballardspahr.com -- BALLARD SPAHR LLP. QUEST DIAGNOSTICS: Vecchio Sues Over Unpaid Compensations --------------------------------------------------------- The class action captioned MARIA VECCHIO, individually, and on behalf of all others similarly situated, Plaintiff v. Quest Diagnostics Inc., ExamOne World Wide, Inc. and ExamOne LLC, Defendants, Case No. 652069/2019 (Sup. Ct. N.Y., New York Cty., April 9, 2019) seeks remedy from alleged violations of the Defendants of New York state law, specifically New York Labor Law, ("NY Labor Law"). Plaintiff and the class she seeks to represent are Mobile Examiners who visit patients (most commonly insurance applicants) at their homes or places of business, and conduct physical examinations and basic lab work for the purposes of insurance and benefits eligibility and underwriting. Mobile Examiners also routinely work more than ten hours per day and more than 40 hours per week, but do not receive any overtime compensation or spread-of-hours pay. Plaintiff alleges that Defendants regularly and routinely failed to pay minimum wage, fail to pay overtime, fail to pay spread-of-hours pay, fail to reimburse for necessary business expenses, and fail to accurately calculate hours worked, says the complaint. Plaintiff was employed by the Defendants as Mobile Examiners, and/or serve(d) as an Independent Contractor providing services as Mobile Examiners. Quest Diagnostics is a Delaware corporation with its headquarters and principal place of business in New Jersey.[BN] The Plaintiff is represented by: Danielle J. Marlow, Esq. Salvatore C. Badala, Esq. NAPOLI SHKOLNIK PLLC 360 Lexington Avenue, 11th Floor New York, NY 10017 Phone: (212) 397-1000 Fax: (646) 843-7603 Email: dmarlow@napolilaw.com sbadala@napolilaw.com REVOLUTION LIGHTING: Glancy Prongay Files Class Action ------------------------------------------------------ Glancy Prongay & Murray LLP ("GPM") on March 27 disclosed that it has filed a class action lawsuit in the United States District Court for the Southern District of New York, captioned Bishop v. Revolution Lighting Technologies, Inc. et al., (Case No. 1:19-cv-02722), on behalf of persons and entities that purchased or otherwise acquired Revolution Lighting Technologies, Inc. (NASDAQ: RVLT ) ("Revolution" or the "Company") securities between March 14, 2014, and November 14, 2018, inclusive (the "Class Period"). Plaintiff pursues claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"). On September 22, 2017, the Company reduced its 2017 full year revenue guidance to a range of $180 - 185 million, compared to prior guidance of $195 to 205 million, due in part to "slippage of a number of Energy Source division projects." On this news, the Company's share price fell $1.32 per share, or more than 17%, to close at $6.26 per share on September 22, 2017, thereby injuring investors. On August 2, 2018, the Company reported second quarter 2018 revenue of $36.5 million, which fell below expectations, reportedly due to project delays. On this news, the Company's share price fell $0.53 per share, or nearly 14%, to close at $3.37 per share on August 2, 2018, on unusually high trading volume. The Company's shares continued to decline over the course of the next two trading sessions, dropping $0.33 per share on August 3, 2018 and $0.22 per share on August 6, 2018. The total decline over the course of these two trading sessions was $0.55, or 18%, thereby further injuring investors. On October 17, 2018, Revolution announced that revenue for the third quarter of 2018 would be $33 million, compared to previous guidance of $40-$41 million, and that the Chief Executive Officer had offered to acquire all of the Company's common stock at a price of $2.00 per share. On this news, the Company's stock price fell $0.98 per share, or over 38%, to close at $1.58 per share on October 17, 2018, on unusually heavy trading volume, thereby further injuring investors. Then, on October 19, 2018, the Company disclosed an ongoing SEC investigation regarding revenue recognized from transactions between 2014 through the second quarter of 2018. The Company estimated that the net effect on the reported revenue based on shipment of products, as opposed to the Company's policy of bill and hold revenue recognition, "would have been to reduce revenue by $5.0 million, $6.3 million and $6.3 million in each of 2014, 2015 and 2016, respectively, and increase revenue by $11.6 million and $5.1 million in 2017 and 2018, respectively." On this news, the Company's stock price fell $0.16 per share, or over 10%, to close at $1.43 per share on October 22, 2018, on unusually heavy trading volume, thereby further injuring investors. On November 14, 2018, the Company announced that its CEO had reduced his offer to $1.50 per share, partly due to the SEC investigation and the Audit Committee's recently-announced review of the Company's revenue recognition of bill and hold transactions. On this news, the Company's stock price fell $0.55 per share, or nearly 40%, to close at $0.85 per share on November 15, 2018, on unusually heavy trading volume, thereby further injuring investors. The complaint filed in this class action alleges that throughout the Class Period, Defendants made false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose: (1) that the Company was improperly recognizing revenue for certain transactions; (2) that, as a result, the Company's financial statements were misstated; (3) that the Company lacked adequate internal controls over financial reporting; (4) that, as a result, Company would be subject to regulatory scrutiny and incur substantial costs; and (5) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. If you purchased Revolution securities during the Class Period, you may move the Court no later than April 1, 2019 to ask the Court to appoint you as lead plaintiff. To be a member of the Class you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the Class. If you wish to learn more about this action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Lesley Portnoy, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles, California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. If you inquire by email please include your mailing address, telephone number and number of shares purchased. [GN] ROYAL BANK: Freddie Mac Appeals Judgment in N.J. Carpenters Suit ---------------------------------------------------------------- Federal Home Loan Mortgage Corporation filed an appeal from the District Court's judgment issued on March 13, 2019, in the lawsuit titled New Jersey Carpenters Health Fund v. The Royal Bank of Scotland Group PLC, et al., Case No. 08-cv-5310, in the U.S. District Court for the Southern District of New York (New York City). The appellate case is captioned as New Jersey Carpenters Health Fund v. The Royal Bank of Scotland Group PLC, et al., Case No. 19-795, in the United States Court of Appeals for the Second Circuit. As previously reported in the Class Action Reporter, Freddie Mac filed an appeal from a District Court order dated September 14, 2017. That appellate case is entitled New Jersey Carpenters Health Fund v. The Royal Bank of Scotland Group PLC, et al., Case No. 17-2859.[BN] Appellant Federal Home Loan Mortgage Corporation is represented by: Christopher P. Johnson, Esq. MCKOOL SMITH, PC 1 Bryant Park New York, NY 10036 Telephone: (212) 402-9416 E-mail: cpjohnson@mckoolsmith.com Plaintiff-Appellee New Jersey Carpenters Health Fund, on Behalf of Itself and All Others Similarly Situated, is represented by: Christopher Lometti, Esq. COHEN MILSTEIN SELLERS & TOLL, PLLC 88 Pine Street New York, NY 10005 Telephone: (212) 838-7797 E-mail: clometti@cohenmilstein.com Defendants-Appellees The Royal Bank of Scotland Group PLC, Greenwich Capital Markets, Inc., DBA RBS Greenwich Capital, Deutsche Bank Securities Incorporated, Greenwich Capital Holdings, Inc., RBS Securities Inc., Wells Fargo Advisors, LLC, FKA Wachovia Securities LLC and Wachovia Capital Markets, LLC, sued herein as Wachovia Securities, LLC, are represented by: James Gaal Gamble, Esq. SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, NY 10017 Telephone: (212) 455-2000 Facsimile: (212) 455-2502 E-mail: jgamble@stblaw.com Defendants-Appellees NovaStar Mortgage Funding Trust, Series 2006-3; NovaStar Mortgage Funding Trust, Series 2006-4; NovaStar Mortgage Funding Trust, Series 2006-5; NovaStar Mortgage Funding Trust, Series 2006-6; NovaStar Mortgage Funding Trust, Series 2007-1; NovaStar Mortgage Funding Trust, Series 2007-2; Novastar Mortgage Funding Corporation; Novastar Mortgage Incorporated; Scott F. Hartman; Gregory S. Metz; W. Lance Anderson; and Mark A. Herpich are represented by: William F. Alderman, Esq. ORRICK, HERRINGTON & SUTCLIFFE LLP The Orrick Building 405 Howard Street San Francisco, CA 94105 Telephone: (415) 773-5944 E-mail: walderman@orrick.com RUANE CUNIFF: Court Denies Bid to Intervene in Ferguson ERISA Suit ------------------------------------------------------------------ In the case, MICHAEL L. FERGUSON, MYRL C. JEFFCOAT, and DEBORAH SMITH, on behalf of the DST SYSTEMS, INC. 401(K) PROFIT SHARING PLAN, Plaintiffs, v. RUANE CUNIFF & GOLDFARB INC., et al., Defendants, Case No. 17-cv-06685 (ALC) (S.D. N.Y.), Judge Andrew L. Carter of the U.S. District Court for the Souther District of New York denied the motion to intervene filed by Stephanie Ostrander and her counsel as the Putative Class Representative, or, in the alternative, on behalf of herself, invoking intervention of right, or, alternatively, permissive intervention under Federal Rule 24. The Named Plaintiffs, individually and on behalf of the DST Systems, Inc. 401(k) Profit Sharing Plan, bring the action under 29 U.S.C. Section 1132 against Ruane Cuniff & Goldfarb Inc. ("RCG"); DST Systems, Inc.; The Plan's Advisory Committee; and the Compensation Committee of the Board of Directors of DST Systems, Inc., for breach of fiduciary duties and other violations of the Employee Retirement Income Security Act ("ERISA") on Sept. 1, 2017. On Nov. 20, 2017, the Plaintiffs filed an Amended Complaint. On Dec. 1, 2017, they filed a Rule 26(f) Discovery Plan Report. On Dec. 29, 2017, the Court granted the Defendants' letter motion requesting a pre-motion conference for their anticipated motion to dismiss, and RCG filed an Answer to the Amended Complaint. On Nov. 5, 2018, the Plaintiffs filed a Second Amended Complaint ("SAC") and Defendants Moved to Dismiss all claims and allegations concerning the 401(k) portion of the Plan on Dec. 14, 2018. Before these recent filings, the existing parties attributed the lack of dispositive motions to their active settlement discussions and Department of Labor ("DOL") participation. On Sept. 7, 2017, Ostrander filed a putative class action against DST Defendants and RCG relating to the Plan in the U.S. District Court for the Western District of Missouri -- Ostrander v. DST Systems, Inc., et al., No. 4:17-cv-00747-BCW (W.D. Mo.). On Sept. 18, 2017, Ostrander moved to consolidate Ostrander with DuCharme v. DST Systems, Inc., an action previously brought by Ostrander's counsel in the Western District and dismissed over two months earlier. Ostrander admitted that the purpose of her Consolidation Motion was to maintain the claims originally asserted in DuCharme on behalf of the Plan in Kansas City as the first filed case number, ahead of the Ferguson case filed in New York. On Oct. 17, 2017, RCG and the DST Defendants filed Motions to Dismiss or Stay Ostrander in favor of Ferguson pursuant to the first-filed rule. On Feb. 2, 2018, the Western District dismissed Ostrander pursuant to the first-filed rule. The court considered Ostrander and Ferguson parallel actions because they both alleged claims on behalf of the Plan and Ferguson alleges claims against the same defendants, arising from the same conduct and circumstances. On July 23, 2018, Ostrander and her counsel moved to intervene in the present action pursuant to Fed. R. Civ. P. 24, arguing they meet the requirements for intervention as a matter of right and permissive intervention. She argues intervention is not prejudicial at this very early juncture and allows her to pursue protections and procedural mechanisms ensuring all participants interests, including her individual interests, are adequately protected. The existing parties argue the Court should not allow Ostrander to intervene because the motion is untimely, and Ostrander's interests are adequately protected. As indicated in her Consolidation Motion, Ostrander was aware in September 2017 that her interests were directly at issue in Ferguson. Thus, Judge Carter finds that Ostrander's Motion to Intervene nine months after having both constructive and actual notice of her interests in Ferguson is untimely. Courts have found shorter delays untimely. Next, the Judge finds that despite the recent dispositive motions seeking to dismiss certain claims in the SAC, the Parties' are engaged in resolving the matter as seen through settlement discussions and numerous mediation sessions. Granting Ostrander's Motion to Intervene may complicate and delay litigation as well as any settlement by adding plaintiffs and the counsel seeking to recover for the same allegations. Ostrander fails to demonstrate how intervention will not prejudice the existing parties' interests and prevent the the potential for undermining the settlement process. He also finds that Ostrander has not made a rigorous showing of inadequacy to overcome the presumption that the Plaintiffs adequately represent Ostrander's interests, and has thus failed to prove her right to intervene under Rule 24(a). Finally, the Judge finds that Ostrander has failed to provide the Court with any compelling reasons to permit intervention. Her intervention may prejudice the existing parties and her interests are adequately represented. Furthermore, the motion's severe untimeliness prevents the Court from inferring intervention would not unduly complicate and further delay the litigation. For the reasons discussed, Judge Carter denied Ostrander's motion to intervene. The Judge has considered all arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. A full-text copy of the Court's March 29, 2019 Opinion and Order is available at https://is.gd/rcTy21 from Leagle.com. Michael L. Ferguson, Myrl C. Jeffcoat & Deborah Smith, on behalf of the DST SYSTEMS, INC. 401(K) PROFIT SHARING PLAN, Plaintiffs, represented by Chiharu Gina Sekino -- csekino@sfmslaw.com -- Shepherd, Finkelman, Miller & Shah, LLC, James Edward Miller -- jmiller@sfmslaw.com -- Shepherd, Finkelman, Miller & Shah, LLP, Kolin C. Tang -- ktang@sfmslaw.com -- Shepherd, Finkelman, Miller & Shah, LLC, Monique Olivier, Duckworth Peters Lebowitz Olivier LLP, pro hac vice, Nathan C. Zipperian, Shepherd, Finkelman, Miller & Shah, LLP, Ronald Scott Kravitz, Shepherd, Finkelman, Miller & Shah, LLP & Laurie Rubinow -- lrubinow@sfmslaw.com -- Shepherd, Finkelman, Miller & Shah, LLC. Ruane Cuniff & Goldfarb Inc., Defendant, represented by Frank Walter Olander -- frank.olander@srz.com -- Schulte Roth & Zabel LLP, Robert J. Ward -- robert.ward@srz.com -- Schulte Roth & Zabel LLP & Ronald E. Richman -- ronald.richman@srz.com -- Schulte Roth & Zabel LLP. DST Systems, Inc., The Advisory Committee of the DST Systems, Inc. 401(K) Profit Sharing Plan & The Compensation Committee of the Board of Directors of DST Systems, Inc., Defendants, represented by Scott D. Musoff, Skadden, Arps, Slate, Meagher & Flom LLP, Alexander C. Drylewski, Skadden, Arps, Slate, Meagher & Flom LLP, James R. Carroll, Skadden, Arps, Slate, Meagher & Flom, L.L.P. & Michael S. Hines, Skadden, Arps, Slate, Meagher & Flom LLP. Stephanie Ostrander, individually and as representative of a class of similarly situated persons, Intervenor Plaintiff, represented by Joshua B. Katz, Kent, Beatty & Gordon, LLP & Andrew Schermerhorn, The Klamann Law Firm, pro hac vice. SAGAL FILBERT: Court Denies Bid to Dismiss Jackson FDCPA Suit ------------------------------------------------------------- In the case, CRYSTAL JACKSON, Plaintiff, v. STUART L. SAGAL, et al., Defendants, Civil Case No. GLR-18-495 (D. Md.), Judge George L. Russell, III of the U.S. District Court for the District of Maryland denied the Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment and Request for Hearing. The putative class action arises from a debt collection dispute between SFQB, a law firm representing The Maryland Management Co. ("MMC"), and Plaintiff Jackson, a former MMC lessee. From 2009 until 2010, Jackson and her husband lived in a property MMC managed. After wearying of various living conditions on and around the property, Jackson ultimately gave MMC 60 days' advance notice, and then moved out. In 2014, SFQB, on behalf of MMC, sued Jackson in the District Court of Maryland for Baltimore City for owed rent, late fees, court costs, utilities, and attorney's fees. The court awarded judgment for SFQB but did not award attorney's fees. On Aug. 15, 2017, the judgment was vacated, and the lawsuit was dismissed in response to a class-action settlement in another case, Claiborne v. The Maryland Management Co., 24-C-16-004505 (Circ. Ct. Balt. City filed Aug. 11, 2016). On Oct. 26, 2017, Sagal sent Jackson a collection letter on SFQB letterhead that stated she owed, $1253.58 plus attorney fees of $188.03 and interest. The Letter also stated that unless suitable arrangements are made to liquidate the indebtedness, they will have no alternative but to instigate legal proceedings. Such action will require additional cost and expense to Jackson as well as the inconvenience of appearing at the trial of the case. On Feb. 16, 2018, Jackson filed three-count Class Action Complaint for Violations of the Fair Debt Collection Practices Act against the Defendants, alleging violations of the Fair Debt Collection Practices Act ("FDCPA"). She alleges that the Defendants' Letter falsely stated that she: owed attorney's fees when no fees were due (Count I); would inevitably owe additional costs and expenses if she were sued (Count II); and would be forced to attend court in person if she were sued. Jackson seeks compensatory damages, statutory damages, and attorney's fees. On March 30, 2018, the Defendants filed their Motion to Dismiss, or in the Alternative, Motion for Summary Judgment and Request for Hearing. On April 19, 2018, Jackson filed an Opposition. The Defendants argue that the statements in the Letter regarding attorney's fees, additional cost, and appearance at trial were not false, deceptive, or misleading under the FDCPA. Alternatively, they contend that the statements are immaterial, and therefore, not actionable. Jackson counters that the statements in the Letter regarding attorney's fees, additional cost, and appearance at trial are false, deceptive, or misleading under to the FDCPA and are also material. Judge Russell finds that Jackson's Rule 56(d) affidavit sufficiently establishes that discovery is necessary. As a result, he will not convert the Motion and will construe it as a motion to dismiss. Next, the Judge finds that Jackson plausibly pleads a violation of the FDCPA related to the Letter's demand for attorney's fees. The least sophisticated consumer would reasonably face confusion when deciding how to respond to the Letter. As a result, such a demand for attorney's fees is material to the least sophisticated consumer. Accordingly, he will deny the Motion as to Count I. He also finds that Jackson plausibly alleges the statement about additional cost and expense is false, deceptive, or misleading and that it is material in violation of the FDCPA. The Letter's statements would likely lead the least sophisticated consumer to understand that legal action was unavoidable and would require "additional cost and expense." Accordingly, he will deny the Motion as to Count II. As to Count III, the Judge finds that Jackson plausibly alleges an FDCPA violation related to the statement regarding attendance at trial. The fact that no suit was filed at the time of the Letter is irrelevant to the least sophisticated consumer's decision-making process. Such language signifies to the least sophisticated consumer to pay the amount demanded before suit or be forced to appear in court. Accordingly, he will deny the Defendants' Motion as to Count III of the Complaint. For the foregoing reasons, Judge Russell denied the Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment and Request for Hearing, construed as a motion to dismiss. A separate Order follows. A full-text copy of the Court's March 29, 2019 Memorandum Opinionn is available at https://is.gd/ywedLq from Leagle.com. Crystal Jackson, individually and on behalf of all others similarly situated, Plaintiff, represented by Emanwel Josef Turnbull -- eturnbull@hollandlawfirm.com -- The Holland Law Firm PC, Peter A. Holland -- peter@hollandlawfirm.com -- The Holland Law Firm PC & Scott C. Borison -- Borison@legglaw.com -- Legg Law Firm LLP. Stuart L. Sagal, Defendant, represented by Shirlie Norris Lake -- lake@ewmd.com -- Eccleston and Wolf PC. Sagal, Filbert, Quasney & Betten, P.A., Defendant, pro se. SCIENCE APPLICATIONS: Pays $190,000 in Bedingfield Class Suit ------------------------------------------------------------- Science Applications International Corporation said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on April 18, 2019, that the company has agreed to pay $190,000 to plaintiff's counsel for attorneys' fees and expenses in full satisfaction of the claim for attorneys' fees and expenses in the Jason Perlow v. Robert A. Bedingfield, et al., class suit. On September 9, 2018, Science Applications International Corporation ("SAIC" or "the Company") and Engility Holdings, Inc. ("Engility") entered into a merger agreement pursuant to which SAIC would acquire all of the outstanding shares of Engility common stock in an all-stock transaction for total consideration of approximately $2.5 billion, and assume $900 million of Engility's debt (the "Merger"). On October 18, 2018, the Company filed with the U.S. Securities and Exchange Commission ("SEC") a Registration Statement on Form S-4, which also served as the joint proxy statement, to solicit votes in favor of the Merger and approve the issuance of common stock of SAIC for the purposes of the transaction. On October 31, 2018, the members of the company's board of directors were named as defendants in a purported stockholder class action filed in the Delaware Court of Chancery (the "Court") by one of the company's stockholders. The suit is captioned Jason Perlow v. Robert A. Bedingfield, et al., C.A. No. 2018-0785-AGB. The complaint alleged that the Company's directors breached their fiduciary duties of care, loyalty, good faith and/or disclosure by failing to disclose to the Company's stockholders all material information necessary to make an informed decision regarding the Company's proposal to issue common stock in connection with the Merger. Among other remedies, the plaintiff sought to enjoin the Merger and to hold the Company's directors liable for allegedly breaching their fiduciary duties. After the complaint was filed, the company determined to include additional disclosures in the Form S-4/A filed by the Company with the SEC on December 3, 2018, to moot plaintiff's claims. On December 5, 2018, the Court approved a stipulation under which the plaintiff voluntarily dismissed the action with prejudice as to himself only, but without prejudice as to any other putative class member. The Court retained jurisdiction solely for the purpose of adjudicating the anticipated application of plaintiff's counsel for an award of attorneys' fees and reimbursement of expenses in connection with the supplemental disclosures included in the December 3, 2018 Form S-4/A. The Company subsequently agreed to pay $190,000 to plaintiff's counsel for attorneys' fees and expenses in full satisfaction of the claim for attorneys' fees and expenses in the action. The Court has not been asked to review, and will pass no judgment on, the payment of the attorneys' fees and expenses or their reasonableness. Science Applications International Corporation provides technical, engineering, and enterprise information technology (IT) services primarily in the United States. Science Applications International Corporation was founded in 1969 and is headquartered in Reston, Virginia. SOULJA BOY: Fans Mull Class Action Over Unfilled Web Store Orders ----------------------------------------------------------------- Ny Magee, writing for The Grio, reports that some of Soulja Boy‘s fans are considering filing a class action lawsuit against the rapper after waiting about four months to receive their SouljaWatches and other online purchases. The products have been steeped in controversy since they were unveiled in December at Soulja's web store. Fans were quick to point out that there was nothing unique about the items, as each were allegedly inferior electronics, available on other websites for lower prices, Complex reported. Multiple customers noted in the emails that there's a possibility a class-action lawsuit could be filed over the matter, the report no.ted The "Crank That" rapper then pulled his SouljaGame console from souljawatch.com following rumors of a lawsuit from Nintendo. Despite the setbacks, fans were assured that all orders would be delivered. But when mid-January rolled around and the items still had not shipped, Soulja Boy told Complex that his team fell behind schedule when they received more orders than expected. At the same time, his site, souljawatch.com, was taken offline. He tweeted. "My ex-cameraman hacked my site and took it down." He then launched a new site called souljastore.com. Orders still haven't been fulfilled. And Complex reports that customer service emails about refunds aren't being answered by Soulja or his team. The story sparked a flurry of emails from folks who purchased products and have yet to receive them. "My 13-year-old son asked me to order a SouljaWatch for him on my debit card," a customer named Temeisha wrote. "We have yet to receive any watch! My son is still holding on to hope that maybe it'll just take a while. I have no faith that he will ever receive it." Another fan purchased a SouljaWatch for his mother for Christmas and he's still waiting for it to arrive. "I purchased four smart watches for my nieces," a customer named Raymond Thiefault wrote."They keep asking me REPEATEDLY over and over for their watches! I'm a disappointed customer and deserve full refund." In a second email, he adds, "What will you do about this? I don't want to file a claim report." Soulja Boy, meanwhile, hasn't offered any updates about the status of orders since January. However, he continues to encourage fans to buy products from his e-store. [GN] SPRINT/UNITED MANAGEMENT: Amaraut Seeks Pay for Off-the-Clock Work ------------------------------------------------------------------ Vladimir Amaraut, on behalf of himself and all others similarly situated, Plaintiff, v. Sprint/United Management Company, Defendant, Case No. 19-cv-00411 (S.D. Cal., February 28, 2019), seeks redress for Defendant's failure to provide meal and rest breaks, failure to provide itemized wage statements, interest thereon at the statutory rate, actual damages, all wages due to terminated employees, costs of suit, prejudgment interest and such other and further relief under the Fair Labor Standards Act, California labor laws and applicable Industrial Welfare Commission Wage Orders. Plaintiff is a former non-exempt, hourly employee who worked in a salesperson role at a Sprint retail stores in San Diego selling cellular phones, phone accessories, service plans and other products and services. He claims overtime for pre-shift and post shift duties, off-the-clock work and compensation for missed rest periods. [BN] Plaintiff is represented by: David C. Leimbach, Esq. Carolyn H. Cottrell, Esq. SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Ste. 1400 Emeryville, CA 94608 Tel: (415) 421-7100 Fax: (415) 421-7105 Email: ccottrell@schneiderwallace.com dleimbach@schneiderwallace.com STAMPS.COM INC: Grabisch Hits Share Price Drop ---------------------------------------------- Alan Grabisch, individually and on behalf of all others similarly situated, Plaintiff, v. Stamps.Com, Inc., Kenneth McBride, Kyle Huebner and Jeff Carberry, Defendants, Case No. 19-cv-01497 (C.D. Cal., February 28, 2019), seeks to pursue remedies under the Securities Act of 1933 and the Securities Exchange Act of 1934. Stamps.com is a provider of Internet-based mailing and shipping solutions in the United States operating under the Stamps.com and Endicia brands and utilize the United States Postal Service (USPS) services. Stamps.com shares trade on the NASDAQ under the ticker symbol "STMP." Plaintiffs, a STMP shareholder, allege that Stamps failed to disclose that its financial results depended on the manipulation of a USPS program that cost USPS an estimated $235 million per year and that its business was unsustainable and its financial results were highly misleading. On this news, the company's stock plummeted to a close price of $83.65 on February 21, 2019, a decline of over 57% from the previous close price of $198.08. [BN] Plaintiff is represented by: John T. Jasnoch, Esq. SCOTT+SCOTT, ATTORNEYS AT LAW, LLP 707 Broadway, Suite 1000 San Diego, CA 92101 Tel: (619) 233-4565 Fax: (619) 233-0508 Email: jjasnoch@scott-scott.com - and - Thomas L. Laughlin IV, Esq. Rhiana L. Swartz, Esq. SCOTT+SCOTT, ATTORNEYS AT LAW, LLP The Helmsley Building 230 Park Ave., 17th Floor New York, NY 10169 Tel: (212) 223-6444 Fax: (212) 223-6334 Email: tlaughlin@scott-scott.com rswartz@scott-scott.com STANFORD UNIVERSITY: Faces Class Action Over Admissions Scandal --------------------------------------------------------------- Carrie Bradon, writing for Northern California Record, reports that the recent discovery of bribing scandals involving wealthy parents and prestigious educational institutions has had a new development as students have filed a lawsuit against the institutions over allegations that the admissions process was unfair. The lawsuit was filed in the U.S. District Court for the Northern District of California on March 13 by Stanford University student Erica Olsen and Kalea Woods, who applied to the same universities that have been involved in bribery and claim that they are owed their admissions fees back since they never had a shot at getting in. Defendants in the proposed class action suit include the University of Texas at Austin, Georgetown University, The University of Southern California and Stanford University. Kim Stone of Stone Advocacy commented on this lawsuit and her opinion of the students' argument. "I cannot wait for this lawsuit to get smacked out of court. It's ridiculous," Stone told The Northern California Record. "The whole scandal is shocking and horrible, and I'm personally glad that the FBI is going after the wrongdoers and is going to prosecute them criminally to the full extent of the law -- which is fully appropriate -- but the idea that tens of thousands of students who were rejected from those schools suffered a harm that deserves to be compensated is ridiculous." Stone said that there were originally two named plaintiffs in the lawsuit but that one has dropped out, the remaining named plaintiff was rejected from a university and is seeking reimbursement from that university. However, the plaintiff was accepted into another university which is just as prestigious if not more so than the one she was rejected from. "The funny thing is, though, that she got into Stanford, which isn't exactly a subpar institution. It's going to be hard for her to have any credible damages," Stone said. "The complaint also alleges that the degree from Stanford is somehow going to be worth less than it would have been prior to the scandal because everybody is going to think that she came from a rich family that bribed somebody to get her in, which is laughable." While Stone believes that wealthy families often have unfair advantages over poorer families, she does not believe that a class action lawsuit is the appropriate way to seek justice. "Remedying that injustice through a class action lawsuit does not make sense. When a student applies to college and pays the application fee to apply, that is not a down payment or a purchase of a ticket, that is more analogous to a lotto ticket: you are paying for the chance of getting in, no matter what your SAT scores, or grades or extracurricular activities are, there is no guarantee of getting in," Stone said. [GN] STICKY'S HOLDINGS: Martinez Sues Over Blind-Inaccessible Website ---------------------------------------------------------------- Pedro Martinez, Individually and as the representative of a class of similarly situated persons, Plaintiff, v. Sticky's Holdings LLC d/b/a Sticky's The Finger Joint, Defendant, Case No. 1:19-cv-02057 (E.D. N.Y., April 9, 2019) is a civil rights action brought against Sticky's for failure to design, construct, maintain, and operate their website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired persons. The Defendant is denying blind and visually impaired persons throughout the United States with equal access to the goods and services Sticky's provides to their non-disabled customers through http//:www.Stickys.com. The Defendant' denial of full and equal access to its website, and therefore denial of its products and services offered, and in conjunction with its physical locations, is a violation of Plaintiff's rights under the Americans with Disabilities Act ("ADA"), says the complaint. Plaintiff is a visually-impaired and legally blind person who requires screen reading software to read website content using her computer. Defendant Sticky's Holdings LLC operates Sticky's Restaurants which are located in New York City and provide food and beverage items.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 44 Court St., Suite 1217 Brooklyn, NY 11201 Phone: (917) 373-9128 Fax: (718) 504-7555 SUNNIVA INC: Faces Class Action Over NHS EMR Privacy Breach ----------------------------------------------------------- According to CISOMAG, Sunniva Inc. recently reported that it has been named in a class action lawsuit, along with its wholly owned subsidiary, Natural Health Services Ltd. ("NHS"), in connection with a privacy breach of the Electronic Medical Record ("EMR") system used by NHS. Sunniva and NHS will defend this action. NHS identified that there was a data breach in the EMR system between December 4, 2018 and January 7, 2019, during which period NHS records containing personal health information of approximately 34,000 patients were accessed without authorization. The breach did not involve any financial, credit card or social insurance number information as NHS does not collect that information from its patients. NHS has been working with privacy protection and law enforcement authorities to investigate and respond to this breach. NHS has notified the patients whose data was accessed, provided details about the breach and its investigation to date, and guidance for other steps that patients can take to protect themselves. NHS has established its own dedicated hotline to field patient inquiries at 1-888-297-0573. NHS has taken the following steps to protect personal health information in its care from further harm or similar circumstances: -- initiated a privacy investigation, with an independent third-party consulting firm which specializes in cyber security forensic services; and -- addressed operational and technology updates triggered by the incident to improve the protection of patient personal health information. "We value our patients and understand the importance of protecting personal information and apologize to the patients whose personal information has been improperly accessed and for any frustration or inconvenience that this may cause," said Dr. Mark Kimmins, President of NHS. "We are taking this situation very seriously and are taking the necessary steps to prevent a situation like this from happening again. In addition, we are working with law enforcement and the Office of the Information and Privacy Commissioner of Alberta to investigate this matter." [GN] T-MOBILE NORTHEAST: Bid to Remand Edoff Data Breach Suit Denied --------------------------------------------------------------- In the case, CHAD EDOFF, Plaintiff, v. T-MOBILE NORTHEAST LLC, et al., Defendants, Civil Action No. ELH-18-3777 (D. Md.), Judge Ellen L. Hollander of the U.S. District Court for the District of Maryland denied Edoff's request for remand to State court. On Oct. 5, 2018, in the Circuit Court for Baltimore City, Edoff filed a class action suit against Defendants T-Mobile Northeast LLC and T-Mobile USA, Inc. The Complaint assert that in August of 2019, unknown persons gained unauthorized access to T-Mobile's servers, and took personal information of some 2.5 million consumers from the same servers. According to the Plaintiff, reasonable security measures would have prevented the Data Breach. Edoff brings the action on behalf of himself and all individuals in the State of Maryland that were then cellular communication and or data service subscribers of the Defendants' cellular communication and or data services whose Personal Information was accessed without authorization in August of 2018. The Complaint estimates that the Maryland Class may consist of tens of thousands of members. Edoff asserts that the amount in controversy exceeds $5,000, and he seeks monetary damages to the maximum extent permitted by law, as well as attorneys' fees and costs. On Dec. 7, 2018, T-Mobile timely removed the case to federal court. The Notice alleges subject matter jurisdiction under the Class Action Fairness Act ("CAFA"). Pursuant to Section 1332(d), T-Mobile explained in its Notice that the Court has jurisdiction under CAFA because: (1) it is a class action brought by one or more representative persons; (2) the number of proposed class members exceeds 100 persons; (3) the action satisfies minimum diversity requirements; and (4) "the aggregate amount in controversy exceeds $5 million, excluding interests and costs. In an Order of Dec. 13, 2018, Judge Hollander asked the defense counsel to clarify the basis for jurisdiction under CAFA. T-Mobile submitted a memorandum and the affidavit of Christopher Muzio, a T-Mobile analyst and custodian of records. Edoff also filed a memorandum and an affidavit, requesting that the Court remands the case to State court and award attorneys' fees and costs. He contends that T-Mobile has not adequately shown that the amount in controversy exceeds the threshold amount of $5 million. Judge Hollander finds that the Defendants plausibly allege that the amount in controversy exceeds $5 million. They submitted the Declaration of Christopher Muzio, who attests that the data breach potentially impacted approximately 15,280 Maryland residents. And, the Plaintiffs seek statutory damages of $1,000 "per first-time violation." Therefore, the amount in controversy is well over $5 million (15,280 x $1,000 = $15,280,000). As such, T-Mobile has presented a reasonable basis to support its assertion as to the amount in controversy. In addition, the Judge finds that T-Mobile Northeast is a Delaware limited liability company with its principal place of business in Delaware. Moreover, T-Mobile USA is the sole member of T-Mobile Northeast and is a Delaware Corporation with its principal place of business in the State of Washington. As such, none of the Defendants in the case are citizens of Maryland, the state in which the action was originally filed. Upon review of the submissions of the parties, she concludes that T-Mobile has demonstrated that federal jurisdiction is proper. For these reasons, Judge Hollander denied Edoff's request for remand. Accordingly, the Plaintiff may respond in opposition to the Defendants' motion to compel arbitration by April 19, 2019. And, the Defendants may reply by May 3, 2019. An Order follows, consistent with the Memorandum. A full-text copy of the Court's April 2, 2019 Memorandum is available at https://is.gd/csIfTl from Leagle.com. Chad Edoff, Plaintiff, represented by Joshua G. Whitaker -- help@adelphilaw.com -- Adelphi LLP. T-Mobile Northeast LLC & T-Mobile USA, Inc., Defendants, represented by Brian D. Frey -- brian.frey@alston.com -- Alston & Bird LLP, Derin Bronson Dickerson -- derin.dickerson@alston.com -- Alston and Bird LLP, pro hac vice, Kristine McAlister Brown -- kristy.brown@alston.com -- Alston and Bird LLP, pro hac vice & Mia L. Falzarano -- mia.falzarano@alston.com -- Alston and Bird LLP, pro hac vice TERNIUM SA: Consolidated Amended Complaint Due May 15 ----------------------------------------------------- Ternium S.A. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on April 16, 2019, for the fiscal year ended December 31, 2018, that the consolidated amended complaint in the class action suit pending before the Eastern District of New York is due on May 15, 2019. The Company is aware that, following its November 27, 2018 announcement that its chairman Paolo Rocca was included in an Argentine court investigation known as the Notebooks Case, a putative class action complaint was filed in the U.S. District Court for the Eastern District of New York purportedly on behalf of purchasers of Ternium securities from May 1, 2014 through November 27, 2018. The individual defendants named in the complaint are the company's chairman, its former CEO, its current CEO and its CFO. That complaint alleges that during the class period (May 2014-November 2018), the Company and the individual defendants inflated the price of Ternium's American Depositary Shares (ADSs) by failing to disclose that sale proceeds received by Ternium when Sidor was expropriated by Venezuela were received or expedited as a result of alleged improper payments made to Argentine officials. The complaint does not specify the damages that plaintiff is seeking. In accordance with a schedule agreed upon between the parties and ordered by the court, the plaintiff is expected to file a consolidated amended complaint by May 15, 2019, and the Company's response to the amended complaint will be due by July 15, 2019. Ternium said, "Management believes the Company has meritorious defenses to these claims; however, at this stage the Company cannot predict the outcome of the claim or the amount or range of loss in case of an unfavorable outcome." Ternium S.A., through its subsidiaries, manufactures and processes various steel products in Mexico, Argentina, Paraguay, Chile, Bolivia, Uruguay, Brazil, the United States, Colombia, Guatemala, Costa Rica, Honduras, El Salvador, and Nicaragua. It operates in two segments, Steel and Mining. Ternium S.A. was founded in 1961 and is based in Luxembourg City, Luxembourg. Ternium S.A. is a subsidiary of Techint Holdings S.a r.l. TESLA INC: Srinivasan Appeals Ruling in Wochos Suit to 9th Cir. --------------------------------------------------------------- Plaintiffs Uppili Srinivasan and Kurt Friedman filed an appeal from a Court ruling in their lawsuit entitled Gregory Wochos, et al. v. Tesla, Inc., et al., Case No. 3:17-cv-05828-CRB, in the U.S. District Court for the Northern District of California, San Francisco. As previously reported in the Class Action Reporter, the Plaintiffs claim that Tesla made certain alleged misstatements regarding its Model 3 vehicle in May and August 2017. Judge Charles R. Breyer dismissed the claims in the case without prejudice in light of the Plaintiffs' failure to plead any false or misleading statement. Tesla's motion to dismiss the Second Amended Complaint in the Wochos litigation was filed on November 20, 2018. The appellate case is captioned as GREGORY WOCHOS, Individually and on Behalf of All Others Similarly Situated, Plaintiff, and UPPILI SRINIVASAN; KURT FRIEDMAN, Plaintiffs-Appellants v. TESLA, INC.; ELON MUSK; DEEPAK AHUJA; JASON WHEELER, Defendants-Appellees, Case No. 19-15672, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- May 8, 2019 -- Transcript shall be ordered; -- June 7, 2019 -- Transcript shall be filed by court reporter; -- July 17, 2019 -- Appellant's opening brief and excerpts of record shall be served and filed pursuant to FRAP 31 and 9th Cir. R. 31-2.1; -- August 16, 2019 -- Appellees' answering brief and excerpts of record shall be served and filed pursuant to FRAP 31 and 9th Cir. R. 31-2.1; and -- The optional appellant's reply brief shall be filed and served within 21 days of service of the appellees' brief, pursuant to FRAP 31 and 9th Cir. R. 31-2.1.[BN] TICKETMASTER LLC: Ninth Circuit Appeal Filed in Lee Class Suit -------------------------------------------------------------- Plaintiff Allen Lee filed an appeal from a Court ruling in the lawsuit styled Allen Lee v. Ticketmaster L.L.C., et al., Case No. 3:18-cv-05987-VC, in the U.S. District Court for the Northern District of California, San Francisco. As previously reported in the Class Action Reporter, the Plaintiff alleges that Ticketmaster has actually facilitated the sale of tickets to the secondary market by secretly implementing a "Resale Partner Program" supported by TradeDesk, which Ticketmaster acknowledges it "built expressly for professional resellers." Ticketmaster does this in order to receive a second cut on tickets, that is even more than the original cut Ticketmaster receives. The appellate case is captioned as Allen Lee v. Ticketmaster L.L.C., et al., Case No. 19-15673, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant Allen Lee's opening brief is due on June 7, 2019; -- Appellees Live Nation Entertainment, Inc. and Ticketmaster L.L.C.'s answering brief is due on July 8, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant ALLEN LEE, on behalf of himself and all others similarly situated, is represented by: Steve Berman, Esq. Shayne Christopher Stevenson, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1301 2nd Avenue, Suite 2000 Seattle, WA 98101 Telephone: (206) 623-7292 E-mail: steve@hbsslaw.com shaynes@hbsslaw.com - and - Elaine T. Byszewski, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 301 North Lake Avenue, Suite 920 Pasadena, CA 91101 Telephone: (213) 330-7150 E-mail: elaine@hbsslaw.com Defendants-Appellees TICKETMASTER L.L.C., a Virginia corporation, and LIVE NATION ENTERTAINMENT, INC., a Delaware corporation, are represented by: Timothy L. O'Mara, Esq. Daniel Murray Wall LATHAM & WATKINS LLP 505 Montgomery Street, Suite 2000 San Francisco, CA 94111-6538 Telephone: (415) 391-0600 E-mail: tim.o'mara@lw.com dan.wall@lw.com TQ PIZZERIA: Underpays Kitchen Workers, Villanueva Alleges ---------------------------------------------------------- JAIRO VILLANUEVA, individually and on behalf of all others similarly situated, Plaintiff v. TQ PIZZERIA CORP. d/b/a LENNY'S PIZZA; and BLERANT QOKU, Defendants, Case No. 1:19-cv-01695-RRM-SJB (E.D.N.Y., March 25, 2019) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs. The Plaintiff Villanueva was employed by the Defendants as kitchen worker. TQ Pizzeria Corp. d/b/a Lenny's Pizza is a corporation organized under the laws of the State of New York. The Company makes pizza. [BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: (718) 263-9591 TRISTATE PARKING: Almonte Seeks to Recover Unpaid Wages ------------------------------------------------------- Isidoro Aracena Almonte, individually and on behalf of others similarly situated, Plaintiff, v. Tristate Parking Inc., Nelson Rodriguez , Kelvin Rodriguez and Henry Delgado, Defendants, Case No. 19-cv-01204 (E.D. N.Y., February 28, 2019), seeks to recover unpaid minimum and overtime wages and redress for Defendants' failure to provide itemized wage statements pursuant to the Fair Labor Standards Act of 1938 and New York Labor Law, including applicable liquidated damages, interest, attorneys' fees and costs. Defendants own, operate, or control a parking management company where Almonte primarily worked in various locations in Queens and Long Island. He claims to have worked in excess of 40 hours per week, without appropriate minimum wage, spread-of-hours and overtime compensation for the hours that he worked. Defendants also failed to maintain accurate recordkeeping of their hours worked, notes the complaint. [BN] Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Tel: (212) 317-1200 Email: Faillace@employmentcompliance.com TSR INC: Paskowitz Class Action Still Ongoing --------------------------------------------- TSR, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 12, 2019, for the quarterly period ended February 28, 2019, that the company continues to defend a class action suit initiated by Susan Paskowitz. On October 16, 2018, the Company was served with a complaint filed in the Supreme Court of the State of New York, Queens County, by Susan Paskowitz, a stockholder of the Company, against the Company; Joseph F. Hughes and Winifred M. Hughes; current and former directors Christopher Hughes, Raymond A. Roel, Brian J. Mangan, Regina Dowd, James J. Hill, William Kelly, and Eric Stein; as well as stockholders Zeff Capital, L.P. ("Zeff"), QAR Industries, Inc. ("QAR") and Fintech Consulting LLC ("Fintech," and collectively with Zeff and QAR, the "Zeff Group"). The complaint purports to be a class action lawsuit asserting claims on behalf of all minority stockholders of the Company. Ms. Paskowitz alleges the following: the sale by Joseph F. Hughes and Winifred M. Hughes of an aggregate of 819,491 shares of the Company's common stock ("controlling interest") to Zeff, QAR and Fintech was in breach of Joseph F. Hughes' and Winifred M. Hughes' fiduciary duties and to the detriment of the Company's minority stockholders; the members of the Board of Directors of the Company named in the complaint breached their fiduciary duties by failing to immediately adopt a rights plan that would have prevented Joseph F. Hughes and Winifred M. Hughes from selling their shares and preserved a higher premium for all stockholders; Zeff, QAR, and Fintech are "partners" and constitute a "group." Ms. Paskowitz also asserts that the Zeff Group aided and abetted Joseph F. Hughes' and Winifred M. Hughes' conduct and ultimately seeks to buy out the remaining shares of the Company at an unfair price. The complaint filed by Ms. Paskowitz on October 11, 2018 seeks declaratory judgment and unspecified monetary damages. The complaint requests declarations from the court that: (1) Joseph F. Hughes' and Winifred M. Hughes' sale of their controlling interest to the Zeff Group was in breach of their fiduciary duties, and that those shares may not be voted or sold back to the Company pending further court order; (2) the members of the Board of Directors named in the complaint breached their fiduciary duties by failing to timely adopt a stockholder rights plan, which resulted in the loss of the ability to auction the Company off to the highest bidder without interference from the Zeff Group; and (3) the Zeff Group must make a number of disclosures regarding their plans for the Company, their relationships with one another, and any agreements with Joseph F. Hughes and Winifred M. Hughes. The complaint has not assigned any monetary values to alleged damages, but it seeks: (1) for Joseph F. Hughes and Winifred M. Hughes, and the Zeff Group, to disgorge any benefit they received from the sale of the Hughes' controlling interest; (2) for the Board of Directors of the Company to pay damages equal to the reduced value of the class members' shares as auctionable assets; and (3) reasonable attorneys' fees and costs. TSR said, "Although the Company is named as a defendant, there are no claims or damages allegations against the Company, and the complaint states that it names the Company solely to effectuate equitable relief if granted." No further updates were provided in the Company's SEC report. TSR, Inc. provides contract computer programming services in the New York metropolitan area, New England, and the Mid-Atlantic region. TSR, Inc. was founded in 1969 and is based in Hauppauge, New York. UCLA HEALTH: Settles Data Breach Class Action for $7.5MM -------------------------------------------------------- Mackenzie Garrity, writing for Becker's Health Review, reports that UCLA Health has agreed to pay $7.5 million to settle a class-action lawsuit brought by patients after a data breach put their personal and health information at risk, according to the HIPAA Journal. The university health system discovered suspicious activity on its network in October 2014 and contacted the FBI for help. At that time, it was assumed no medical records had been compromised, but by May 2015, it was discovered that hackers had gained access to patients protected health information. About 4.5 million patients were affected by the breach. The HHS Office for Civil Rights determined UCLA Health followed the appropriate protocol and was satisfied with the university health system's post-breach efforts to improve security, according to the Journal. But patients were not as satisfied and filed a class-action suit, arguing UCLA Health failed to notify them about the data breach in a timely manner, there had been a breach of contract, and that failing to protect patients' privacy was negligence, according to the report. UCLA Health alerted patients July 15, 2015, about the data breach. HIPAA requires that organizations notify affected personnel in less than 60 days from the discovery that personal health information has been affected. The patients claimed UCLA should have notified them more promptly, as the incident happened nine months prior to their notice. Patients have until May 20 to object to the settlement. They can claim up to $5,000 to cover identify protection costs and up to $20,000 for any losses or damages caused by the data breach. Of the $7.5 million settlement, $2 million has been set aside for patient claims. The other $5.5 million will go toward UCLA Health developing a cybersecurity fund to improve cybersecurity defenses. [GN] UCONN HEALTH: Faces Class Action Over Patient Data Breach --------------------------------------------------------- Robert Storace, writing for Connecticut Law Tribune, reports that the first lawsuit stemming from February's announcement that a University of Connecticut Health Center data breach could have affected 326,000 current and former patients has been filed in federal court. The putative class action lawsuit, filed March 18 on behalf of New London resident Yoselin Martinez, alleges the health center notified those affected months after the fact and also states the center could have done more to prevent the breach. The 31-page lawsuit states, "UConn disregarded the rights of plaintiff and class members by intentionally, willfully, recklessly, or negligently failing to take adequate and reasonable measures to ensure its data systems were protected." The lawsuit said the health center announced Feb. 25, nearly two months after the breach was identified, that a hacker had gained access to a number of employee email accounts through a phishing attack that subsequently exposed the personal data of the current and former health center patients. The exposed personal information, the lawsuit says, included patients' names, date of birth, addresses, medical information and Social Security numbers. According to the lawsuit, credit bureau Experian found in a study that the average total cost of medical identity theft is about $20,000 per incident, and that a majority of victims of medical identity theft were forced to pay out-of-pocket costs for health care they did not receive in order to restore coverage. Martinez alleges shortly after being notified of the breach she checked her bank account, which had been overdrawn. Upon speaking with a bank representative, the lawsuit says, Martinez was informed that the charge was a result of a fraudulent transaction on her account. "In addition to the fraudulent activity currently affecting Ms. Martinez as a result of the breach, she will continue to be at heightened risk for financial fraud and identity theft and their attendant damages for years to come," the lawsuit says. The lawsuit maintains there were major problems with the health center's security protocols from the get-go. "The deficiencies in defendants' data security protocols were so significant that the breach likely remained undetected for months," the suit says. "Intruders, therefore, had months to access, view, and steal patient data unabated. . . . Timely action by UConn would likely have significantly reduced the consequences of the breach." The lawsuit seeks at least $5 million in damages. It also seeks designation as a class and that the health center implement improved security procedures and measures. Delker Vardilos, the health center's interim health information officer, said on March 26 the center does not comment on pending litigation. The lawsuit did include the health center's statement in February after it announced the breach. That statement reads: "UConn Health recently learned that an unauthorized third-party illegally accessed a limited number of employee email accounts. Upon learning of the incident, we immediately took action, including securing the impacted accounts to prevent further unauthorized access and confirming the security of our email system. We also notified law enforcement and retained a leading forensic security firm to investigate and conduct a comprehensive search for any personal information in the impacted email accounts." Representing the plaintiff are Brian Murray of Glancy Prongay & Murray and Jean Sutton Martin of North Carolina-based Morgan & Morgan. Neither attorney responded to a request for comment on March 26. As of March 26, the health center had not assigned an attorney to the matter. The lawsuit cites six counts, including negligence, breach of contract and invasion of privacy. Judge Vanessa Bryant is scheduled to hear the case. [GN] UNION PACIFIC: 8th Cir. to Hear Appeal from Class Cert. Order ------------------------------------------------------------- Union Pacific Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 18, 2019, for the quarterly period ended March 31, 2019, that the U.S. Court of Appeals for the Eighth Circuit has granted the company's petition for permission to appeal the U.S. District Court's decision granting plaintiffs' motion for class certification. In 2016, a lawsuit was filed in U.S. District Court for the Western District of Washington alleging violations of the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act relating to Fitness for Duty requirements for safety sensitive positions. On August 8, 2016, the U.S. District Court for the Western District of Washington granted plaintiffs' motion to transfer their claim to the U.S. District Court of Nebraska. On February 5, 2019, the U.S. District Court of Nebraska granted plaintiffs' motion to certify the ADA allegations as a class action. The company filed a petition for permission to appeal the U.S. District Court's decision to the Eighth Circuit Court of Appeals. On March 13, 2019, the Eighth Circuit granted Union Pacific's Petition. The company have also subsequently filed a Motion to Stay the U.S. District Court proceedings pending a decision by the Eighth Circuit. Union Pacific said, "We continue to deny these allegations, believe this lawsuit is without merit and will defend our actions. We believe this lawsuit will not have a material adverse effect on any of our results of operations, financial condition, and liquidity." Union Pacific Corporation, through its subsidiary, Union Pacific Railroad Company, engages in the railroad business in the United States. Union Pacific Corporation was founded in 1862 and is headquartered in Omaha, Nebraska. UNITED STATES: Williams Suit to Proceed in Forma Pauperis --------------------------------------------------------- In the case, JODY WILLIAMS, et al., Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants, Case No. 2:18-cv-01737-GMN-CWH (D. Nev.), Magistrate Judge C.W. Hoffman, Jr. of the U.S. District Court for the District of Nevada granted the Plaintiffs' application to proceed in forma pauperis. Williams brings a class action complaint on behalf of herself and the members of Sex Workers Anonymous, challenging the constitutionality of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017. The Plaintiff names the United States of America, Facebook Inc., Googleplex, Amazon, Jesse Maley, and Sex Workers Outreach Project as the Defendants in the complaint and seeks declaratory and injunctive relief. She also alleges due process violations, deceptive trade practices, conspiracy to interfere with civil rights, and an assortment of state law claims. Presently before the Court is Plaintiffs Williams and Trafficking and Prostitution Services' application for leave to proceed in forma pauperis, filed on Sept. 7, 2018. Williams has submitted the declaration required by 28 U.S.C. Section 1915(a) showing an inability to prepay fees and costs or give security for them. Having reviewed the complaint, Magistrate Judge Hoffman finds that the Plaintiff's complaint fails to demonstrate that the United States has waived its sovereign immunity. The United States is immune from suit, unless it consents to be sued. Any such waiver of sovereign immunity must be unequivocal. The Plaintiff's complaint fails to state whether the United States has made an unequivocal waiver of its sovereign immunity. Further, the Plaintiff cannot proceed with the class action as a pro se litigant. Given that she is a pro se litigant and does not have the authority to represent the other Plaintiffs, the case cannot proceed as a class action. Lastly, the case cannot proceed as to the Plaintiff as an individual, because she does not specify which factual allegations pertain to her as an individual and which allegations pertain to the other Plaintiffs. Thus, even liberally construing her complaint, the Judge is unable to determine which allegations apply only to the Plaintiff. He therefore will dismiss the complaint without prejudice for the Plaintiff to file a new action solely on her own behalf or to secure an attorney to represent the class. If the Plaintiff chooses to file a second amended complaint on her own behalf, she is advised that all the Defendants must be identified in the caption of the pleading and that she must specify which claims she is alleging against which Defendants. Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, the Plaintiff must give the Defendants fair notice of each of the claims the Plaintiff is alleging against each Defendant. Specifically, she must allege facts showing how each named Defendant is involved and the approximate dates of their involvement. The Plaintiff is further advised that in drafting her second amended complaint, all that is required is that she state, in short and plain terms, a claim showing an entitlement to relief. Although she must give the Defendants fair notice of the claims alleged against them, intricately detailed and lengthy factual allegations are not necessary. The Plaintiff is further advised that the Federal Rules of Civil Procedure rely on discovery and summary judgment, rather than the pleadings, to flesh out the disputed facts of the case. Thus, if the amended complaint survives the screening process, the Plaintiff will have an opportunity to gather evidence in support of her claims during discovery and to present that evidence at summary judgment and/or at trial. Finally, the Plaintiff is advised that if she files an amended complaint, the original complaint no longer serves any function in the case. As such, if she files an amended complaint, each claim and the involvement of each Defendant must be alleged sufficiently. The Court cannot refer to a prior pleading or to other documents to make her amended complaint complete. The amended complaint must be complete in and of itself without reference to prior pleadings or to other documents. Based on the foregoing, Judge Hoffman granted the Plaintiff's application to proceed in forma pauperis. The Clerk of Court must detach and file the Plaintiff's complaint. The Plaintiff's complaint be dismissed without prejudice for her to file an amended complaint solely on her behalf or to obtain an attorney to represent the class. The Plaintiff's deadline for filing the amended complaint is May 2, 2019. Failure to file an amended complaint by that deadline will result in a recommendation that her case be dismissed. A full-text copy of the Court's April 2, 2019 Order is available at https://is.gd/8rDF5Y from Leagle.com. Jody Williams, doing business as Sex Workers Anonymous, Plaintiff, pro se. Trafficking and Prostitution Services, both projects under the umbrella of the nonprofit 501c3 corporation OMNI-SCII, Plaintiff, pro se. UQM TECHNOLOGIES: Plaintiffs Agrees to Dismiss Merger Related Suits ------------------------------------------------------------------- UQM Technologies, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on April 16, 2019, that plaintiffs in the lawsuits related to the Danfoss Power Solutions merger transaction have agreed to voluntarily dismiss the cases. On January 21, 2019, UQM Technologies, Inc. ("UQM", or the "Company") entered into an Agreement and Plan of Merger (the "Merger Agreement") with Danfoss Power Solutions (US) Company, a Delaware corporation ("Danfoss"), and Danfoss-2019 Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Danfoss (the "Merger Sub"). Under the terms of the Merger Agreement, Merger Sub will be merged with and into the Company (the "Merger"), as a result of which the Company will continue as the surviving corporation and a wholly-owned subsidiary of Danfoss. On March 7, 2019, the Company filed with the Securities and Exchange Commission (the "SEC”) a definitive proxy Statement (the "Definitive Proxy Statement") with respect to the special meeting of UQM shareholders scheduled to be held on April 23, 2019 (the "Special Meeting") to vote on a proposal to approve the Merger Agreement, among other actions. Six legal complaints, including four putative class actions, were filed in Colorado by purported stockholders of UQM challenging the Merger. Five of the six actions were filed in the United States District Court for the District of Colorado. These actions are: (i) Carter v. UQM Technologies, Inc., et al., No. 19-cv-502; (ii) Lopez v. UQM Technologies, Inc., et al., No. 19-cv-543; (iii) ETS Logistics Inc. v. UQM Technologies, Inc., et al., No. 19-cv-602; (iv) Poston v. UQM Technologies, Inc., et al., No. 19-cv-648; and (v) Arukala v. UQM Technologies, Inc., et al., No. 19-cv-650. The single Colorado state court case is Franchi v. Vanlandingham, et al., No. 19-cv-30217 (Weld County, Co.). On March 11, 2019, following mailing of the Definitive Proxy Statement, a seventh complaint, a putative class action, was filed in the United States District Court for the Southern District of New York, captioned Gunderson v. UQM Technologies, Inc., et al., No. 19-cv-2219 (S.D.N.Y.) (collectively, such state and federal actions are referred to herein as the "Lawsuits"). The six federal lawsuits assert claims under Section 14(a) and Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule 14a-9 promulgated thereunder, based on an alleged failure to disclose certain information in the February 22, 2019 preliminary proxy statement and the March 7, 2019 Definitive Proxy Statement filed with the SEC. The state lawsuit (Franchi) alleges, among other things, that the Company's Directors' failure to disclose certain information in the Company's February 22, 2019 preliminary proxy statement constituted a breach of fiduciary duty. Carter and Franchi also include other breach of fiduciary duty claims against the Company's Directors in connection with the Merger. Carter, Franchi, Poston, Arukala, and Gunderson seek, among other things, certification of a plaintiff class. All of the Lawsuits seek: (i) injunctive relief to prevent the parties from proceeding with, consummating, or closing the Merger Agreement and the subsequent merger contemplated by the Merger Agreement unless certain omitted information is disclosed in the proxy statement; (ii) an accounting by the Defendants for alleged damages sustained by the plaintiffs; and (iii) unspecified costs and attorneys' and experts' fees. UQM continues to believe that the claims asserted in the Lawsuits are without merit, and further believes that no supplemental disclosure is required under applicable law. However, UQM has determined that, to avoid the risk of litigation delaying or adversely affecting the Merger, UQM will make a supplemental disclosures. The plaintiffs in Carter, Franchi, ETS Logistics, Arukala, and Gunderson have agreed to voluntarily dismiss all claims asserted in their Lawsuits. Plaintiff's counsel in Poston also agreed to voluntarily dismiss all claims asserted in that Lawsuit, subject to confirmation by the plaintiff. A copy of the supplemental disclosure is available at https://urlzs.com/KPrF. UQM Technologies, Inc., together with its subsidiaries, develops, manufactures, and sells electric motors, generators, power electronic controllers, and fuel cell compressors in the United states and internationally. UQM Technologies, Inc. was founded in 1967 and is headquartered in Longmont, Colorado. VALE SA: Bid to Dismiss Samarco Bondholders Suit Still Pending -------------------------------------------------------------- Vale S.A. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on April 18, 2019, for the fiscal year ended December 31, 2018, that the motion to dismiss the class action suit initiated by holders of bonds issued by Samarco is still pending. Vale, together with Samarco and BHP Billiton Brasil Ltda. (BHPB), was named as defendant in class action alleging violations of U.S. federal securities laws brought by holders of bonds issued by Samarco in the U.S. Federal Court for the Southern District of New York. The defendants filed a joint motion to dismiss the complaint, and a decision on this motion is still pending. Discovery will not commence until after the court rules on the defendants' pending motion to dismiss. Vale S.A., together with its subsidiaries, produces and sells iron ore and iron ore pellets for use as raw materials in steelmaking in Brazil and internationally. It operates through Ferrous Minerals, Coal, and Base Metals segments. The company was formerly known as Companhia Vale do Rio Doce and changed its name to Vale S.A. in May 2009. Vale S.A. was founded in 1942 and is headquartered in Rio de Janeiro, Brazil. VALE SA: Discovery Ongoing in ADR Investors' Suit ------------------------------------------------- Vale S.A. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on April 18, 2019, for the fiscal year ended December 31, 2018, that the securities class action suit related to the company's American Depositary Receipts (ADRs) is still in discovery phase. Vale and certain of its officers were named as defendants in a securities class action in the U.S. Federal Court for the Southern District of New York brought by holders of Vale's American Depositary Receipts (ADRs) under U.S. federal securities laws. In March 2017, the judge issued a ruling dismissing a significant part of the claims against the company and the individual defendants, and allowing the case to continue based on more limited claims. The claims that were not dismissed relate to certain statements contained in the Company's 2013 sustainability report concerning risk mitigation plans, policies and procedures, and certain statements made in a conference call in November 2015 concerning Samarco. This lawsuit is currently in the discovery phase. No further updates were provided in the Company's SEC report. Vale S.A., together with its subsidiaries, produces and sells iron ore and iron ore pellets for use as raw materials in steelmaking in Brazil and internationally. It operates through Ferrous Minerals, Coal, and Base Metals segments. The company was formerly known as Companhia Vale do Rio Doce and changed its name to Vale S.A. in May 2009. Vale S.A. was founded in 1942 and is headquartered in Rio de Janeiro, Brazil. VALE SA: Suits Over Fundao Dam Collapse Ongoing ----------------------------------------------- Vale S.A. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on April 18, 2019, for the fiscal year ended December 31, 2018, that the company continues to defend itself against class action lawsuits related to the operations of Samarco's Fundao dam. The company and certain of its officers have been named as defendants in civil class action suits in federal courts in New York brought by holders of the company's securities and by holders of Samarco's bonds, each under U.S. federal securities laws. The plaintiffs allege that the company made false and misleading statements or omitted to make disclosures concerning the risks of the operations of Samarco's Fundao dam and the adequacy of the related programs and procedures. The plaintiffs have not specified an amount of alleged damages in these actions. Vale said, "We believe that the claims have no merit, and we will continue contesting them. However, given the preliminary status of the actions, it is not possible to determine a range of outcomes or reliable estimates of the potential exposure at this time, and no provision has been recognized so far." Vale S.A., together with its subsidiaries, produces and sells iron ore and iron ore pellets for use as raw materials in steelmaking in Brazil and internationally. It operates through Ferrous Minerals, Coal, and Base Metals segments. The company was formerly known as Companhia Vale do Rio Doce and changed its name to Vale S.A. in May 2009. Vale S.A. was founded in 1942 and is headquartered in Rio de Janeiro, Brazil. VICE MEDIA: Settles Pay Discrimination Class Action for $1.87MM --------------------------------------------------------------- Eriq Gardner, writing for Hollywood Reporter, reports that Vice has agreed to a $1.875 million deal to resolve a class action lawsuit brought by some of the media company's female workforce. The proposed settlement was quietly submitted for approval to a Los Angeles Superior Court judge on March 25. By the looks of the court papers, Vice was likely saved from paying millions more because the company tends to employ younger women. Elizabeth Rose was one of the named plaintiffs leading the charge that Vice violated New York and California equal pay laws. According to the complaint, she was employed as a channel and project manager between April 2014 and February 2016. After the filing, other women came forward and joined the suit, including former managing editor Alyson Comingore, former assistant editor Zoe Miller and former copywriter Averie Timm. The suit alleges that Vice failed to pay men and women equally for similar work because Vice relied on prior salaries. The pay gap is said to be perpetuated as female employees moved within the organization. For instance, the complaint details how Rose hired a male project manager in 2015 for a joint project and despite the fact that the two were the same age and had similar work experience, Rose earned less than that man, who subsequently rose through the ranks of the company. Vice denies there was ever a centralized practice of using prior salary history to determine pay rate, but after mediation in the case, the company has decided to settle claims with a class of female employees estimated to be about 675 individuals. Subtracting the $650,000 earmarked for lawyers as well as the $15,000 service fees for each of the named plaintiffs in the case, that leaves $1.075 million to Vice's female employees in New York and California during the relevant time period. The average payout will be about $1,600 (minus taxes), though payouts will depend on factors including service time and job classifications. The court papers say that more than 60 witnesses were interviewed for this litigation, and Vice agreed to provide anonymized data about salaries of employees dating back to 2012. The plaintiffs then hired a statistician to determine if there were any statistically significant pay disparities between men and women. "According to Plaintiff's expert, when controlling for job family/level, tenure, and work location, the amount of underpaid wages to female employees appeared to range between $7,000,000 and $9,740,000," states the motion to approve the settlement. And but . . . "When the age of the employee is factored in to account for differences in years of experience in the labor market, however, the potential disparities plummeted to well-below one-million dollars." As such, the plaintiffs put aside any issue over how Vice apparently loves younger female staffers, to frame the settlement as being between 19 percent to over 200 percent of the total wages believed to be owed. "This is a fair and reasonable result given the legal and factual hurdles," writes attorney Michael Morrison at Alexander Krakow, who in his brief nodded to Vice's contention that compensation decisions were made not by a centralized group of decision-makers but rather managers within departments exercising independent discretion during a time of rapid expansion. After the lawsuit came amid news reports about Vice's culture favoring men, Nancy Dubuc took the reins of the company from Shane Smith with a plan to fix the media pioneer. Don't expect her to publicly comment about the settlement, however. The agreement includes the stipulation that neither side is to contact the press about the resolution or post any information about it online, and if contacted to say only that the matter has been settled. Nevertheless, a Vice spokesperson provided the following comment: "Vice's new management team is committed to maintaining a workplace where all employees are compensated equitably. This is why we provided our employees with the results of the company's pay equity analysis, and have also settled the Rose case whereby we resolve any claimed historical disparities. We are dedicated to the equitable treatment of all people and we look forward to the Court's approval of the settlement so that we can continue to fulfill this mission." [GN] WELLS FARGO: Court Dismisses Juan Olivo's Suit Without Prejudice ---------------------------------------------------------------- In the case, JUAN OLIVO, ANA J. OLIVO, and CATHERINE SOBERS, on their behalf and on behalf of a class of persons similarly situated. Plaintiffs, v. WELLS FARGO BANK, N.A., Defendant, Case No. 18-CV-3222 (AMD) (LB) (E.D. N.Y.), Judge Ann M. Donnelly of the U.S. District Court for the Eastern District of New York granted Wells Fargo's motion to dismiss the Plaintiffs' complaint for failure to state a claim. On June 1, 2018, the Named Plaintiffs brought the class action against Wells Fargo, alleging a breach of the implied covenant of good faith and fair dealing, fraud, and violations of the New York Deceptive Practices Act, and the Equal Credit Opportunity Act. In May of 2006, Juan and Ana Olivo took out a mortgage to purchase a home at 96 Queen Street, Staten Island, NY 10314. CSMC Mortgage-Backed Pass-Through Certificates, Series 2006-9 trust held the Olivos' mortgage note, and Wells Fargo acted the CSMC Trust's servicer. In early 2008, due to a reduction in Mr. Olivo's pay, the Olivos "struggled to pay their $4,452.40 mortgage payment;" they contacted Wells Fargo seeking a loan modification, and were told that they would need to stop making payments to qualify for a loan modification. According to the Plaintiffs, the Olivos followed Wells Fargo's instruction, stopped making payments, and then applied for a loan modification. Wells Fargo denied that request, as well as the Olivos' subsequent requests for loan modifications. The Plaintiffs claim that Wells Fargo's reasons] for denial have been a moving target and changed over time depending on the programs that were available. On July 26, 2006, Catherine Sobers took out a mortgage to purchase a home located at 114-09 27th Street, Cambria Heights, NY 11411. The Wells Fargo Asset Securities Corp., Mortgage Pass-Through Certificates, Series 2006-15 ("WFASC Trust") acquired Ms. Sobers' mortgage note; Wells Fargo serviced the WFASC Trust. In 2008, Ms. Sober could not pay her monthly mortgage amount of $2,764.13, and sought a loan modification from Wells Fargo. Wells Fargo granted her a loan modification under HAMP that required her to make three trial payments of $2,375.74, and allegedly told her that once they received the three payments, her loan would be permanently modified. Ms. Sobers made the three payments in September, October and November of 2009, but did not receive permanent modification on her loan. Ms. Sobers claims that she has submitted more than six loan modification applications, none of which Wells Fargo granted. The Plaintiffs brought the class action on June 1, 2018, alleging that the Defendant misrepresented the purported restrictions on its ability to modify their loan, and that it has modified other loans governed by the same Pooling and Servicing Agreement. They also allege that the Defendant "ran out the clock" on any HAMP modification to which they would be entitled to, by failing to agree to a loan modification before the program's December 31, 2016 expiration. They assert that the Defendant's representations led them to believe that they could not obtain a loan modification and as a result, their interest accrued and amounts owed on their mortgages increased. On June 4, 2018, the Plaintiffs moved for an emergency temporary restraining order to stay the auction of their properties; two days later, Jude Donnelly heard the motion, granted the temporary restraining order, and scheduled a preliminary injunction hearing. On June 20, 2018, after a hearing, she denied the Plaintiffs' motion for a preliminary injunction, and on Aug. 23, 2018, the Defendant moved to dismiss the complaint. Judge Donnelly finds that the complaint is devoid of any allegations that the Plaintiffs had an enforceable contract with Wells Fargo that could create an implied covenant of good faith and fair dealing; accordingly, the Plaintiffs' claim for breach of the implied covenant is dismissed. She then finds that the Plaintiffs' failure to plead the alleged fraudulent misstatements with specificity is fatal to their claims. Their state and federal law fraud claims are dismissed. She also finds that the Plaintiffs' allegations relate to their individual mortgages, and do not suggest that Wells Fargo's acts or practices had a broader impact on consumers. Hence, the Plaintiffs' Deceptive Practices Act claim is dismissed. Finally, the Plaintiffs allege that the Defendant violated the Equal Credit Opportunity Act ("ECOA") when it denied their loan modification requests without providing them with "a statement of reasons" within 30 days after receiving the requests. The Judge dismissed the Plaintiffs' ECOA claim. She finds that the Olivos' loan modification requests -- with the exception of their initial inquiry seeking modification in early 2008 -- were made after the Olivos defaulted, and thus, do not trigger the ECOA's adverse action "statement of reasons" requirement. Likewise, Ms. Sobers requested loan modifications only after she had already engaged in trial payments and was in default; these requests do not fall within the ambit of the ECOA. Accordingly, Judge Donnelly granted the Defendant's motion to dismiss, and dismissed the complaint without prejudice. If the Plaintiff chooses to file an amended complaint, it must cure the deficiencies discussed in the decision and be filed within 30 days from the entry of the Order, or the case will be closed. A full-text copy of the Court's March 29, 2019 Memorandum Decision and Order is available at https://is.gd/MryCkL from Leagle.com. Juan Olivo & Catherine Sobers, Plaintiffs, represented by Brian McCaffrey -- info@MyNYLawFirm.com -- Brian McCaffrey, Attorney at Law. Wells Fargo Bank, N.A., Defendant, represented by Allison J. Schoenthal -- allison.schoenthal@hoganlovells.com -- Hogan Lovells US LLP, Cameron Everett Grant -- cameron.grant@hoganlovells.com -- Hogan Lovells US LLP & Chava Brandriss -- chava.brandriss@hoganlovells.com -- Hogan Lovells US LLP. WEST MIAMI: Suarez et al. Seek Unpaid Overtime Wages ---------------------------------------------------- HECTOR SUAREZ, OSMEL A. FUENTES, YANSELL C. UGARDE, and other similarly-situated individuals, the Plaintiffs, vs. WEST MIAMI TOWING SERVICE, INC. and JORGE LUIS LOPEZ, individually, the Defendants, Case No. 1:19-cv-21195-RNS (S.D. Fla., March 29, 2019), seeks to recover money damages for unpaid overtime wages, and retaliation under the Fair Labor Standards Act. The Plaintiffs, and all other current and former employees similarly situated to Plaintiff worked in excess of 40 hours during one or more weeks on or after October 2017, without being compensated minimum and overtime wages pursuant to the FLSA. The Plaintiffs were hired at different dates, they worked different schedules, and they were fired from their positions at different date, but all Plaintiffs were subjected to the same illegal employment practices of Defendants, the lawsuit says. The Defendant is a towing company operating a 24/7 road side assistance in Miami-Dade, and Monroe County.[BN] Attorney for the Plaintiffs: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 E-mail: zep@thepalmalawgroup.com YALE UNIVERSITY: Faces Class Action Over Admissions Scandal ----------------------------------------------------------- Skakel McCooey, writing for Yale Daily News, reports that calling Yale's admissions process "warped and rigged by fraud," two students and their parents have filed a class-action lawsuit against Yale and other universities and individuals implicated in the admissions scandal. Defendants include seven other universities, William "Rick" Singer -- the scandal's ring-leader -- and Singer's for-profit college counseling organization. A previous complaint filed by two Stanford University students was submitted earlier in March and dismissed "without prejudice" -- meaning that a new lawsuit can be filed. The new complaint -- a full version of which was filed in federal court in California on March 15 -- was filed by two college students, Tyler Bendis and Nicholas James Johnson, and their parents. Earlier in March, the Department of Justice indicted at least 50 individuals, including former women's soccer coach Rudy Meredith, for cheating the admissions process to gain spots at Yale and other top universities 00 the largest admissions scandal in recent history. The class-action lawsuit seeks reimbursement for the application fees paid by applicants who "without any understanding or warning" lacked the knowledge that "unqualified students were slipping in through the back door of the admissions process by committing fraud, bribery, cheating, and dishonesty." Yale's application fee is $80 per applicant. Documents from the lawsuit obtained by the News claim that the universities mentioned in the lawsuit were negligent in their failure to prevent this fraud. University spokesperson Tom Conroy did not respond to multiple requests for comment. Johnson, who is currently enrolled as a student in the Honors College at Rutgers University, had a 1500 out of 1600 on his SAT and a 4.65 GPA -- a weighted score because of Advanced Placement classes. He was rejected from Yale -- as well as from University of Texas at Austin and Stanford -- despite securing high test scores, playing varsity hockey and being the "star" of the school math team, the lawsuit claims. Bendis, now a community college student in California, was turned away from Stanford, University of San Diego and University of California, Los Angeles. According to the lawsuit, had the students known the admissions systems for these universities were as corrupt as the processes allegedly were, they would never have applied in the first place. David Levine, a professor at University of California Hastings College of the Law told the News that a lawsuit which asked for more damages -- like asking for the value of a Yale education in damages -- would be "extremely unlikely." However, Levine, who is an expert in civil procedure and remedies, said that a lawsuit asking for a refund in application fees could be more successful. "I could see that one winning," he said. However, he noted that the plaintiffs will have to prove that knowledge of the scandal's existence would have changed the applicants' behavior. He added that it would be likely that students would have to swear "on the penalty of perjury" that they would not have applied had they known about the scandal. This requirement may deter some students from trying to recoup their application fees, he supposed. University of Notre Dame law professor Jay Tidmarsh told the News that lawsuits following accusations of fraud are "not unusual." He said class-action lawsuits especially make sense when the amount of damages is relatively small, but collectively the amount is large. According to the complaint, application fees typically range from $50 to $100, and the schools typically reject tens of thousands of applicants. If the lawsuit is successful, the potential payout for universities could be in the millions. John Medler, one of the lawyers who filed the lawsuit, told the News that he had "no comment" on the suit's chances. The University of Southern California, Stanford, UCLA, University of San Diego, University of Texas at Austin, Wake Forest University and Georgetown University are also named in the lawsuit. [GN] ZTO EXPRESS: Bid to Dismiss Nurlybayev Class Suit Remains Pending ----------------------------------------------------------------- ZTO Express (Cayman) Inc. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on April 16, 2019, for the fiscal year ended December 31, 2018, that the joint motion to dismiss the amended complaint in Nurlybayev v. ZTO Express (Cayman) Inc., et al., remains pending before the Court. Starting in May 2017, the company and certain of directors and officers, and the underwriters of the company's initial public offering in October 2016 (the "Underwriter Defendants") have been named as defendants in Nurlybayev v. ZTO Express (Cayman) Inc., et al., 1:17-cv-06130 (S.D.N.Y., filed on August 14, 2017). On October 16, 2017, three sets of purported shareholders filed motions to appoint themselves as lead plaintiffs of the purported plaintiff class and appoint their designated counsel as lead counsel. On November 13, 2017, the court appointed a lead plaintiff and approved the lead plaintiff's selection of lead counsel. On January 8, 2018, the lead plaintiff filed an amended complaint. On February 20, 2018, the company and the Underwriter Defendants filed a joint motion to dismiss the amended complaint, which remains pending before the Court. ZTO Express (Cayman) Inc. provides express delivery and other value-added logistics services in the People's Republic of China. The company offers delivery services for e-commerce and traditional merchants, and other express service users. As of December 31, 2018, it operated a fleet of approximately 4,500 self-owned trucks. ZTO Express (Cayman) Inc. was founded in 2009 and is headquartered in Shanghai, the People's Republic of China. ZTO EXPRESS: Birmingham Retirement & System Suit Still Stayed ------------------------------------------------------------- ZTO Express (Cayman) Inc. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on April 16, 2019, for the fiscal year ended December 31, 2018, that the case entitled, Birmingham Retirement and Relief System v. ZTO Express (Cayman) Inc., et al., remains stayed. Starting in May 2017, the company and certain of directors and officers, and the underwriters of the company's initial public offering in October 2016 (the "Underwriter Defendants") have been named as defendants in City of Birmingham Retirement and Relief System v. ZTO Express (Cayman) Inc., et al., 01-CV-2017-902004.00 (Cir. Ct. Jefferson County Ala., filed on May 16, 2017). On June 28, 2017, the company removed the Alabama Action to the federal District Court for the Northern District of Alabama and the Underwriter Defendants joined in the removal. On July 14, 2017, City of Birmingham Retirement and Relief System filed a Motion to Remand the Alabama Action back to state court. On August 4, 2017, the company and the Underwriter Defendants submitted a joint Motion to Change Venue, requesting the court to transfer the Alabama Action to the federal District Court for the Southern District of New York. On August 29, 2017, the court issued an order staying the proceedings of the Alabama Action pending the United States Supreme Court's decision in Cyan, Inc. v. Beaver Cty. Employees Ret. Fund, and denying without prejudice City of Birmingham Retirement and Relief System's Motion to Remand and our company and the Underwriter Defendants' Motion to Change Venue. On April 17, 2018, City of Birmingham Retirement and Relief System filed a motion to lift stay and remand the Alabama Action back to state court, which motion was granted by the court on April 18, 2018. On May 9, 2018, the plaintiff and defendants filed a joint motion to stay the Alabama Action in favor of the New York Action. The court granted that motion on August 9, 2018, and the case remains stayed. ZTO Express (Cayman) Inc. provides express delivery and other value-added logistics services in the People's Republic of China. The company offers delivery services for e-commerce and traditional merchants, and other express service users. As of December 31, 2018, it operated a fleet of approximately 4,500 self-owned trucks. ZTO Express (Cayman) Inc. was founded in 2009 and is headquartered in Shanghai, the People's Republic of China. ZTO EXPRESS: Guo and McGrath Suits Remain Stayed ------------------------------------------------ ZTO Express (Cayman) Inc. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on April 16, 2019, for the fiscal year ended December 31, 2018, that the lawsuits captioned as, Guo v. ZTO Express (Cayman) Inc., et al. and McGrath v. ZTO Express (Cayman) Inc., et al., remain stayed. Starting in May 2017, the company and certain of directors and officers, and the underwriters of the company's initial public offering in October 2016 (the "Underwriter Defendants") have been named as defendants in Guo v. ZTO Express (Cayman) Inc., et al., 17 Civ. 03676 (Sup. Ct. Mateo County Ca., filed on August 11, 2017) and McGrath v. ZTO Express (Cayman) Inc., et al., 17 Civ. 03805 (Sup. Ct. Mateo County Ca., filed on August 21, 2017). On September 15, 2017, the company removed the Guo Case and McGrath Case to the federal District Court for the Northern District of California and the Underwriter Defendants consented to the removal. Also on September 15, 2017, the company and the Underwriter Defendants filed a joint motion to transfer in the Guo Case and McGrath Case, requesting the court to transfer the two cases to the federal District Court for the Southern District of New York. On September 26, 2017, the plaintiffs filed motions to remand these two cases back to state court. On December 22, 2017, the court granted plaintiffs' motions to remand and denied the company's and Underwriter Defendants' joint motion to transfer. On February 15, 2018, the company and the Underwriter Defendants filed a joint motion to stay the Guo Case and McGrath Case in state court. On April 24, 2018, the court granted the Company and the Underwriter Defendants' motion, and the case remains stayed. ZTO Express (Cayman) Inc. provides express delivery and other value-added logistics services in the People's Republic of China. The company offers delivery services for e-commerce and traditional merchants, and other express service users. As of December 31, 2018, it operated a fleet of approximately 4,500 self-owned trucks. ZTO Express (Cayman) Inc. was founded in 2009 and is headquartered in Shanghai, the People's Republic of China. [*] Nick Sherry Expects Superannuation Fee Gouging to Continue -------------------------------------------------------------- Joanna Mather, writing for Australian Financial Review, reports that fee gouging in superannuation will continue unless inactive accounts above $6000 are consolidated and insurance is limited to life cover, former Labor assistant treasurer Nick Sherry says. He said new laws enabling the consolidation of inactive accounts worth $6000 or less were a good start but the onus was on the next federal Parliament to progressively raise that threshold. Mr Sherry, who served as superannuation minister in the Rudd government, also believes the sole purpose test should be updated to make it unlawful for super funds to offer disability and income protection insurance. "If the argument is that you need higher contributions then why are we reducing retirement income via insurance premiums?" His rationale is that premiums for disability and salary continuance insurance are eroding member returns when safety nets exist outside the super system in the form of the National Disability Insurance Scheme and Newstart Allowance. "The cost of insurance comes off your retirement income," Mr Sherry said. "If the argument is that you need higher contributions then why are we reducing retirement income via insurance premiums? These are fundamental questions to be asking in the context of any examination of the sole purpose test." Unintended multiple accounts were "a blight on the system", Mr Sherry said. "At the moment it's $6000 or less, but I predict that will go up the scale." Mr Sherry, who helped establish Hostplus during his earlier career as a trade unionist, also believes poor-performing funds are exposed to legal action from members. Regulators are turning to the courts, with the Australian Securities and Investments Commission threatening to sue 30 sub-par super funds. Meanwhile, Slater & Gordon has launched a class action against the Commonwealth Bank's super fund, alleging a breach of trust when it tipped members' money into an inferior cash product. Serious concern Mr Sherry will tell an event hosted by wealth and asset management business Northern Trust in Sydney on Wednesday that there is more to come in this space. "If I was a member in a sub-performing industry fund and I discovered in 10 years' time that there was evidence the fund was a sub-performer, I would be pretty angry about it and I'd be contemplating legal action," he said. "This is a serious concern for retail trustees post-Hayne. But it is also a serious concern for trustees in under-performing [industry and public sector] funds." Slater & Gordon insists its claim against CBA's Colonial First State super products could exceed $100 million and include hundreds of thousands of members. It was sparked by evidence heard during the royal commission that Colonial First State invested members' money with CBA even though better returns were available from other banks. The Productivity Commission found the biggest problems in super to be unintended multiple accounts and entrenched under-performance by more than 30 funds. But it did not identify the miscreants. Karen Chester, who led the Productivity Commission review before joining ASIC, said the corporate regulator would act against super trustees using recent legislative changes introducing civil penalties for financial services licence holders who fail to act "efficiently, honestly and fairly". Independent inquiry The Australian Prudential Regulation Authority identified 18 months ago 28 "outlier" funds. It is not clear whether the funds on APRA's hit list are the same as those on ASIC's. Thirteen of the outlier funds have agreed to restructure or exit, another four have revised their fees and two are no longer considered to be bad eggs, APRA deputy chairman Helen Rowell said in March. Of the nine remaining, three had not "responded adequately", and these would soon be resolved, she said. According to the Productivity Commission, 12 million people have insurance through their super. It recommended an independent inquiry to examine the role of insurance in super. New legislation requires the transfer of all super balances below $6000 to the Australian Tax Office if an account has been inactive for a continuous period of 13 months. The commissioner will proactively pay amounts held by the ATO into a members' active account. The Coalition is also seeking to end default insurance arrangements for under-25s but has not managed to pass legislation. [GN] [*] UCBA Sponsors Assembly Bill 1417 to Curb Illegal Cannabis Ads ----------------------------------------------------------------- As California's leading legal cannabis business trade association, the United Cannabis Business Association (UCBA) announces sponsorship of Assembly Bill 1417 by Assemblymember Blanca Rubio. Assembly Bill 1417 will attempt to reign in rampant advertisements for illegal and unlicensed cannabis businesses in California, beginning with the first steps in the California State Legislature. The bill which would create civil penalties and injunctive relief against webpages, apps and other forms of digital advertisement that promote unlicensed cannabis business activity without prominently including an active state license. Jerred Kiloh, President of the UCBA stated "since voters approved Proposition 64, which allows legal, licensed and regulated cannabis operations, the illegal cannabis market has flourished and this unchecked ability to advertise has given these illegal activities a huge advantage over legal operators. Consumers have no way of determining if the cannabis retailer they visit is safe, legal or licensed. This means, the products are most likely not tested and that illegal operators are not being held accountable to anyone, including the police." AB 1417 will attempt to distinguish legal operators from illegal operators on popular webpages like Weedmaps, an advertiser that consumers use to find and purchase cannabis products. Additionally, billboards and other advertisements can direct consumers to potentially illegal operations and untested products. A benefit of AB 1417 is that it allows a civil class action lawsuit because of the large number of potentially aggrieved persons who have been impacted by the illegal advertisements. Kiloh continued, "the total lack of regulation is creating a massive public safety and public health issue in the City of Los Angeles and throughout California. They are fooling consumers, state and local regulators. It's not safe, it's not what voters approved." About UCBA From introducing ballot measures locally and legislation at the state, to taxation issues, licensing and social equity programs, the UCBA is the leading voice for legal cannabis in California. www.ucba.com [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. 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