/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190508.mbx C L A S S A C T I O N R E P O R T E R Wednesday, May 8, 2019, Vol. 21, No. 92 Headlines 3M COMPANY: Holloway Suit Removed to C.D. California AIRGAS USA: Lit'l Pepper Sues over Misleading Fuel Surcharge ALDI INC: Gant Suit Removed to C.D. California ALLIANCE ONE: Placeholder Bid for Class Certification Filed ALLIED INTERSTATE: Placeholder Bid for Class Certification Filed ALTA DENA CERTIFIED: Underpays Material Handlers, Padilla Alleges AMAZING HOME: Rivas Seeks Conditional Class Certification AMERICAN RENAL: May 28 Lead Plaintiff Motion Deadline Set AMERICAN RENAL: Rosen Law Firm Files Suit Over Faulty Accounting APPLE INC: Faces Class Action Over Defective Apple Watch Models AREAS USA LAX: Cazares Suit Removed to C.D. California ARKANSAS TOTAL: Court Certifies Class of Care Coordinators AVIS BUDGET: NJ Court Affirms Protective Order in Mendez BANK OF MONTREAL: Fire Pension Assoc. Appeals Suit Dismissal BARRIER TECHNOLOGIES: Fails to Pay Overtime Wages, Brown Suit Says BOSE: Must Face Class Action Over Connect App BP EXPLORATION: Dismissal With Prejudice of Wiggins Recommended CANADA: Faces Class Action Over Phoenix Pay System CANADA: NAN Provides Info on Indian Day School Settlement CANADA: Plaintiffs' Counsel to Appeal Class Action Against WRPS CAPITAL MANAGEMENT: Class Certification Bid in Wolf Case Shelved CAPITAL MANAGEMENT: Placeholder Bid for Class Certification Filed CARD ONE: Fromer Chiropractic Sues Over Unsolicited Advertisements CHARTER COMMS: Burke Law Named Interim Lead Counsel in Leeb Suit CITRIX SYSTEMS: Boger Sues Over Automated Telemarketing Calls CREDIT PROTECTION: Bid to Certify Class in McRobie Partly Granted CRUNCH LLC: Eacret Suit Status Conference Continued to July 18 CURTISS-WRIGHT CORP: Schenck Moves to Certify Class of Applicants CVS PHARMACY: Pension Funds Seek to Certify Classes DALLAS COUNTY ADJUSTERS: Blair Seeks Unpaid Minimum, Overtime Wages DEITSCH AND WRIGHT: Florida Class Certified in McCray FDCPA Suit EMPLOYER FLEXIBLE: Faces Lopez Suit over Background Checks EPIC SYSTEMS: Faegre Baker Discusses Arbitration Ruling FARM BUREAU: Chavez Seeks to Certify Insurance Agent Class FELICITY HUFFMAN: To Plead Guilty in College Admissions Case FLEX LTD: Order Naming Lead Plaintiff/Counsel in Kipling Vacated GAYLOR ELECTRIC: Hodge Suit Removed to E.D. Washington GENERAL ATLANTIC: Securities Class Action Dismissal Affirmed GODADDY.COM: Judge Certifies Class in Telemarketing Lawsuit GOOGLE INC: Moore & Van Discusses Cy Pres Ruling GREATBANC TRUST: Settles ERISA Class Action for $2.3MM HAROLD CLARKE: Court Denies 2nd Motion to Certify Class HOME DEPOT: Camp Suit Removed to N.D. California HUNTINGTON BANCSHARES: Status Hearing Set for May 31 HUNTINGTON NATIONAL: Court Grants Bid to Dismiss Mustric Suit HUNTINGTON NATIONAL: Hannah Seeks to Certify FLSA Collective Action INTERCOAST COLLEGES: Court Compels Arbitration in Kourembanas INTERNATIONAL LASER: Alvarado Seeks Class Cert. Under FLSA, BIPA KIA MOTORS AMERICA: Faces De Anda Suit over Defective Automobile LARIO OIL: Hancock Seeks to Conditionally Certify FLSA Class LEXUS OF NEW ORLEANS: Court Dismisses Kimble Suit With Prejudice M/A/R/C RESEARCH: Placeholder Bid for Class Certification Filed MANN PACKING: Anguiano Suit Removed to N.D. California MARTINFEDERAL CONSULTING: Beavers Sues Over Unpaid Overtime Wages MATRIX MEDICAL: Gasperak Suit Removed to M.D. Florida MDL 2804: ND Counties Suit Consolidated in Opiate Litigation MDL 2886: Harmel Suit Consolidated in Allura Fiber Litigation MERCURY GENERAL: MAO-MSO et al. Seek to Certify Class MICROCHIP TECH: Schuman et al Seek to Certify Atmel Employees Class MIDLAND CREDIT: Placeholder Bid for Class Certification Filed MONSANTO CO: Graves Sues Over Roundup(R)-Related Injuries MULTIFAMILY INTERNET: Ehrman Suit Removed to C.D. California NATIONWIDE CREDIT: Placeholder Bid for Class Certification Filed NATURAL HEALTH: Class Action Law Firm Gets Dozens of Inquiries NAVIHEALTH INC: Bid to Certify Collective Action Denied NELSON TREE: Non-Exempt Workers Class Certified in Neville Suit NESTLE WATERS: Says Poland Spring Class Action Meritless NIO INC: Wolf Haldenstein Files Securities Class Action Suit PACESETTERS, INC: Scantland Seeks to Conditionally Certify Class PAYCRON INC: Jackson Seeks to Certify Class PHILIP B WILLETTE: Malik Sues Over Unlawful Debt Collection R.BERG ENTERPRISES: Underpays Cashiers, Coronado Suit Alleges RE/MAX HOLDINGS: Antitrust Suit Filed Over Commissions RESOURCE MARKETING: Baudin et al. Seek to Certify FLSA Class RESOURCE MARKETING: Former Employees File FLSA Class Action RSM US: Ill. App. Reverses Dismissal of Securities Fraud Suit SETERUS INC: May 27 Barilla Class Certification Bid Filing Deadline SEVIER COUNTY, TN: Court Grants Class Certification in "Whitlock" SHAW'S SUPERMARKETS: Garlick Suit Removed to Mass. Dist. Ct. SINEMIA: Adds Class Action Waiver Clause to Terms of Service STAMPS.COM INC: Pomerantz Law Firm Files Shareholders' Suit SUNCOKE ENERGY: Faces Marks Suit over Merger Transaction TERRACE VIEW: Cal. App. Flips $57MM Punitive Damage Award in Bevis TRADER JOE'S: Calif. Court Strikes Down $1.3MM Tuna Class Action TRANS WORLD: Spack et al. Seek to Certify FLSA Class TRANSDEV SERVICES: Hakeem Suit Removed to N.D. California TRW AUTOMOTIVE: Samouris Sues Over Defective Airbag Control Units TWENTIETH CENTURY: Bid to Certify Class in TS Suit Continued TYME TECHNOLOGIES: Kuznicki Law Announces Class Action Suits U.S. TOBACCO COOPERATIVE: 4th Cir. Flips $24MM Settlement Approval UNIFUND CCR: Goldberg Sues over Debt Collection Practices UNITED BEHAVIORAL: Ct. Suggests Denial of Bid to Dismiss ERISA Suit UNITED HEALTHCARE: Dismissal of Count I in Kamins Suit Affirmed UNITED STATES: 9th Cir. Reverses Dismissal of Muslims' Suit vs. FBI UNITED STATES: Ackerman Seeks to Certify Class & Subclass UNITED STATES: Court Nixes Class Claims in Smith Prisoner Suit UNITED STATES: DHS Ordered to Turn Over Docs in DACA Class Action UNITED STATES: Oklahoma City NAACP to File Class Action v. DHS UNITED STATES: Veterans Affairs Responds to NVLSP's Class Action UTAH: May Seeks to Certify Class of Prisoners Suffering From HCV VALET INC: Underpays Parking Attendants, Lafleur et al. Allege WALT DISNEY: Faces Gender Pay Gap Class Action in California WARNER MUSIC: Ninth Circuit Appeal Filed in Williams Class Suit WELLS FARGO: Court Denies McDonald's Class Certification Bid WYNDHAM VACATON: Underpays Sales Representatives, Pagh Suit Says XTO ENERGY: Court Certifies Class of Drilling Consultants [*] Law to Expand Scope for Class Actions in Italy Approved ********* 3M COMPANY: Holloway Suit Removed to C.D. California ---------------------------------------------------- The case captioned JASON HOLLOWAY, individually, and on behalf of others similarly situated, Plaintiffs, v. 3M COMPANY, a Delaware corporation; and DOES 1 through 50, inclusive, Defendants, Case No. CIVDS1907761 was removed from the Superior Court for the State of California, County of San Bernardino to the United States District Court for the Central District of California on April 18, 2019, and assigned Case No. 5:19-cv-00708. Plaintiff (a current employee at one of the 3M California plants located in Oak Hills, California), filed this putative class action complaint alleging that 3M violated his rights protected by the California Labor Code.[BN] The Defendants are represented by: Maria C. Roberts, Esq. Dessi N. Day, Esq. GREENE & ROBERTS 402 West Broadway, Suite 1025 San Diego, CA 92101 Phone: (619) 398-3400 Facsimile: (619) 330-4907 Email: mroberts@greeneroberts.com dday@greeneroberts.com AIRGAS USA: Lit'l Pepper Sues over Misleading Fuel Surcharge ------------------------------------------------------------ LIT'L PEPPER GOURMET, INC., individually and on behalf of all others similarly situated, Plaintiff vs. AIRGAS USA, LLC, Defendant, Case No. 37-2019-00016827-CU-BT-CTL (Cal. Super., San Diego Cty., March 29, 2019) alleges that the Defendant unlawfully impose "Fuel Surcharge" to its customers. According to the complaint, the Defendant charges its California customers for the sale and delivery of its products a fee it calls a "Fuel Surcharge Flat." The term "Fuel Surcharge" has a specific and understood meaning. The Defendant uses the term "Fuel Surcharge" to create the false impression that the fee is a legitimate charge related to increased fuel costs Airgas USA incurs in delivering products to its customers. The Defendant's representations, omissions, and practices in charging the "Fuel Surcharge" are deceptive and unfair. The "Fuel Surcharge" bears absolutely no relation to the Defendant's actual increased fuel costs (or its actual fuel costs) and the Defendant does not use the proceeds from the "Fuel Surcharge" to offset its increased fuel costs (or its actual fuel costs). The amount of the "Fuel Surcharge" generally does not change, despite decreases in the Defendant's fuel costs. Further, the Defendant includes any increases in fuel costs it might incur in delivering products in the standard prices it charges customers. Airgas USA, LLC manufactures and distributes industrial gases, medical and specialty gases, welding supplies, and related safety products. It also offers nitrous oxide and supplies dry ice. The company was incorporated in 2011 and is based in Radnor, Pennsylvania. Airgas USA, LLC operates as a subsidiary of Airgas, Inc. [BN] The Plaintiff is represented by: John K. Landay, Esq. LANDAY ROBERTS LLP 101 West Broadway, Suite 300 San Diego, CA 92101 Telephone: (619) 230-5712 E-mail: jlanday@landayroberts.com - and - Michael A. Licari, Esq. SPRINKLE LLOYD & LICARI LLP 2801 B Street, Suite 556 San Diego, CA 92102 Telephone: (858) 717-0013 E-mail: mike@SL2Law.com ALDI INC: Gant Suit Removed to C.D. California ---------------------------------------------- The case captioned JEREE GANT, individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. ALDI, INC., a California corporation; AI CALIFORNIA LLC, an unknown business entity; and DOES 1 through 100, inclusive, Defendants, Case No. 19STCV04857 was removed from the Superior Court of the State of California for the County of Los Angeles, to the United States District Court for the Central District of California on April 22, 2019, and assigned Case No. 2:19-cv-03109. The Complaint asserts ten causes of action for: (1) Unpaid Overtime, (2) Unpaid Meal Period Premiums, (3) Unpaid Rest Period Premiums, (4) Unpaid Minimum Wages, (5) Final Wages Not Timely Paid, (6) Wages Not Timely Paid During Employment, (7) Non-Compliant Wage Statements, (8) Failure To Keep Requisite Payroll Records, (9) Unreimbursed Business Expenses, and (10) Violations of California Business & Professions ("Unfair Competition Law" or "UCL").[BN] The Defendants are represented by: Laura Wilson Shelby, Esq. Leo Q. Li, Esq. Jennifer R. Nunez, Esq. SEYFARTH SHAW LLP 2029 Century Park East, Suite 3500 Los Angeles, CA 90067-3021 Phone: (310) 277-7200 Facsimile: (310) 201-5219 Email: lshelby@seyfarth.com lli@seyfarth.com jnunez@seyfarth.com ALLIANCE ONE: Placeholder Bid for Class Certification Filed ----------------------------------------------------------- In the class action lawsuit captioned JULIAN ROZANI, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. ALLIANCE ONE RECEIVABLES MANAGEMENT INC., the Defendant, Case No. 2:19-cv-00588 (E.D. Wisc.), the Plaintiffs ask the Court for an order certifying a class, appointing the Plaintiff as class representative, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff furthers ask that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class. Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545-46 (7th Cir. 2017).[CC] Attorneys for the Plaintiff: Mark A. Eldridge, Esq. John D. Blythin, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com ALLIED INTERSTATE: Placeholder Bid for Class Certification Filed ---------------------------------------------------------------- In the class action lawsuit captioned PATRICK BILLS, JUMOKA JOHNSON, DONNA KIJEK, and JODI LUCHETTA, Individually and on Behalf of All Others Similarly Situated, the Plaintiffs, v. ALLIED INTERSTATE, LLC, the Defendant, Case No. 2:19-cv-00557-NJ (E.D. Wisc.), the Plaintiffs ask the Court for an order certifying a class, appointing the Plaintiff as class representative, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiffs further ask that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class. Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545-46 (7th Cir. 2017).[CC] Attorneys for the Plaintiffs: Mark A. Eldridge, Esq. John D. Blythin, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com ALTA DENA CERTIFIED: Underpays Material Handlers, Padilla Alleges ----------------------------------------------------------------- BALBINA PADILLA, individually and on behalf of all others similarly situated, Plaintiff v. ALTA DENA CERTIFIED DAIRY, LLC; DEAND FOODS COMPANY; and DOES 1 through 50, Defendants, Case No. 19STCV10846 (Cal. Super., Los Angeles Cty., March 29, 2019) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, and provide itemize wage statements. The Plaintiff Padilla was employed by the Defendant as a material handler. Alta Dena Certified Dairy, LLC produces milk and dairy products. The company offers white, flavored, and specialty milk; cottage cheese, sour creams, and butter; and ice creams, juices, and other beverages. The company was founded in 1945 and is based in City Of Industry, California. As of 1999 Alta Dena Certified Dairy, LLC operates as a subsidiary of Dean West II, LLC. [BN] The Plaintiff is represented by: Kevin Mahoney, Esq. Edward Kim, Esq. Berkeh Alemzadeh, Esq. MAHONEY LAW GROUP 249 East Ocean Boulevard, Suite 814 Long Beach, CA 90802 Telephone: (562) 590-5550 Facsimile: (562) 590-8400 E-mail: kmahoney@mahoney-law.net ekim@mahoney-law.net balem@mahoney-law.net AMAZING HOME: Rivas Seeks Conditional Class Certification --------------------------------------------------------- In the class action lawsuit RICARDO RIVAS, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, the Plaintiffs, vs. AMAZING HOME COMMUNITY SERVICES, LLC & ADELA SEGOVIA, the Defendants, Case No. 5:19-cv-00086-OLG (W.D. Tex.), the Parties ask the Court to grant conditional certification and notice to Class of: "all current and former hourly employees employed by Defendants from [three years prior to the date the notice is issued] to the present who worked more than forty hours in at least one workweek and were not paid an overtime premium of one-and-one-half times their hourly rate for those hours." The Plaintiff filed this Fair Labor Standards Act collective action on behalf of himself and all others similarly situated. Typically, in collective actions, a plaintiff files a Motion seeking conditional certification and court authorization to send a notice to potential plaintiffs informing them of the pending action and their right to opt into the action if they so desire.[CC] Attorneys for the Plaintiff: Lawrence Morales II, Esq. Allison s. Hartry, Esq. THE MORALES FIRM, P.C. 6243 IH-10 West, Suite 132 San Antonio, TX 78201 Telephone No. (210) 225-0811 Facsimile No. (210) 225-0821 E-mail: lawrence@themoralesfirm.com ahartry@themoralesfirm.com Attorneys for the Defendants: Stacy H. Bruce, Esq. Jennifer Smiley, Esq. COBB MARTINEZ WOODWARD PLLC 1700 Pacific Avenue, Suite 3100 Dallas, TX 75201 Telephone: (214) 220-5210 Facsimile: (214) 250-5260 E-mail: sbruce@cobbmartinez.com jsmiley@cobbmartinez.com AMERICAN RENAL: May 28 Lead Plaintiff Motion Deadline Set --------------------------------------------------------- RM LAW, P.C. on April 2 disclosed that a class action lawsuit has been filed on behalf of all persons or entities that purchased American Renal Associates Holdings, Inc. ("American Renal" or the "Company") (NYSE: ARA) between August 10, 2016 and March 27, 2019, inclusive (the "Class Period"). American Renal shareholders may, no later than May 28, 2019, move the Court for appointment as a lead plaintiff of the Class. If you purchased shares of American Renal and would like to learn more about these claims or if you wish to discuss these matters and have any questions concerning this announcement or your rights, contact Richard A. Maniskas, Esquire toll-free at (844) 291-9299 or to sign up online, click here. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934. The complaint alleges that defendants made materially false and misleading statements to investors during the Class Period and failed to disclose the following: (i) the Company's financial statements were false and could not be relied upon; and (ii) American Renal had material weaknesses in its internal controls over financial reporting. The complaint further alleges that, as a result of the foregoing, investors purchased American Renal's common stock at artificially inflated prices during the Class Period and suffered investment losses as a result of the defendants' conduct. On March 8, 2019, American Renal disclosed that it was delaying the filing of its fiscal 2019 Annual Report, and that the Company's Audit Committee was "examining reserve computations and other accounting practices that could have an impact on accounts receivable and revenue for the fiscal year ended December 31, 2018, as well as the previously reported fiscal years…." Following this news, shares of the Company's stock declined $2.05 per share, or over 16% in value, to close on March 8, 2019 at $10.46 per share, on heavy trading volume. Subsequently, on March 27, 2019, American Renal disclosed that the Company's previously issued financial statements for fiscal years 2014 – 2017 "should be restated and should no longer be relied upon," and that the Company's Chief Financial Officer had "resigned" effective March 26, 2019. Following this additional news, shares of the Company's stock declined a an additional $3.69 per share, or 38% in value, to close on March 28, 2019 at $6.01 per share, again on heavy trading volume. If you are a member of the class, you may, no later than May 28, 2019, request that the Court appoint you as lead plaintiff of the class. A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation. In order to be appointed lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Under certain circumstances, one or more class members may together serve as "lead plaintiff." Your ability to share in any recovery is not, however, affected by the decision whether or not to serve as a lead plaintiff. You may retain RM LAW, P.C. or other counsel of your choice, to serve as your counsel in this action. For more information regarding this, please contact RM LAW, P.C. (Richard A. Maniskas, Esquire) toll-free at (844) 291-9299 or by email at rm@maniskas.com or click here. For more information about class action cases in general or to learn more about RM LAW, P.C. please visit our website by clicking here. RM LAW, P.C. -- http://www.rmclasslaw.com-- is a national shareholder litigation firm. RM LAW, P.C. is devoted to protecting the interests of individual and institutional investors in shareholder actions in state and federal courts nationwide. [GN] AMERICAN RENAL: Rosen Law Firm Files Suit Over Faulty Accounting ---------------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, announces it has filed a class action lawsuit on behalf of purchasers of the securities of American Renal Associates Holdings, Inc. (NYSE: ARA) from August 10, 2016 through March 27, 2019, inclusive (the "Class Period"). The lawsuit seeks to recover damages for American Renal investors under the federal securities laws. To join the American Renal class action, go to https://www.rosenlegal.com/cases-register-1533.html or call Phillip Kim, Esq. or Zachary Halper, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or zhalper@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. According to the lawsuit, defendants made false and/or misleading statements and/or failed to disclose that: (1) issues with American Renal's accounting process for revenue recognition, collections, and related matters would give rise to a U.S. Securities and Exchange Commission ("SEC") investigation into the same, and increased regulatory scrutiny by the SEC; (2) American Renal's financial statements for the fiscal years 2014, 2015, 2016 and 2017 contained in its Annual Reports for the years ended December 31, 2016 and 2017, and its condensed consolidated financial statements in quarterly reports from 2016 through 2018 were false and could not be relied upon; (3) American Renal had material weaknesses in its internal control over financial reporting; and (4) as a result, defendants' public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than May 28, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to https://www.rosenlegal.com/cases-register-1533. Follow us for updates on LinkedIn: https://www.linkedin.com/company/the-rosen-law-firm, on Twitter: https://twitter.com/rosen_firm or on Facebook: https://www.facebook.com/rosenlawfirm/. View source version on businesswire.com:https://www.businesswire.com/news/home/20190328005983/en/ Contact: Laurence Rosen, Esq. Phillip Kim, Esq. Zachary Halper, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 34thFloor New York, NY 10016 Telephone: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 Website: www.rosenlegal.com Email: lrosen@rosenlegal.com pkim@rosenlegal.com zhalper@rosenlegal.com [GN] APPLE INC: Faces Class Action Over Defective Apple Watch Models --------------------------------------------------------------- Joe Rossignol, writing for MacRumors, reports that New Jersey resident Gina Priano-Keyser has filed a proposed class action lawsuit against Apple in U.S. district court, accusing the company of fraudulent business practices and breach of warranty related to the Apple Watch, according to court documents accessed by MacRumors. Priano-Keyser alleges that all Apple Watches up to and including Series 4 models are prone to a defect that results in the lithium-ion battery swelling and causing the screen to "crack, shatter, or detach from the body" of the watch "through no fault of the wearer, oftentimes only days or weeks after purchase." The plaintiff believes that Apple either knew or should have known that the Apple Watch models were defective before selling them, adding that they pose "a significant safety hazard to consumers" -- a "number" of which have suffered "cuts and burns" as a result of the scratched, shattered, or detached screens. Apple has acknowledged the possibility of swollen batteries in select Apple Watch models in the past, and offered free repairs up to three years after purchase. However, the complaint alleges that the company often attributes the issue to "accidental damage" and thus "refuses to cover repairs" under warranty. Priano-Keyser states that she purchased an Apple Watch Series 3 in October 2017. In July 2018, while charging, she alleges that the screen "unexpectedly detached" from the watch's body and cracked. Her daughter "pushed the screen back into place," but the Apple Watch has been "unusable" ever since. The plaintiff booked a Genius Bar appointment in August 2018, but upon inspection, she alleges that Apple denied to repair the Apple Watch free of charge under warranty and instead quoted her an out-of-warranty fee of $229 for service. The complaint cites over a dozen similar experiences described by users on the Apple Support Communities over the past few years. Priano-Keyser is seeking damages in an amount to be proven at trial for herself and all others similarly situated. The proposed class includes all residents of New Jersey who are current and former owners of all models and sizes of the Apple Watch Series 1, Series 2, and Series 3 purchased in New Jersey. The complaint was filed by Shepherd, Finkelman, Miller & Shah, LLP, the same law firm that filed a nearly identical class action lawsuit regarding the swollen Apple Watch batteries in California back in June 2018. That case was tossed by U.S. District Judge Lucy Koh in January due to being "vague." "Plaintiff's description of the alleged defect identifies only the consequences of the alleged defect (i.e., cracking, shattering, or detaching), but is notably silent on identifying the defect that causes such consequences," Judge Koh stated. The lawsuit in New Jersey addresses this by attempting to identify a cause. "Upon information and belief, the Defect is caused by aging or otherwise faulty li-on batteries, or by defective internal components of the Watches that regulate temperature, electrical currents, charging, and other mechanisms that could affect the Watches' li-on batteries," the complaint states. It remains to be seen if the New Jersey case proceeds to trial or is also tossed. [GN] AREAS USA LAX: Cazares Suit Removed to C.D. California ------------------------------------------------------ The case captioned JUAN RAMOS CAZARES, on behalf of himself and all others similarly situated, Plaintiff, v. AREAS USA LAX, LLC, a Florida limited liability company; AREAS SKYVIEW LAX JV, LLC, a Florida limited liability company; EDUARDO RIOS, AN INDIVIDUAL; and DOES 1 through 100, inclusive, Defendants, Case No. 19STCV08209 was removed from the Superior Court of the State of California, County of Los Angeles, to the United States District Court for the Central District of California on April 19, 2019, and assigned Case No. 2:19-cv-03061. In the Complaint, Plaintiff, a purported former employee of Defendants, alleges causes of action against all Defendants for (1) Failure to Pay Overtime Wages; (2) Failure to Pay Minimum Wages; (3) Failure to Provide Meal Periods or Compensation in Lieu Thereof; (4) Failure to Provide Rest Periods or Compensation in Lieu Thereof; (5) Waiting Time Penalties; (6) Wage Statements Violations; (7) Violation of Labor Code Section 2802; and (8) Violation of Business and Professions Code.[BN] The Defendants are represented by: CARLOS JIMENEZ, ESQ. LITTLER MENDELSON, P.C. 633 West 5th Street, 63rd Floor Los Angeles, CA 90071 Phone: 213.443.4300 Fax: 213.443.4299 Email: cajimenez@littler.com ARKANSAS TOTAL: Court Certifies Class of Care Coordinators ---------------------------------------------------------- In the class action lawsuit TAQUILLA HATCH, individually and on behalf of others similarly situated, the Plaintiff, vs. ARKANSAS TOTAL CARE, INC., CENTENE CORPORATION and CENTENE MANAGEMET COMPANY, LLC, the DEFENDANTS, Case No. 4:18-cv-00580-JM (E.D. Ark.), the Hon. Judge James M. Moody Jr. entered an order: 1. certifying a class of: "all Care Coordinators for Arkansas Total Care, Inc. and Centene Corporation at any time since August 27, 2015"; 2. approving the form of notice proposed by the plaintiff appropriate; 3. directing the Defendant to provide to counsel for the plaintiff the names and addresses of all persons who were employed by them as Care Coordinators during the specific time within 14 days from the entry of this Order; 4. directing the Defendant to provide information in electronic format only if it is currently maintained in electronic format; 5. authorizing a 90-day opt-in period from the date the notice is mailed; 6. authorizing lawyers for the plaintiff to issue notice and consent forms by mail, and also authorizing to send a reminder postcard 30 days after the initial notice is mailed; and 7. directing the Plaintiff's request to provide notice via electronic mailing or text message is denied. The Court finds that the Plaintiff has provided enough information to establish that she is similarly situated to the putative class members at this stage of the litigation. Accordingly, the Court finds that conditional certification is proper under the FLSA for purposes of notice and discovery, and accordingly, certifies the class requested by the Plaintiff. The Plaintiff claims that she and all putative class members performed the same or similar job duties which inevitably required more than 40 hours of work per week. The Plaintiff claims that the duties performed by her and all of the members of the putative class included providing various services, to include traveling to meet clients, assisting clients with day-to-day tasks, scheduling and accompanying clients to their appointments and related tasks. The Plaintiff contends that all care coordinators, including Plaintiff and opt-in Plaintiffs, regularly worked more than 40 hours per week due to the mandatory client note-taking. Plaintiff claims that all Care Coordinators were paid by the hour by the Defendants but were not paid any wages for hours spent writing the mandatory client notes each evening.[CC] AVIS BUDGET: NJ Court Affirms Protective Order in Mendez -------------------------------------------------------- In the case, JOSE MENDEZ, individually and on behalf of all others similarly situated, Plaintiff, v. AVIS BUDGET GROUP, INC., et al., Defendants, Civil Action. No. 11-6537 (JLL) (D. N.J.), Judge Jose L. Linares of the U.S. District Court for the District of New Jersey affirmed the order of the Magistrate Judge, entered on Dec. 17, 2018, granting the Plaintiff's application pursuant to Federal Rule of Civil Procedure 26(c) for a protective order. The complaint was filed on Nov. 7, 2011. The fact discovery period in the action closed on June 5, 2014, and the expert discovery period closed on Jan. 30, 2016. On Nov. 17, 2017, the Court granted the Plaintiff's motion to certify the action as a class action for a class period beginning on April 1, 2007 and ending on Dec. 31, 2015 for a nationwide class, a Florida subclass, and a New Jersey subclass. As is relevant to the appeal, the Defendants advised the Plaintiff on March 13, 2018 that they intended to serve interrogatories upon between 10,000 and 20,000 members of the class other than the class representative with the goal of obtaining perhaps hundreds of responses. The Interrogatories would have inquired as to whether the class members: were aware of e-Toll before they rented automobiles from the Defendants; understood the terms and conditions contained in the rental confirmations; had their reservations made by another person; objected when they were billed on their credit cards for using e-Toll; and were reimbursed by an employer or anyone else. However, on April 18,2018, the Plaintiff filed an application for a protective order to prohibit the Defendants from serving the Interrogatories, and argued, among other things, that such discovery would be inappropriate in the case. The Magistrate Judge ultimately granted the Application. In doing so, the Magistrate Judge found that the proposed discovery being sought by the Interrogatories was "of dubious relevance," because the Interrogatories addressed issues that were reserved for the claims administration phase of this class action, e.g., the entitlement to damages. Furthermore, the Magistrate Judge held that given the small sample size of responses to the Interrogatories that the defendants expected to receive, the responses would be functionally useless for the purported purpose of addressing class-wide questions, as even the Defendants acknowledged that they are seeking anecdotal evidence, rather than anything that might be attributable to the class. In addition, the Magistrate Judge held that even though the Defendants' request to serve the Interrogatories upon the absent class members was not motivated by bad faith, the Defendants already had access to much of the information that they were seeking, as they possessed customer surveys and other materials providing similar information. Judge Linares finds that a finding by the Magistrate Judge is clearly erroneous when although there is evidence to support it, the reviewing district court is left with the definite and firm conviction that a mistake has been committed. In addition, a ruling is contrary to law if the Magistrate Judge has misinterpreted or misapplied the applicable law. It was not clearly erroneous for the Magistrate Judge to find that the information sought by the Defendants in the Interrogatories was of questionable relevance. It is uncontested that there will be a class of thousands, and thus the anticipated number of responses, i.e., hundreds at the most, would do nothing to adequately clarify the issues in the class action. It was also not clearly erroneous for the Magistrate Judge to conclude that the Defendants already possessed the information that they sought through the Interrogatories, as the Defendants had surveys from customers who filed them in closer temporal proximity to when the members were exposed to e-Toll. In conclusion, the Judge holds that the Magistrate Judge committed neither an abuse of discretion nor a clear error of law in making the determinations set forth in the December 2018 Order. The December 2018 Order will, therefore, be affirmed. Accordingly, Judge Linares affirmed the Order of the Magistrate Judge, entered on Dec. 17, 2018. The Clerk of the Court will designate the appeal as terminated. A full-text copy of the Court's April 3, 2019 Opinion and Order is available at https://is.gd/jewa3l from Leagle.com. JOSE MENDEZ, Individually and On Behalf Of All Others Similarly Situated, Plaintiff, represented by JEREMY NATHAN NASH, LITE DEPALMA GREENBERG, LLC, KATRINA CARROLL -- kcarroll@litedepalma.com -- LITE DEPALMA GREENBERG, LLC, SUSANA CRUZ HODGE -- scruzhodge@litedepalma.com -- LITE DEPALMA GREENBERG LLC & JOSEPH J. DEPALMA -- jdepalma@litedepalma.com -- LITE, DEPALMA, GREENBERG, LLC. AVIS BUDGET GROUP, INC., doing business as, AVIS RENT A CAR SYSTEM, LLC & HIGHWAY TOLL ADMINISTRATION, LLC, Defendants, represented by PAUL J. HALASZ -- phalasz@daypitney.com -- DAY PITNEY LLP. BANK OF MONTREAL: Fire Pension Assoc. Appeals Suit Dismissal ------------------------------------------------------------- Plaintiff Fire & Police Pension Association of Colorado filed an appeal from the District Court's order and judgment, both issued on March 14, 2019, in its lawsuit styled Fire & Police Pension Association of Colorado v. Bank of Montreal, et al., Case No. 18-cv-342, in the U.S. District Court for the Southern District of New York (New York City). District Court Judge Analisa Torres granted the Foreign Defendants' motion to dismiss the lawsuit for lack of personal jurisdiction. The Defendants' motion to dismiss is also granted with respect to the Plaintiff's Sherman Act, Commodity Exchange Act ("CEA"), and Racketeer Influenced and Corrupt Organizations Act claims. The Plaintiff's state law claims are dismissed without prejudice to renewal in state court. As previously reported in the Class Action Reporter, the lawsuit is brought against the Defendants for violations of the Sherman Act, Commodity Exchange Act, and Racketeer Influenced Corrupt Organization Act. The action arises from Defendants' unlawful conspiracy to increase the profitability of their derivatives trading business by manipulating the Canadian Dealer Offered Rate during the period of at least August 9, 2007 through at least June 30, 2014. The appellate case is captioned as Fire & Police Pension Association of Colorado v. Bank of Montreal, et al., Case No. 19-976, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiff-Appellant Fire & Police Pension Association of Colorado, individually and on behalf of all those similarly situated, is represented by: Vincent Briganti, Esq. LOWEY DANNENBERG, P.C. 44 South Broadway White Plains, NY 10601 Telephone: (914) 997-0500 Facsimile: (914) 997-0035 E-mail: vbriganti@lowey.com Defendants-Appellees Bank of Montreal, BMO Financial Corp., BMO Nesbitt Burns Inc. and BMO Capital Markets Corp. are represented by: Adam Selim Hakki, Esq. SHEARMAN & STERLING LLP 599 Lexington Avenue New York, NY 10022 Telephone: (212) 848-4924 E-mail: ahakki@shearman.com Defendants-Appellees Merrill Lynch Canada, Inc., Bank of America Corporation, Bank of America, N.A., and Merrill Lynch, Pierce, Fenner & Smith Incorporated are represented by: Dana Meredith Seshens, Esq. DAVIS POLK & WARDWELL LLP 450 Lexington Avenue New York, NY 10017 Telephone: (212) 450-4855 E-mail: dana.seshens@dpw.com Defendants-Appellees Deutsche Bank AG, Deutsche Bank Securities Inc. and Deutsche Bank Securities Limited are represented by: Arianna Markel, Esq. PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 373-3000 E-mail: amarkel@paulweiss.com Defendants-Appellees The Bank of Nova Scotia, Scotia Capital (USA) Inc. and Scotia Capital Inc. are represented by: Daniel Laguardia, Esq. SHEARMAN & STERLING LLP 535 Mission Street San Francisco, CA 94105 Telephone: (415) 646-1100 E-mail: daniel.laguardia@shearman.com Defendants-Appellees Canadian Imperial Bank of Commerce, CIBC World Markets Corp. and CIBC World Markets, Inc., are represented by: William E. Walsh, Esq. DENTONS US LLP 233 South Wacker Drive Chicago, IL 60606 Telephone: (312) 576-8000 E-mail: william.walsh@dentons.com Defendants-Appellees HSBC Holdings PLC, HSBC Bank PLC, HSBC North America Holdings Inc., HSBC Securities (USA) Inc., HSBC Bank Canada, HSBC Bank USA, N.A., and HSBC USA Inc. are represented by: Julia C. Webb, Esq. LOCKE LORD LLP 111 South Wacker Drive Chicago, IL 60606 Telephone: (312) 443-0404 E-mail: jwebb@lockelord.com Defendants-Appellees National Bank of Canada, National Bank Financial, Inc., and National Bank of Canada Financial, Inc., are represented by: Harry S. Davis, Esq. SCHULTE ROTH & ZABEL LLP 919 3rd Avenue New York, NY 10022 Telephone: (212) 756-2222 E-mail: harry.davis@srz.com Defendants-Appellees Royal Bank of Canada, RBC Dominion Securities Inc. and RBC Capital Markets, LLC, are represented by: Leah Friedman, Esq. LATHAM & WATKINS LLP 885 3rd Avenue New York, NY 10022 Telephone: (212) 906-1200 E-mail: leah.friedman@lw.com Defendants-Appellees The Toronto-Dominion Bank, TD Securities Inc. and TD Securities (USA) LLC are represented by: David Sapir Lesser, Esq. WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 Telephone: (212) 230-8851 E-mail: david.lesser@wilmerhale.com BARRIER TECHNOLOGIES: Fails to Pay Overtime Wages, Brown Suit Says ------------------------------------------------------------------ VICTOR BROWN, on behalf of himself and others similarly situated, Plaintiff, v. BARRIER TECHNOLOGIES LLC, a Florida Limited Liability Company, and MARC GLICKMAN, individually, Defendants, Case No. 0:19-cv-61064-RKA (S.D. Fla., April 26, 2019) is an action brought by Plaintiff on behalf of himself and other current and former hourly, non-exempt laborers, production employees, and warehouse employees of Defendants similarly situated to him, however variously titled, for unpaid overtime wages, liquidated damages, and costs and reasonable attorneys' fees of this action under the provisions of the Fair Labor Standards Act ("FLSA"). Plaintiff regularly worked in excess of 40 hours per week but Defendants failed to pay Plaintiff time and one-half wages for all of his actual overtime hours worked each week, with Defendants instead paying Plaintiff straight-time wages for his overtime hours, says the complaint. Plaintiff was employed by Defendants between approximately April 2017 and March 2019. Defendants have owned and operated a business that manufactures radiation protection equipment for medical, dental, veterinary, nuclear, and defense industries.[BN] The Plaintiff is represented by: Keith M. Stern, Esq. KEITH M. STERN LAW OFFICE OF KEITH M. STERN, P.A. 80 SW 8th Street, Suite 2000 Miami, FL 33130 Phone: (305) 901-1379 Email: employlaw@keithstern.com BOSE: Must Face Class Action Over Connect App --------------------------------------------- Daniel Sanchez, writing for Digital Music News, reports that Bose may soon have to face the music for sharing users' information to third-parties. Several years ago, Kyle Zak purchased a pair of Bose wireless headphones for $350. To "get the most out of [his] headphones," the Illinois resident downloaded the company's Connect app. Zak then registered the wireless headphones online by providing the serial numbers, e-mail addresses, and phone numbers. Then, two years ago, he took the headphone makers to court. Representing Zak, Chicago-based consumer privacy law firm Edelson PC filed a class-action lawsuit against Bose. The law firm claims that the company has willfully collected and recorded the details of music and audio files consumers listen to on the Collect app. Bose then transmits this information, along with customers' personal identities, to third-parties, including data miners. All the while, the company refuses to make this known to consumers. Now, a federal judge has made an important ruling on the class-action lawsuit. You can't sue Bose for 'intercepting' data, but the hardware maker won't get away that easily. On March 31, US District Court Judge Andrea Wood dismissed Zak's key wiretapping claim. He can't claim the Connect app illegally "intercepted" the names and duration of songs he streamed on Spotify. Simply put, Wood found Zak failed to show Bose wasn't a "party" to the communication. The company couldn't willfully "intercept" this information. Thus, Bose didn't violate federal wiretapping law. She dismissed Zak's Illinois Eavesdropping Statute claim. Yet, Wood refused to drop another key claim. Bose has allegedly breached Illinois' Consumer Fraud and Deceptive Business Practices Act. The company has reportedly misled consumers about how it collects and then subsequently shares data. In a 17-page decision, she noted, "The court finds that Zak has pleaded an [Illinois Consumer Fraud Act] violation sufficient to survive the motion to dismiss stage." According to Zak, Bose uses this data to create a unique and detailed profile of each user's listening preferences. Wood notes, "[The lawsuit] alleges that Bose committed a deceptive act when it omitted and concealed the fact that the app secretly collects its users' media information and discloses it to a third-party data miner called Segment.io, then accesses that data and pairs it to user identity information to create detailed profiles about users' listening preferences and habits." The company had previously defended itself in court, stating the omissions weren't "material" nor deceptive. The company had asked the court two years ago to dismiss the suit. Labeling the motion to dismiss as premature, Wood ruled, "These are not issues to resolve on a motion to dismiss." [GN] BP EXPLORATION: Dismissal With Prejudice of Wiggins Recommended --------------------------------------------------------------- In the case, JOHNNY WIGGINS, JR. v. BP EXPLORATION & PRODUCTION, INC. ET AL., SECTION "J" (2). Related to: 12-968 BELO in MDL 10-2179, Civil Action No. 19-1425 (E.D. La.), Magistrate Judge Joseph C. Wilkinson, Jr. of the U.S. District Court for the Eastern District of Louisiana recommended (i) that BP's motion to dismiss be granted, and (ii) that the Plaintiff's complaint be dismissed with prejudice. Wiggins was employed as a clean-up worker along the Florida Gulf coast, where he also lived, after the BP/Deepwater Horizon explosion and oil spill on April 20, 2010. The Plaintiff filed his complaint pursuant to the Back-End Litigation Option ("BELO") provisions of the BP/Deepwater Horizon Medical Benefits Class Action Settlement Agreement. As a member of the BELO settlement class, the Plaintiff seeks compensatory damages and related costs for later-manifested physical conditions that he allegedly suffered as a result of exposure to substances released after the oil spill. Defendants, BP Exploration & Production Inc. and BP America Production Co., filed a motion to dismiss the Plaintiff's complaint. BP argues that the Plaintiff failed properly to file his individual BELO lawsuit by the Medical Settlement Agreement's filing deadline and that the complaint should be dismissed with prejudice as time-barred. No opposition to the motion has been filed. The Plaintiff did not file his BELO lawsuit until Feb. 15, 2019, four days after the Medical Settlement Agreement's deadline of Feb. 11, 2019 had passed. Magistrate Judge Wilkinson explains that as a condition precedent to filing a BELO suit, a class member must submit a Notice of Intent to Sue to the Medical Settlement Agreement Claims Administrator, who must transmit the notice to BP within 10 days. BP then has 30 days to decide whether to mediate the claim. If, as in the instant case, BP chooses not to mediate, the claimant must file her BELO lawsuit within six months of being notified by the Claims Administrator of BP's election not to mediate. He finds that the requirement to satisfy this condition precedent is not a mere case management tool, but is required by the court-approved Medical Settlement Agreement and is not subject to alteration. Nothing in either the Medical Settlement Agreement or the court order adopting it affords the Plaintiff the relief he seeks. Wiggins failed to meet the condition precedent to filing a BELO complaint by timely filing his lawsuit. No explanation for doing so has been provided. No purpose would be served by dismissing this case without prejudice, when its untimely filing under the Medical Settlement Agreement clearly means that the claim is barred and must be dismissed with prejudice. The Judge therefore modifies the CMO insofar as it applies to this particular BELO case to permit filing of the motion to dismiss with prejudice, pursuant to CMO. For all the forgoing reasons, Judge Wilkinson recommended that the Defendant's motion be granted, and that the Plaintiff's complaint be dismissed with prejudice as untimely. A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within 14 days after being served with a copy will bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. A full-text copy of the Court's April 3, 2019 Report & Recommendation Order is available at https://is.gd/eEDn7x from Leagle.com. Johnny Wiggins, Jr., Plaintiff, represented by Craig Downs -- info@downslawgroup.com -- Downs Law Group, PA, Michael Dewayne Dunlavy, Downs Law Group, PA & Nathan Lee Nelson, Downs Law Group, PA. BP Exploration & Production, Inc. & BP America Production Company, Defendants, represented by Don Keller Haycraft -- dkhaycraft@liskow.com -- Liskow & Lewis, Catherine Pyune McEldowney -- CPM@maronmarvel.com -- Maron Marvel Bradley and Anderson LLC, Devin C. Reid, Liskow & Lewis, Georgia Lee Lucier -- georgialucier@HuntonAK.com -- Hunton Andrews Kurth LLP, Kevin Michael Hodges -- khodges@wc.com -- Williams & Connolly, LLP & Scott C. Seiler -- scseiler@liskow.com -- Liskow & Lewis. CANADA: Faces Class Action Over Phoenix Pay System -------------------------------------------------- CBC News reports that faced with an expanding class-action lawsuit related to the Phoenix pay system, the federal government is taking steps to preserve records. Last April, a court in Quebec authorized a class-action lawsuit for people who had been affected by the failed pay system. It does not include the majority of public servants who have a union process for grievances, but does include students, retirees and occasional workers who aren't covered under collective agreements. The law firm Sarailis, which is handling the suit, estimates there could be between 40,000 and 70,000 claimants. Julien Fortier, a lawyer with the firm, said the number could grow because the system isn't fixed yet and more students and more retirees are being affected. The lead plaintiff is Ezmie Bouchard, who worked at Passport Canada between January and August 2016. She alleges several mistakes were made on her pay and that when she left, she was owed $4,800. Then she was overpaid. Keep records The Department of Justice issued a document, later obtained by Radio-Canada, saying that pay records, complaints and applications for fixes to the pay system should all be kept. The department also wants to ensure documents and memos about the decisions made around the system are all saved. Any current policies requiring the documents to be deleted should be suspended, the document says. The department is also appointing "guardians" to ensure files are protected. [GN] CANADA: NAN Provides Info on Indian Day School Settlement --------------------------------------------------------- Amanda Perreault, writing for NetNewsLedger, reports that in response to the many inquiries of the recent Proposed Settlement reached for survivors of Federal Indian Day schools, NAN put together a summary to help navigate the information recently provided by the Class Action Lawyers at Gowling WLG. A list of all Federal Indian Day schools has been developed which includes roughly 40 schools in NAN territory alone with over 184 different communities and First Nations in Ontario and many across Canada. The list, which currently contains over 700 federally-run Indian Day Schools is an evolving list. There is a built-in process to update it as needed. Anyone who believes there should be a school added to the list can contact Class Counsel. They will be asked to provide whatever information they can about the schools (for example, school photos or class pictures) You can visit this link https://is.gd/emPpVq to see if you attended one of these schools. You are encouraged to contact Class Action Lawyers at Gowling WLG to schedule a community visit or ask any question you might have about the case. You can do this by calling toll-free at 1.844.539.3815 or email Vanessa.lessard@gowlingwlg.com Please keep in mind this settlement is not approved yet and we understand that there is a court hearing on May 13-15, 2019, in Winnipeg. The settlement includes ALL individuals who attended a Federal Indian Day School, including First Nations, Inuit, and Métis. It's important for people to understand that the baseline harm for claims is such that nearly everyone who is eligible for the settlement will be eligible for at least "level 1" compensation ($10,000). The NAN Executive Council would like to acknowledge Garry McLean, who served as lead plaintiff in this class action. Garry was legally required at the age of seven to attend Dog Creek Day School at Lake Manitoba First Nation from 1965 to 1975 as per the Indian Act. Garry McLean's experience at Dog Creek Day School involved, but was not limited to being subjected to emotional, mental, physical and sexual abuse. He did not know how to speak English when he first started school, and was discouraged from speaking his native language, Saulteaux It is with deep sadness that we share the untimely death of our good friend, Garry McLean. Garry was a fierce advocate for Indian Day School Survivors and their families. He was tireless on their behalf. Even in last few days, he remained engaged in the case and pushed for its progress. Remaining committed to helping Indian Day School survivors achieve justice for the harms they experienced. Garry has taught so much about this work being carried forward to resolution and reconciliation. His support, friendship, grace and gentle humour will be missed. You can download your application, request forms to speak at the hearing or for further information at indiandayschools.com If you have a story to tell and would like to share your story, you can contact us at newsroom@netnewsledger.com [GN] CANADA: Plaintiffs' Counsel to Appeal Class Action Against WRPS --------------------------------------------------------------- Phi Doan, writing for Kitchener Today, reports that a lawsuit was presented on April 2 in front of the Ontario Court of Appeals, which alleges gender discrimination and sexual harassment within the Waterloo Regional Police Service. Douglas Elliot is lead counsel for the plaintiffs' legal team, representing both former and current officers He tells Kitchener Today with Brian Bourke on 570 NEWS their legal team is hoping to appeal their case after it was tossed out by a judge nine months ago. The judge reasoned that claims have to go through the proper channels based on legal precedents. In this case, the claims should be dealt with through a human rights tribunal, or through an internal grievance and arbitration process. However, Elliot argues that's not feasible. "Knowing, based on the evidence, that the existing system hasn't been delivering a solution for the last 40 years and it's no reason to think it will in the next 40 years unless there's a class action," Elliot says. He also references a similar case against the RCMP that went to court. "Very, very similar allegations about sexual assault, sexual harassment, failure of women to get ahead, reprisal against people who complained, that whole scenario that's very, very similar to Waterloo Regional Police was resolved through a major class action settlement," he says. According to Elliot, Regional police had created an environment that punished women who came forward, leaving the current police collective agreement solution unviable. "The problem here is that there's a lot of evidence that women were actively discouraged from filing complaints, they were told they'd be a constable for life, there was retaliation," he says. Which left them with little choice than to turn to a class action lawsuit. Meanwhile, Waterloo Regional Police Chief Bryan Larkin briefly addressed the lawsuit on 570 NEWS. "Out of respect for the Ontario Court of Appeals and Process, I can't speak to that process, but the reality is that when I became the chief, one of the mandates for the boards around cultural change. It's been embedded in the board's strategic plan. It's been embedded in our operational plan and so we been aggressively looking to look at the culture of policing," Larkin says. According to him, the WRPS culture has been changing to become more conscious on gender and racial bias with the workplace. "Moving forward on many different issues internally, every senior leader, every mid-leader has been trained and educated in implicit bias and shifting our culture," Larkin says. "The number of recruitment nights that we have around targeting not only gender-balance workforce, but also racialized workforce, those are strong priorities for me." He says he would not stand for discrimination or harassment in the service. "I continue to use everything within my legal employment framework to deal with and I also don't want this to define us." [GN] CAPITAL MANAGEMENT: Class Certification Bid in Wolf Case Shelved ---------------------------------------------------------------- In the class action lawsuit, MARIA WOLF, the Plaintiff, v. CAPITAL MANAGEMENT SERVICES, L.P., the Defendant, Case No. 19-CV-558 (E.D. Wisc.), the Hon. Judge William E. Duffin entered an order granting Plaintiff's motion to stay further proceedings on the motion for class certification. The Court said, "The plaintiff filed a class action complaint. At the same time, the plaintiff filed what the court commonly refers to as a "protective" motion for class certification. In this motion the plaintiff moved to certify the class described in the complaint but also moved the court to stay further proceedings on that motion. In Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), the court suggested that class‐action plaintiffs "move to certify the class at the same time that they file their complaint." Id. "The pendency of that motion protects a putative class from attempts to buy off the named plaintiffs." However, because parties are generally unprepared to proceed with a motion for class certification at the beginning of a case, the Damasco court suggested that the parties "ask the district court to delay its ruling to provide time for additional discovery or investigation." The plaintiff's motion to stay further proceedings on the motion for class certification is granted. The parties are relieved from the automatic briefing schedule set forth in Civil Local Rule 7(b) and (c). Moreover, for administrative purposes, it is necessary that the Clerk terminate the plaintiff's motion for classcertification. However, this motion will be regarded as pending to serve its protective purpose under Damasco."[CC] CAPITAL MANAGEMENT: Placeholder Bid for Class Certification Filed ----------------------------------------------------------------- In the class action lawsuit captioned MARIA WOLF, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. CAPITAL MANAGEMENT SERVICES, LP, the Defendant, Case No. 2:19-cv-00558-WED (E.D. Wisc.), the Plaintiffs ask the Court for an order certifying a class, appointing the Plaintiff as class representative, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff furthers ask that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class. Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545-46 (7th Cir. 2017).[CC] Attorneys for the Plaintiff: Mark A. Eldridge, Esq. John D. Blythin, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com CARD ONE: Fromer Chiropractic Sues Over Unsolicited Advertisements ------------------------------------------------------------------ ERIC B. FROMER CHIROPRACTIC, INC., a California corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff, v. CARD ONE INTERNATIONAL, INC., a California corporation, Defendant, Case No. 2:19-cv-03462 (C.D. Cal., April 26, 2019) is a case challenging the Defendant's practice of sending unsolicited advertisements by facsimile. The Fax promotes the availability and quality of Defendant's property, goods, or services by way of offering two different pricing plans for its payment processing services, notes the complaint. Plaintiff avers that Defendant has sent, and continues to send, unsolicited advertisements via facsimile transmission in violation of the TCPA. According to the complaint, an unsolicited fax wastes the recipient's valuable time that would have been spent on something else. A junk fax also intrudes into the recipient's seclusion and violates the recipient's right to privacy. Plaintiff ERIC B. FROMER CHIROPRACTIC, INC. is a California corporation with its principal place of business located in Los Angeles, CA. CARD ONE INTERNATIONA, INC., is a California corporation.[BN] The Plaintiff is represented by: JOHN R. HABASHY, ESQ. LEXICON LAW, PC 633 W. Fifth St., 28th Floor Los Angeles, CA 90071 Phone: 213-233-5900 Fax: 888-373-2107 Email: john@lexiconlaw.com - and - Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Phone: 847-368-1500 Fax: 847-368-1501 Email: rkelly@andersonwanca.com CHARTER COMMS: Burke Law Named Interim Lead Counsel in Leeb Suit ---------------------------------------------------------------- In the case, GREG LEEB, individually and on behalf of others similarly situated, Plaintiff, v. CHARTER COMMUNICATIONS, INC., d/b/a SPECTRUM, Defendant, Case No. 4: 17CV2780 RL W (E.D. Mo.), Judge Ronnie L. White of the U.S. District Court for the Eastern District of Missouri, Eastern Division, granted the Plaintiff's Unopposed Motion for Burke Law Offices, LLC to be Appointed Interim Class Counsel and Incorporated Memorandum in Support. The Plaintiff seeks an order appointing his lead counsel, Burke Law, as the interim lead class counsel. He notes there is currently at least one other debt collection call class action under the Telephone Consumer Protection Act against Charter Communications. According to him, appointment of the interim lead counsel is necessary and appropriate to promote efficient use of resources and to specify which counsel Charter should contact to coordinate pretrial proceedings and possible class resolution. The Plaintiff further notes that Charter, while not conceding that the proposed class should be certified, did not intend to oppose this motion and has not done so. On review of the Plaintiffs motion, legal arguments, and attached exhibits, Judge White finds that Burke Law will fairly and adequately represent the interests of the proposed class because it: (1) has adequately identified and demonstrated a commitment to investigating the potential claims in this action; (2) possesses experience in handling class actions involving the types of claims asserted in this action; (3) has knowledge of the applicable law; and (4) will devote the resources necessary to represent the proposed class. Accordingly, he granted the Plaintiff's Unopposed, and appointed Burke Law as the interim lead class counsel. A full-text copy of the Court's April 3, 2019 Memorandum and Order is available at https://is.gd/FaD9XT from Leagle.com. Greg Leeb, individually and on behalf of other similarly situated, Plaintiff, represented by Alexander H. Burke -- aburke@burkelawllc.com -- BURKE LAW OFFICES, LLC & Nathan D. Sturycz -- nathan@sturyczlaw.com -- STURYCZ LAW GROUP. Charter Communications, Inc., doing business as Spectrum, Defendant, represented by Matthew D. Guletz -- mguletz@thompsoncoburn.com -- THOMPSON COBURN, LLP. CITRIX SYSTEMS: Boger Sues Over Automated Telemarketing Calls ------------------------------------------------------------- DAN L. BOGER, on behalf of himself and others similarly situated, Plaintiff, v. CITRIX SYSTEMS, INC., Defendant, Case No. 8:19-cv-01234-PX (E.D. Md., April 26, 2019) seeks to enforce the consumer-privacy provisions of the Telephone Consumer Protection Act ("TCPA"). In violation of the TCPA, the Defendant initiated automated telemarketing calls to Mr. Boger and other putative class members without their prior express written consent. Also in violation of the TCPA, Citrix failed to maintain adequate procedures to maintain an internal Citrix do not call list, says the complaint. Plaintiff Dan Boger is a resident of the state of Maryland and this District. Citrix Systems, Inc. is a corporation organized in Delaware with its principal place of business in Florida.[BN] The Plaintiff is represented by: Stephen H. Ring, Esq. STEPHEN H. RING, PC 9901 Belward Campus Drive, Suite 175 Rockville, MD 20850 Phone: (301) 563-9249 Email: shr@ringlaw.us - and - Joseph F. Murray, Esq. Jonathan Misny, Esq. MURRAY MURPHY MOUL + BASIL LLP 1114 Dublin Road Columbus, OH 43215 Phone: 614.488.0400 Facsimile: 614.488.0401 Email: tiffany@mmmb.com - and - Anthony Paronich, Esq. PARONICH LAW, P.C. 350 Lincoln Street, Suite 2400 Hingham, MA 02043 Phone (617) 485-0018 Facsimile (508) 318-8100 Email: https://www.paronichlaw.com CREDIT PROTECTION: Bid to Certify Class in McRobie Partly Granted ----------------------------------------------------------------- In the case, ELIZABETH McROBIE, Plaintiff, v. CREDIT PROTECTION ASSOCIATION, Defendant, Case No. 5:18-cv-00566 (E.D. Pa.), Judge Joseph F. Leeson, Jr. of the U.S. District Court for the Eastern District of Pennsylvania granted in part the Plaintiff's Motion to Certify Class. The Judge certified a Rule 23(b)(3) class defined as all natural persons residing in Pennsylvania, New Jersey and Delaware to whom Defendant CPA mailed a postcard, substantially similar to the Postcard sent to the Plaintiff, in an attempt to collect a debt, where the postcard was not returned as undeliverable. The class is certified only for purposes of resolving the claim under 15 U.S.C. Section 1692f(8) in Count II of the Plaintiff's Amended Complaint. The Judge denied the certification in all other respects. The Plaintiff is the appointed the Class Representative, and her counsel of record as the class counsel. The Judge granted the Defendant's Unopposed Motion for Leave to File Answer Instanter. The Answer is deemed filed as of Nov. 14, 2018. The Clerk of Court will docket Exhibit A to the Motion, as the Defendant's Answer and Affirmative Defenses to the Plaintiff's First Amended Class Action Complaint. The parties will confer and report to the Court their proposed timeline for further proceedings within 14 days of the date of the Order. A full-text copy of the Court's April 3, 2019 Order is available at https://is.gd/LUOmwi from Leagle.com. ELIZABETH MCROBIE, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by JOSHUA MARKOVITS, LEMBERG LAW LLC & SERGEI LEMBERG, LEMBERG LAW LLC. CREDIT PROTECTION ASSOCIATION, Defendant, represented by JUSTIN M. PENN -- jpenn@hinshawlaw.com -- HINSHAW & CULBERTSON LLP, ERICK V. VIOLAGO -- eviolago@defensecounsel.com -- MINTZER SAROWITZ ZERIS LEDVA & MEYERS, LLP, GEORGE W. VOKOLOS -- gvokolos@defensecounsel.com -- MINTZER SAROWITZ ZERIS LEDVA & MEYERS & JASON G. WEHRLE -- jwehrle@defensecounsel.com -- MINTZER SAROWITZ ZERIS LEDVA & MEYERS, LLP. CRUNCH LLC: Eacret Suit Status Conference Continued to July 18 -------------------------------------------------------------- In the case, DYLAN EACRET and JONATHAN KENT MERRITT, individually and on behalf of other similarly situated, Plaintiffs, v. CRUNCH, LLC, and DOES 1-100, inclusive Defendants, Case No. 3:18-cv-04374-JST (N.D. Cal.), Judge Jon S. Tigar of the U.S. District Court for the Northern District of California (i) continued the status conference set for April 19, 2019 at 1:30 p.m.; and (ii) ordered the hearing on the Plaintiff's Motion for Preliminary Approval of Class Action Settlement for July 18, 2019, at 2:00 p.m. or as soon thereafter as may be heard on the Court's calendar. The Parties attended a private mediation with Michael J. Loeb on March 22, 2019 and have reached a tentative class-wide settlement as memorialized in a Memorandum of Understanding executed by the Parties and their respective counsel. They are currently in the process of drafting a long-form settlement agreement and the Plaintiff anticipates filing a Motion for Preliminary Approval of Class Action Settlement by June 3, 2019. The Parties respectfully request that the Court vacates the April 19, 2019 status conference in light of the Parties' class-wide resolution and pending motion for preliminary approval. Pursuant the Court's Jan. 4, 2019 order, a status conference is currently scheduled for April 19, 2019 at 1:30 p.m. The Parties stipulated and respectfully jointly requested, and Judge Tigar approved that the Court (i) continued the status conference set for April 19, 2019 at 1:30 p.m.; (ii) ordered the hearing on the Plaintiff's Motion for Preliminary Approval of Class Action Settlement for July 18, 2019, at 2:00 p.m. or as soon thereafter as may be heard on the Court's calendar. A full-text copy of the Court's April 9, 2019 Order is available at https://is.gd/Pmw1rP from Leagle.com. Dylan Eacret & Jonathan Kent Merritt, Plaintiffs, represented by Ashwin Virji Ladva -- aladva@ladvalaw.com -- Attorney at Law. Crunch, LLC, Defendant, represented by Shannon Bettis Nakabayashi -- Shannon.Nakabayashi@jacksonlewis.com -- Jackson Lewis P.C., Conor John Dale -- Conor.Dale@jacksonlewis.com -- Jackson Lewis P.C., Mariko Mae Ashley -- Mariko.Ashley@jacksonlewis.com -- Jackson Lewis P.C. & Mia Farber -- Mia.Farber@jacksonlewis.com -- Jackson Lewis P.C.. CURTISS-WRIGHT CORP: Schenck Moves to Certify Class of Applicants ----------------------------------------------------------------- The Plaintiff in the lawsuit captioned JUSTIN SCHENCK, on behalf of himself and all other similarly situated individuals v. CURTISS-WRIGHT CORPORATION, Case No. 2:18-cv-00164-MPK (W.D. Pa.), asks the Court to enter an order certifying this class: All natural persons residing in the United States (including territories and other political subdivisions): (1) who applied for employment with CWC or any of its subsidiaries; (2) about whom CWC obtained a consumer report for employment purposes from Sterling InfoSystems, Inc. from September 2015 to May 2018; (3) where the consumer report contained a score of "Complete Report-Consider" at the top; and (4) CWC did not send a notice as provided in 15 U.S.C. Section 1681b(B)(3). Mr. Schenck also asks the Court to appoint his counsel as class counsel.[CC] The Plaintiff is represented by: James M. Pietz, Esq. Elizabeth Rabenold, Esq. Taylor E. Gillan, Esq. FEINSTEIN DOYLE PAYNE & KRAVEC, LLC 429 Fourth Avenue Law & Finance Building, Suite 1300 Pittsburgh, PA 15219 Telephone: (412) 281-8400 Facsimile: (412) 281-1007 E-mail: jpietz@fdpklaw.com erabenold@fdpklaw.com tgillan@fdpklaw.com The Defendant is represented by: Marla N. Presley, Esq. Joanna M. Rodriguez, Esq. JACKSON LEWIS P.C. 1001 Liberty Avenue, Suite 1000 Pittsburgh, PA 15222 Telephone: (412) 338-5148 E-mail: Marla.Presley@jacksonlewis.com Joanna.Rodriguez@Jacksonlewis.com CVS PHARMACY: Pension Funds Seek to Certify Classes --------------------------------------------------- In the two class action lawsuits, the Plaintiffs Sheet Metal Workers Local No. 20 Welfare and Benefit Fund, Indiana Carpenters Welfare Fund, and Plumbers Welfare Fund, Local 130, U.A. seek to certify these classes under the Federal Rule of Civil Procedure 23(a) and (b)(3): -- Nationwide Class: "all health plans that, at any time between November 2008 and February 1, 2016, (1) had Caremark, L.L.C., Express Scripts, Medco, OptumRx, or MedImpact (or any of their predecessors) as their pharmacy benefit managers, (2) paid for generic prescription drugs purchased from CVS that were included in CVS's Health Savings Pass program, and (3) paid for those drugs based on a formula containing Usual and Customary price. -- Unjust Enrichment Class: "all health plans that, at any time between November 2008 and February 1, 2016, (1) had Caremark, L.L.C., Express Scripts, Medco, OptumRx, or MedImpact (or any of their predecessors) as their pharmacy benefit managers, (2) paid for generic prescription drugs purchased from CVS that were included in CVS's Health Savings Pass program in Arkansas, Colorado, Connecticut, District of Columbia, Hawaii, Illinois, Indiana, Iowa, Missouri, New Mexico, New York, Oklahoma, and West Virginia, and (3) paid for those drugs based on a formula containing Usual and Customary price." The Plaintiff Plumbers Welfare Fund, Local 130, U.A. also seeks to certify the following classes under Federal Rule of Civil Procedure 23(a) and (b)(3): -- Unfair and Deceptive Conduct Consumer Protection Class "all health plans that, at any time between November 2008 and February 1, 2016, (1) had Caremark, L.L.C., Express Scripts, Medco, OptumRx, or MedImpact (or any of their predecessors) as their pharmacy benefit managers, (2) paid for generic prescription drugs purchased from CVS that were included in CVS's Health Savings Pass program in California, Florida, Illinois, Iowa, Massachusetts, New Jersey, New York, Ohio, and Washington, and (3) paid for those drugs based on a formula containing Usual and Customary price"; and -- Omissions Consumer Protection Class: "all health plans that, at any time between November 2008 and February 1, 2016, (1) had Caremark, L.L.C., Express Scripts, Medco, OptumRx, or MedImpact (or any of their predecessors) as their pharmacy benefit managers, (2) paid for generic prescription drugs purchased from CVS that were included in CVS's Health Savings Pass program in Illinois, Michigan, Nevada, and New Jersey, and (3) paid for those drugs based on a formula containing Usual and Customary price". The following payors are excluded from the proposed Classes: (1) any governmental payors, including Medicare and Medicaid; (2) any health plans that served on Caremark's Client Advisory Committee since January 1, 2008; and (3) any health plans that have had parent, subsidiary, or affiliate relationships with any pharmacy benefit manager at any time since January 1, 2008. Also excluded: (1) CVS, and its management, employees, subsidiaries, and affiliates; and (2) CVS Caremark and its officers and directors. The lawsuits are: SHEET METAL WORKERS LOCAL NO. 20 WELFARE AND BENEFIT FUND, and INDIANA CARPENTERS WELFARE FUND, on behalf of themselves and all others similarly situated, the Plaintiff, vs. CVS PHARMACY INC. and CAREMARK, L.L.C., the Defendants, Case No. 1:16-cv-00046-S (D.R.I.); - and - PLUMBERS WELFARE FUND, LOCAL 130, U.A., on behalf of itself and all others similarly, Plaintiffs, v. CVS PHARMACY INC. and CAREMARK, L.L.C., the Defendants, Case No. 1:16-cv-00447-S (D.R.I.).[CC] Lead Counsel for the Plaintiffs and Proposed Class: Steve W. Berman, Esq. Barbara Mahoney, Esq. Elizabeth A. Fegan, Esq. Zoran Tasic, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Second Avenue, Suite 2000 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 E-mail: steve@hbsslaw.com barbaram@hbsslaw.com beth@hbsslaw.com zorant@hbsslaw.com Liaison Counsel for the Plaintiffs: Stephen M. Prignano MCINTYRE TATE LLP 321 South Main Street, Suite 400 Providence, RI 02903 Telephone: (401) 351-7700, Ext. 227 Facsimile: (401) 331-6095 E-mail: smp@mtlesq.com Counsel for Plaintiffs Sheet Metal Workers Local No. 20 Welfare and Benefit Fund and Indiana Carpenters Welfare Fund: William N. Riley RILEY WILLIAMS & PIATT, LLC 301 Massachusetts Ave Indianapolis, IN 46204 Telephone: (317) 633-5270 E-mail: wriley@rwp-law.com Counsel for Plaintiff Plumbers Welfare Fund, Local 130, U.A. Donald F. Harmon, Esq. BURKE BURNS & PINELLI, LTD. Three First National Plaza Suite 4300 Chicago, IL 60602 Telephone: (312) 541-8600 E-mail: Dharmon@bbp-Chicago.com DALLAS COUNTY ADJUSTERS: Blair Seeks Unpaid Minimum, Overtime Wages ------------------------------------------------------------------- Josh Blair individually and on behalf of all others similarly situated, Plaintiff, v. DALLAS COUNTY ADJUSTERS, INC. AND KENNETH BARNES, Defendants, Case No. 2:19-cv-00139-JRG (E.D. Tex., April 26, 2019) is a collective action against Defendants who employ non-exempt employees to directly and indirectly provide Defendants' vehicle repossession services to Defendants' customers but fail to provide them proper wages as required under the Fair Labor Standards Act ("FLSA"). The complaint alleges that all hours worked by Plaintiff on tasks paid under Defendants' piece rate system were not counted in the total hours worked each workweek, including weekly hours worked in excess of 40 ("Overtime Hours"). Because Defendants did not accurately track and pay for all hours worked, including overtime hours, Defendants violated the FLSA by failing to pay Plaintiffs' minimum wages for all hours worked and overtime compensation for all hours worked in excess of 40 per workweek, says the complaint. Plaintiff Josh Blair is an individual who has worked for Defendants throughout this District within the last three years. Defendants have been involved in vehicle repossession services in various cities throughout Texas over the last three years.[BN] The Plaintiff is represented by: Jay Forester, Esq. Forester Haynie PLLC 1701 N. Market Street, Suite 210 Dallas, TX 75202 Phone: (214) 210-2100 Fax: (214) 346-5909 Email: jay@foresterhaynie.com - and - Corinna Chandler, Esq. Chandler Law, P.C. 3419 Westminster #343G Dallas, TX 75205 Phone: 972-342-8793 Fax: 972-692-5220 Email: chandler@chandlerlawpc.com DEITSCH AND WRIGHT: Florida Class Certified in McCray FDCPA Suit ---------------------------------------------------------------- The Hon. Elizabeth A. Kovachevich grants the Plaintiff's Motion for Class Certification and Appointment of Class Representative and Class Counsel in the lawsuit captioned DESSERI MCCRAY, on behalf of herself and all others similarly situated v. DEITSCH AND WRIGHT, P.A., Case No. 8:18-cv-00731-EAK-SPF (M.D. Fla.). Pursuant to Rule 23(c) of the Federal Rules of Civil Procedure, the Court certifies a class defined as: All individuals in the State of Florida to whom Defendant Deitsch and Wright, P.A. sent, between March 27, 2017, and March 27, 2018, and in an attempt to collect a debt, a collection letter based on the same template used to create the collection letter sent to Plaintiff Desseri McCray, attached as "Exhibit A" to the complaint, (Doc. 1-1). Plaintiff Desseri McCray is appointed as lead plaintiff and representative of the class. Pursuant to Rule 23(g), attorneys Amorette Rinkleib, Esq., of Thompson Consumer Law Group, PLLC, and Alex D. Weisberg, Esq., of Weisberg Consumer Law Group, PA, are appointed as lead counsel of the class. The lawsuit arises from alleged unlawful debt collection letters from the Defendant, which violate the Fair Debt Collection Practices Act.[CC] EMPLOYER FLEXIBLE: Faces Lopez Suit over Background Checks ---------------------------------------------------------- RENE LOPEZ, individually and on behalf of all others similarly situated, Plaintiff v. EMPLOYER FLEXIBLE HR, LLC; EMPLOYER FLEXIBLE HR INCORPORATED; EMPLOYER FLEXIBLE MANAGEMENT, LLC; and DOES 1 to 10, Defendants, Case No. 2:19-cv-02408 (C.D. Cal., March 29, 2019) alleges violations of the Fair Credit Reporting Act. The case is assigned to Judge Dolly M. Gee and referred to Judge John E. Mcdermott. Employer Flexible HR, LLC provides payroll, employee benefits, risk management, and workers' compensation services. [BN] The Plaintiff is represented by: Darren M. Cohen, Esq. KINGSLEY & KINGSLEY, APC 16133 Ventura Blvd., Suite 1200 Encino, CA 91436 Telephone: (818) 990-8300 Facsimile: (818) 990-2903 E-mail: dcohen@kingsleykingsley.com EPIC SYSTEMS: Faegre Baker Discusses Arbitration Ruling ------------------------------------------------------- Ehren Fournier, Esq. -- ehren.fournier@FaegreBD.com -- of Faegre Baker Daniels, in an article for JDSupra, reports that Companies routinely turn to arbitration as an efficient and cost-effective means of resolving disputes. Increasingly, these same companies use arbitration to prohibit consumers and employees from commencing class actions. While certain courts look with skepticism on class-action waivers in arbitration agreements, it is clear from the Supreme Court's decisions, beginning with AT&T Mobility LLC v. Concepcion through the Court's most recent decision in Epic Systems Corporation v. Lewis, that class action arbitration waivers do not violate the law. In Epic Systems, employees pointed to the Federal Arbitration Act's (FAA) "savings clause," which allows courts to refuse to enforce arbitration agreements "upon such grounds as exist at law or in equity for the revocation of any contract," arguing that it allowed employees to use the National Labor Relations Act (NLRA) to void class-action waivers in arbitration agreements. Because the NLRA guarantees workers "the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection" the employees argued that the NLRA displaced the FAA. The Court disagreed. Relying on its prior precedents, the Court again stated that the savings clause only allows courts to invalidate arbitration agreements in cases where "generally applicable contract defenses such as fraud, duress, or unconscionability" apply. It does not apply when a party seeks to invalidate an arbitration clause in a way that derives "from the fact that an agreement to arbitrate is at issue." The Court also found that even if the savings clause did apply, the NLRA focuses on the right to "organize unions and bargain collectively." It therefore does not prevent class-wide arbitration. Epic Systems reiterates the Court's deference to arbitration agreements. In light of that deference, when drafting an arbitration agreement with a class action waiver, think about including the following points: -- Opt-out Option. Affording the consumer or employee a meaningful opportunity to opt out of the class action waiver can increase the chances of the clause being found enforceable. -- Conspicuous Language. The more prominent, clear and understandable a provision is, the more it is likely to be enforced. Clauses that are buried in lengthy agreements are more likely to be deemed procedurally unconscionable, as they give rise to surprise. -- Delegation to Arbitrator to Decide Enforcement. Clauses with clear and express language authorizing the arbitrator to decide whether the class action waiver is enforceable are enforceable under United States Supreme Court precedent. For those seeking enforcement of such clauses, resorting to an arbitrator's assessment of unconscionability may be preferable. One caveat, however: arbitrators, particularly those with legal training, generally attempt to follow governing law and there is no assurance that more favorable treatment will be provided by an arbitrator if governing state law suggests the clause is unconscionable. -- Authority to Allow Class Action. Under Stolt-Nielsen, S.A. v. AnimalFeeds, Int'l Corp., silence on class arbitration is tantamount to lack of authority to allow a class action to proceed in arbitration. Incorporating an arbitration association's rules that permit class arbitration can cloud the issue. Language expressly limiting such authority, if that is what is desired, not only clarifies matters, but puts the other party on notice of the rights it is waiving by agreeing to arbitrate. -- Cost and Fee Provisions Beneficial to Consumer/Employee. One of the purported benefits of class actions is the ability for litigants to pursue redress of grievances that would be cost-prohibitive if done on an individual basis. Therefore, including provisions that ameliorate the cost of arbitration, in order to make pursuit of claims on an individual basis more affordable, can influence enforcement. -- Severance Language. If one wishes to arbitrate even if one or two provisions are determined unconscionable, it is best to include clear severance language that encourages a court to enforce those aspects of an arbitration agreement that are found valid. -- Claimant-Friendly Forum. Another cost of arbitrating is having to travel for the hearing. Clauses that select a hearing locale most convenient to claimants can be a factor in determining enforceability. If you have questions about class action arbitration waivers in construction contracts, or arbitration agreements in general, seek out the advice of an experienced attorney in those industries. [GN] FARM BUREAU: Chavez Seeks to Certify Insurance Agent Class ---------------------------------------------------------- In the class action lawsuit, MEDBOR CHAVEZ, individually and on behalf of all others similarly situated, the Plaintiff, vs. FBL FINANCIAL GROUP, INC., FARM BUREAU PROPERTY & CASUALTY INS. CO., FARM BUREAU LIFE INSURANCE, and WESTERN AGRICULTURAL INSURANCE COMPANY, the Defendants, Case No. 2:17-02393-DDC-ADM (D. Kan.), the Plaintiff ask the Court for an order: 1. granting class certification of: "all misclassified Kansas Insurance Agents pursuing Kansas state law claims" 2. designating Mr. Chavez as Class Representative; and 3. designating McInnes Law LLC, Rex A. Sharp, P.A. and Rebein Brothers as Class Counsel. The Plaintiff asserts claims against Defendants for Kansas Wage Payment Act violations, quantum meruit and unjust enrichment. Although Farm Bureau purports to classify its Kansas Insurance Agents as independent contractors, they are subject to an incredible amount of supervision, oversight and control, the lawsuit says. Farm Bureau offloads the costs associated with selling its products onto these insurance agents but retains all the benefits of having a captive workforce. The Plaintiff exposes Defendants' unlawful practices for what they are: a workplace scheme to defraud Kansas Insurance Agents by misclassifying them as independent contractors, while retaining a right to control them as employees.[CC] Attorneys for the Plaintiffs: Jack McInnes, Esq. MCINNES LAW LLC 1900 West 75 th Street, Suite 120 Prairie Village, KS 66208 Telephone: (913) 220-2488 Facsimile: (913) 273-1671 E-mail: jack@mcinnes-law.com - and - Rex. A. Sharp, Esq. Ryan Hudson, Esq. Larkin Walsh, Esq. REX A. SHARP, P.A. 5301 W. 75 th Street Prairie Village, KS 66208 Telephone: (913) 901-0505 Facsimile: (913) 901-0419 E-mail: rsharp@midwest-law.com rhudson@midwest-law.com lwalsh@midwest-law.com - and - David J. Rebein, Esq. Pablo Mose, Esq. REBEIN B ROTHERS TRIAL LAWYERS 810 Frontview, P.O. Box 1147 Dodge City, KS 67801 Telephone: 620 227 8126 E-mail: David@rbr3.com Pablo@rbr3.com FELICITY HUFFMAN: To Plead Guilty in College Admissions Case ------------------------------------------------------------ Zack Huffman, writing for Courthouse News Service, reported that the actress Felicity Huffman is among 13 parents in the sweeping college admissions scandal who will plead guilty to bribery and fraud charges, federal prosecutors said on April 8. Along with dozens of other parents, the defendants were arrested last month and charged with conspiring with William "Rick" Singer who ran a college admissions program called the Edge College & Career Network. Prosecutors say Huffman, who starred on ABC’s "Desperate Housewives," paid $15,000 to have an agent of Singer correct her daughter’s SAT test. Similar charges are believed to still be pending against "Full House" actress Lori Loughlin and her husband, fashion designer Mossimo Giannulli. Huffman’s husband, the actor William H. Macy, was not charged. Unlike the entrance-exam scheme, Loughlin and Giannnulli are said to have secured their daughters’ college admissions by having the girls listed as college athletes, thus lowering the academic threshold they would face for entry. Singer also operated a third scheme involving a nonprofit fund that was allegedly used to launder bribe payments, leaving some parents facing additional tax-fraud charges. All of the defendants who improperly took tax deductions for the bribe payments have agreed to cooperate with the IRS to pay back taxes, according to a statement from the Department of Justice. Plea hearings have not yet been scheduled by the court. In addition to Huffman, the parents pleading guilty are Gregory Abbott, Marcia Abbott, Jane Buckingham, Gordon Caplan, Robert Flaxman, Agustin Huneeus, Marjorie Klapper, Peter Jan Sartorio, Stephen Semprevivo, Devin Sloane, Bruce Isackson and Davina Isackson. Prosecutors say Michael Center, who was the head coach of men’s tennis at University of Texas at Austin, also agreed to plead guilty on April 8. Mail-fraud and money-laundering conspiracy charges provide for a maximum sentence of 20 years in prison, plus six-figure fines. FLEX LTD: Order Naming Lead Plaintiff/Counsel in Kipling Vacated ---------------------------------------------------------------- In the case, DAVID KIPLING, et al., Plaintiffs, v. FLEX LTD., et al., Defendants, Case No. 18-CV-02706-LHK (N.D. Cal.), Judge Lucy H. Koh of the U.S. District Court for the Northern District of California, San Jose Division, vacated the Court's order appointing Bristol County Retirement System as the Lead Plaintiff and FDAzar and Thornton Law Firm as the Lead Counsel. On May 8, 2018, Plaintiff Kipling filed a securities class action complaint against Defendant Flex, and published notice to potential Lead Plaintiffs. On Oct. 1, 2018, the Court appointed Bristol as the Lead Plaintiff pursuant to the Private Securities Litigation Reform Act ("PSLRA"). On Nov. 28, 2018, Bristol filed an amended complaint against Flex. Judge Koh finds that Kipling's 17-page original complaint framed the "nature of the action" as arising from Flex's April 26, 2018 disclosure that the company was investigating allegations by an employee that the Company improperly accounted for obligations in a customer contract and certain related reserves. The original complaint alleged that Flex made misleading statements and failed to disclose that Flex's internal financial controls were deficient and that the company had improperly accounted for certain obligations. Kipling published notice of its complaint on May 8, 2018. Bristol's 85-page amended complaint filed on Nov. 28, 2018 focuses on an entirely different factual scenario and set of misrepresentations. The amended complaint states that the action arises from Flex's misrepresentations about the strength of its partnership with key customer Nike. The May 8, 2018 original complaint never mentioned Nike at all. In addition, Bristol's amended complaint expands the putative class to include shareholders who owned "exchange-traded options" on Flex common stock, whereas Kipling's original complaint (and notice) defined the class as only those who purchased "Ordinary Shares" of Flex stock. Moreover, Bristol's amended complaint extends the class period by six months. Together, Bristol's changes to the amended complaint make it likely that individuals who could now be considered potential Lead Plaintiffs would have disregarded the earlier notice. The Judge also finds that that where changes to a securities class action complaint make it likely that individuals who could now be considered potential Lead Plaintiffs would have disregarded the earlier notice, courts in the district and elsewhere have ordered lead plaintiffs to republish notice under the PSLRA. Although courts typically disfavor republication when a complaint is amended, an amended complaint with substantial alteration of the claims can tilt the balance in favor of republication. Such an approach accords with the PSLRA's purpose of ensuring that absent class members and potential lead plaintiffs are aware of their rights. Because Bristol's amended complaint substantially alters the class's allegations against Flex, Judge Koh vacated the Court's order appointing Bristol as the Lead Plaintiff, and ordered Bristol to publish notice of its amended complaint to reopen the Lead Plaintiff appointment process in compliance with the PSLRA by April 12, 2019. Because the Court will reopen the Lead Plaintiff process, the Judge denied as moot putative intervenor Iron Workers Local 580 Joint Funds' motion to intervene, and denied as moot Bristol's motion for leave to file a second amended complaint. A full-text copy of the Court's April 3, 2019 Order is available at https://is.gd/SjVS43 from Leagle.com. David Kipling, Plaintiff, represented by Lesley F. Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP, Charles Henry Linehan -- CLINEHAN@GLANCYLAW.COM -- Glancy Prongay and Murray LLP, Ex Kano S. Sams, II -- ESAMS@GLANCYLAW.COM -- Glancy Prongay & Murray LLP, Lionel Z. Glancy -- LGLANCY@GLANCYLAW.COM -- Glancy Prongay & Murray LLP, Robert Vincent Prongay -- rprongay@glancylaw.com -- Glancy Prongay & Murray LLP & Ivy T. Ngo -- ngoi@fdazar.com -- Franklin D. Azar and Associate, P.C. LEAD PLAINTIFF Bristol County Retirement System, Plaintiff, represented by David Bricker, Thornton Law Firm, Ivy T. Ngo, Franklin D. Azar and Associate, P.C., Guillaume Buell, Thornton Law Firm LLP & Paul R. Wood, Franklin D. Azar & Associates, P.C., pro hac vice. Flex Ltd., Michael M. McNamara, Christopher E. Collier, Michael Dennison & Kevin Kessel, Defendants, represented by Sara B. Brody -- SBRODY@SIDLEY.COM -- Sidley Austin LLP, Nicole Marie Ryan -- NICOLE.RYAN@SIDLEY.COM -- Sidley Austin LLP & Stephen Chang -- STEPHEN.CHANG@SIDLEY.COM -- Sidley Austin LLP. Helene Gryfakis, Movant, represented by Laurence Matthew Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A. Iron Workers Local 580 Joint Funds, Intervenor, represented by David Ronald Stickney, Bernstein, Litowitz, Berger & Grossmann, Avi Josefson, Bernstein Litowitz Berger Grossmann LLP, Jonathan Daniel Uslaner, Bernstein Litowitz et al & Michael D. Blatchley, Bernstein Litowitz Berger Grossmann LLP, pro hac vice. GAYLOR ELECTRIC: Hodge Suit Removed to E.D. Washington ------------------------------------------------------ The case captioned as KEVIN HODGE and JOSE VAZQUEZ, individually and on behalf of all others similarly situated, Plaintiff, v. GAYLOR ELECTRIC, INC., an Indiana corporation, Defendant, Case No. 19201296-32 was removed from the Superior Court of the State of Washington in and for the County of Spokane, to the United States District Court for the Eastern District of Washington on April 24, 2019, and assigned Case No. 2:19-cv-00133. Plaintiffs' Complaint alleges damages for failure to provide rest breaks, unpaid wages, including overtime, and willful refusal to pay wages. Plaintiff Hodge further alleges disability discrimination, violation of the tort of wrongful discharge, violation of public policy, and willful refusal to pay wages.[BN] The Defendants are represented by: RENEA I. SAADE, ESQ. WILLIAM J. KIM, ESQ. LITTLER MENDELSON One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 Phone: 206.623.3300 Fax: 206.447.6965 GENERAL ATLANTIC: Securities Class Action Dismissal Affirmed ------------------------------------------------------------ Ambrogio Visconti, writing for Global Legal Chronicle, reports that Paul, Weiss won the affirmance of the dismissal of a securities class action against General Atlantic LLC (GA), its portfolio company TriNet Group, Inc., various TriNet officers and directors, and various underwriters. The complaint, filed in 2015 in the Northern District of California on behalf of a putative class of shareholders in TriNet, a human resources outsourcing company, alleged that TriNet's offering materials and other filings misrepresented TriNet's risk assessment and data analytics capabilities and its exposure to medical and workers compensation insurance claims. The TriNet shareholders alleged that the misrepresentations inflated Trinet's share value, which subsequently sank following a number of adverse disclosures concerning such claims. In affirming the district court's dismissal of all claims, the Ninth Circuit found that the plaintiff had failed to allege a false statement of material fact. The court held that at least one of the challenged statements was an opinion regarding which the plaintiff had failed to allege subjective falsity, and that the plaintiff had not made a sufficient case that the other statements were false when made. The Paul, Weiss team included litigation partner Allan Arffa -- aarffa@paulweiss.com -- who argued the appeal, and of counsel Charles Davidow. [GN] GODADDY.COM: Judge Certifies Class in Telemarketing Lawsuit ----------------------------------------------------------- Courthouse News Service reported that a federal judge certified a class of people who received telemarketing calls on their cellphones from GoDaddy.com from Nov. 4, 2014 through Oct. 19, 2016. A copy of the Sealed Order is available at: https://is.gd/OHIX03 GOOGLE INC: Moore & Van Discusses Cy Pres Ruling ------------------------------------------------ Tony Lathrop, Esq. -- tonylathrop@mvalaw.com -- of Moore & Van Allen PLLC, in an article for JDSupra, reports that the Frank v. Gaos, 586 U. S. __ (2019) class action case resented an opportunity for the U.S. Supreme Court to determine the limits on the use of the cy pres doctrine in the context of class action settlements to distribute damages paid by a defendant company to entities other than the plaintiff class. On March 20, 2019, the U.S. Supreme Court halted Gaos in its tracks, vacating the Ninth Circuit's decision approving the contested cy pres settlement and remanding the case for further proceedings to determine whether any named plaintiffs had sufficient standing in light of the Supreme Court's decision in Spokeo, Inc. v. Robins, 578 U. S. ___ (2016). Spokeo established that statutory violations alone, without concrete injury, cannot support Article III standing. The question in Gaos is whether the named plaintiffs' allegations that Google violated the federal Stored Communications Act, 18 U.S.C. § 2707(c) (SCA) by disclosing their search terms to third-party websites through a particular mechanism known as referral headers is sufficient. The SCA prohibits disclosure of electronic communications being stored by a person or entity providing electronic communication services to the public and creates a private right of action, allowing statutory damages of at least $1,000 per violation. The potential class in Gaos consisted of more than 129 million individuals and covered a period of eight years. Companies facing class action litigation are under enormous pressure and often choose to settle even meritless cases early in the litigation to mitigate risk. The Supreme Court clarified in Gaos that if class action plaintiffs have no standing to sue in the first instance, there is no mechanism for settling the case. This threshold question must be answered before plaintiffs can extract a settlement from defendants. How It Got This Far Prior to reaching a settlement agreement, Google moved to dismiss this case in the District Court for lack of standing several times. The company ultimately abandoned the challenge because the Supreme Court dismissed its review of the Ninth Circuit case the District Court had relied upon in finding standing sufficient. The Supreme Court then decided Spokeo and, despite Google bringing Spokeo to its attention, the Ninth Circuit did not address the decision when upholding the District Court's settlement approval. So, Gaos reached the Supreme Court without consideration of how Spokeo affects the analysis of plaintiffs' standing and without any objection to standing by the parties. Google articulated the difficulty of its position and the utility of class settlements in its brief opposing the petition for certiorari: As the standards of the courts of appeals reflect, parties should have the flexibility to compromise cases like this one that limp past the pleadings stage yet still pose a risk of huge liability based on uncertain substantive law at the time of settlement…. given a class size of 129 million individuals and statutory damages of $1,000 (18 U.S.C. § 2707(c)), even the highly remote possibility of class-wide liability in a litigated class action at the time of settlement justified a compromise resolution of the case. The United States raised the question of standing before the Supreme Court in an amicus brief in support of neither party. After probing the issue during oral arguments, the Supreme Court ordered the parties to file supplemental briefing on standing to aid in its determination of whether to reach the merits of this case. Clearing the Standing Hurdle A class action case differs from the more common one-on-one lawsuit in a lot of respects, particularly when it comes to reaching a settlement. In essence, a settlement is an agreement for the plaintiff to accept some form of remediation from a defendant in exchange for giving up a defined scope of further legal claims against the defendant related to that issue. In one-on-one lawsuits, the parties can agree to settlement terms without the intervention of the courts as the rights they are affecting are solely their own. In the class action context, however, a small number of named plaintiffs and class counsel purport to represent the interests of a larger class of absent individuals. And a settlement will be binding on all class members if they do not opt-out, given notice and the opportunity. Therefore, the Federal Rules of Civil Procedure require court supervision over the class action settlement process to ensure that any settlement reached between the named plaintiffs and defendants is "fair, reasonable, and adequate," and members of the class have an opportunity to object to the settlement terms prior to court approval. What does not differ in the class action context is the requirement that a plaintiff have standing in order to invoke the jurisdiction of the court to preside over the dispute. The Supreme Court cited to a footnote in its 1976 Simon v. Eastern Kentucky Welf. Rights Org. case, which explained "[t]hat a suit may be a class action…adds nothing to the question of standing, for even named plaintiffs who represent a class 'must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.'" Simon did not address the standing requirement in relation to class action settlement approval though. Citing to the Simon footnote, the Supreme Court stated the logic simply in Gaos: "A court is powerless to approve a proposed class settlement if it lacks jurisdiction over the dispute, and federal courts lack jurisdiction if no named plaintiff has standing." Given the breadth of new legal and factual issues proffered in the supplemental briefs filed with the Supreme Court, it remanded the case for resolution of the standing question in the District Court or Ninth Circuit. The majority stated that "[n]othing in our opinion should be interpreted as expressing a view on any particular resolution of the standing question." Rejecting the Cy Pres Settlement A Supreme Court decision regarding the propriety of the cy pres settlement will have to wait for another day or another case. Justice Thomas, however, asserted that the Gaos plaintiffs had standing and the Court should have rejected the cy pres settlement in this case. In the Dissent, Justice Thomas reiterated his position that "a plaintiff seeking to vindicate a private right need only allege an invasion of that right to establish standing," and the SCA and state laws plaintiffs relied upon created such private rights. With respect to the settlement terms, Justice Thomas took the position that cy pres payments are not to be considered a form of relief for class members: Whatever role cy pres may permissibly play in disposing of unclaimed or undistributable class funds, cy pres payments are not a form of relief to the absent class members and should not be treated as such (including when calculating attorney's fees). And the settlement agreement here provided no other form of meaningful relief to the class. (citation omitted). Justice Thomas pointed out several shortcomings of the settlement. The fact that class counsel and named plaintiffs received compensation while the class received nothing, strongly suggested to him that the class was not adequately represented, as required by Federal Rule of Civil Procedure 23. He rejected the notion that the settlement was fair or reasonable, as required, when there was no benefit to the class members. And he raised the overarching question of whether or not the class action mechanism was the superior method in a case like this: "I question whether a class action is 'superior to other available methods for fairly and efficiently adjudicating the controversy' when it serves only as a vehicle through which to extinguish the absent class members' claims without providing them any relief." Is Justice Thomas' opinion on the propriety of the cy pres settlement representative of the Court's position on the merits? We may never hear the Court's view if the Gaos class plaintiffs cannot overcome the standing hurdles erected by Spokeo. But, as class respondents noted in their supplemental briefing, "[t]hat question, if important, will recur." We will keep you posted. [GN] GREATBANC TRUST: Settles ERISA Class Action for $2.3MM ------------------------------------------------------ Law360 reports that Greatbanc Trust Co. has agreed to pay nearly $2.3 million to current and former workers of a home care company to settle an Employee Retirement Income Security Act class action. [GN] HAROLD CLARKE: Court Denies 2nd Motion to Certify Class ------------------------------------------------------- In the class action lawsuit TERRY A. RIGGLEMAN, the Plaintiff, v. HAROLD CLARKE AND MARK AMONETTE, the Defendants, Case No. 5:17-cv-00063 (W.D.Va.), the Hon. Judge Norman K. Moon entered an order denying Plaintiff's second motion to certify class.[CC] HOME DEPOT: Camp Suit Removed to N.D. California ------------------------------------------------ The case captioned as DELMER CAMP, individually, and on behalf of all others similarly situated; and, ADRIANA CORREA, individually, and on behalf of all others similarly situated; Plaintiffs, v. HOME DEPOT U.S.A., INC., a Delaware corporation; and, DOES 1-10, inclusive, Defendants, Case No. 19CV344872 was removed from the Superior Court of California, County of Santa Clara to the United States District Court for the Northern District of California on April 24, 2019, and assigned Case No. 4:19-cv-02240. Plaintiffs seek to bring this action on behalf of a class consisting of all persons employed by Home Depot as non-exempt employees in California between March 20, 2015 and the present "whose aggregate work time for purposes of calculating payroll was lower after application of time rounding . . . than the aggregate work time captured by the timekeeping system before applying rounding to daily total time worked".[BN] The Defendants are represented by: DONNA M. MEZIAS, ESQ. LIZ K. BERTKO, ESQ. AKIN GUMP STRAUSS HAUER & FELD LLP 580 California Street, Suite 1500 San Francisco, CA 94104 Phone: 415-765-9500 Facsimile: 415-765-9501 Email: dmezias@akingump.com lbertko@akingump.com HUNTINGTON BANCSHARES: Status Hearing Set for May 31 ---------------------------------------------------- In the class action lawsuit, William Hannah, the Plaintiff, vs. Huntington Bancshares Incorporated, the Defendant, Case No. 1:18-cv-07564 (N.D. Ill.), the Hon. Judge Andrea R. Wood granted a joint motion for entry of agreed protective order. According to the docket entry made by the Clerk, the Plaintiff's motion to proceed as a collective action and memorandum of law is entered and continued to the next status hearing. Another status hearing is set for May 31, 2019 at 9:00 a.m.[CC] HUNTINGTON NATIONAL: Court Grants Bid to Dismiss Mustric Suit ------------------------------------------------------------- In the case, THOMAS O. MUSTRIC, et al., Plaintiffs, v. HUNTINGTON NATIONAL BANK, et al., Defendants, Case No. 2:18-cv-1279 (S.D. Ohio), Judge George C. Smith of the U.S. District Court for the Southern District of Ohio, Eastern Division, granted Huntington's Motion to Dismiss for Lack of Subject Matter Jurisdiction. The Plaintiff filed the case against Huntington and the Office of Comptroller of the Currency on Oct. 22, 2018. The case is based on underlying litigation before the Franklin County Common Pleas Court, Division of Domestic Relations involving his former spouse Marcellina Mustric and a foreclosure proceeding also in the Franklin County Court of Common Pleas. The foreclosure action resulted in certain property being sold at auction. As a result of the sale, the Franklin County Sheriff issued a check in the amount of $86,475.99 made payable to the Plaintiff as trustee of the Helen L. Mustric Revocable Trust. Marcellina Mustric filed a motion to have the check deposited into the Plaintiff's guardian ad litem's trust account and the Domestic Court ordered the Sheriff to release the check to the Plaintiff's guardian ad litem. The Plaintiff seeks to recover $86,475.99 that he claims was fraudulently paid into his guardian ad litem account. The Plaintiff alleges that the Court has jurisdiction pursuant to the Class Action Fairness Act ("CAFA"). Huntington filed a motion to dismiss on Nov. 11, 2018. Huntington argues that the Plaintiff cannot rely on CAFA to establish jurisdiction because he cannot maintain his claims as a class action. The Plaintiff has not filed a response to Huntington's Motion and the time to do so has now expired. Judge Smith finds that the Plaintiff is pro se and a non-attorney. As a result, he cannot adequately represent a class. Because a he must satisfy all requirements of Rule 23(a) to maintain a class action, the failure of the adequacy requirement is by itself fatal and further analyses of the requirements set forth by Rule 23 are unnecessary. Thus, it is clear from the face of the Complaint that the Plaintiff cannot maintain a class action, and therefore CAFA does not provide this Court with subject-matter jurisdiction. Next, the Judge finds that the only specified damages alleged by the Plaintiff are $86,475.99. He also does not assert that an aggregate class damages would exceed $5 million. Therefore, the Plaintiff is unable to establish jurisdiction because the amount in controversy is not met. Huntington also argues that dismissal is required by the "home rule" and "local controversy" exceptions to CAFA jurisdiction. However, because the Plaintiff cannot establish the required amount in controversy, the Judge need not consider or resolve those issues. Finally, Huntington argues in the alternative that the Plaintiff's Complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(6). However, because he has already concluded it lacks subject-matter jurisdiction over the Plaintiff's claims, the Judge need not consider or resolve these arguments. For the foregoing reasons, Judge Smith granted Huntington's Motion to Dismiss. Because the Court's lack of subject-matter jurisdiction applies equally to the remaining defendant, Director Larry Hattix of the Office of the Comptroller of the Currency, the Plaintiff's claims against Hattix are also dismissed. The Clerk will remove Document 7 from the Court's pending motions list and close the case. A full-text copy of the Court's April 3, 2019 Opinion and Order is available at https://is.gd/cEpgRj from Leagle.com. Thomas Owen Mustric, Trustee Helen L. Mustric Trust, Plaintiff, pro se. Thomas Owen Mustric, Individual, Plaintiff, pro se. Huntington National Bank, Defendant, represented by Kevin L. Murch -- kmurch@perez-morris.com -- Perez & Morris, LLC. HUNTINGTON NATIONAL: Hannah Seeks to Certify FLSA Collective Action ------------------------------------------------------------------- In the class action lawsuit WILLIAM HANNAH, Individually, and on Behalf of All Others Similarly Situated, the Plaintiff, vs. HUNTINGTON BANCSHARES INCORPORATED d/b/a THE HUNTINGTON NATIONAL BANK, the Defendant, Case: 1:18-cv-07564 (N.D. Ill), the Plaintiff moves the Court to conditionally certify a collective action and to issue notice to similarly situated mortgage loan officers of the pending Fair Labor Standards Act claims so that all affected current and former employees will have the opportunity to join the collective action and exercise their rights under the FLSA. The Plaintiff and the putative collective were and are non-exempt employees indisputably entitled to overtime pay at a rate of time-and-a-half their regular rates of pay. HNB's MLOs uniformly shared the same job duties, compensation plan, and terms and conditions of employment, and all were subject to HNB’s policies and practices which precluded overtime pay for all hours worked in excess of 40 in any given workweek.[CC] Attorneys for the Plaintiff and the Putative Class and Collective: Anna M. Ceragioli, Esq. James B. Zouras, Esq. Ryan F. Stephan, Esq. Anna M. Ceragioli, Esq. STEPHAN ZOURAS, LLP 100 N Riverside Plaza, Suite 2150 Chicago, IL 60606 Telephone: (312) 233-1550 E-mail: jzouras@stephanzouras.com rstephan@stephanzouras.com aceragioli@stephanzouras.com INTERCOAST COLLEGES: Court Compels Arbitration in Kourembanas ------------------------------------------------------------- The United States District Court for the District of Maine issued an Order granting Defendant’s Motion to Compel Arbitration in the case captioned STEPHANIE KOUREMBANAS, et al., Plaintiffs, v. INTERCOAST COLLEGES, Defendant. No. 2:17-cv-00331-JAW. (D. Me.). The defendant moved to compel arbitration and to dismiss the lawsuit. The plaintiffs are four former students who signed enrollment agreements with the defendant, a for-profit college; the enrollment agreements contained arbitration provisions. The students filed a suit against the defendant alleging unfair and deceptive trade practices, breach of contract, fraudulent inducement to contract, as well as intentional and negligent misrepresentation. InterCoast argues that the Enrollment Agreements are covered under the Federal Arbitration Act (FAA) and that the Court should compel arbitration because: (1) there is an enforceable written agreement to arbitrate (2) the disputed issues between InterCoast and the Plaintiffs fall within the scope of the arbitration agreement and (3) InterCoast has not waived its right to arbitrate these disputed issues. InterCoast says that when each Plaintiff reviewed, signed, and initialed the Enrollment Agreement, they entered into a contract which contained an agreement to arbitrate any dispute arising from enrollment, other than grades and no matter how described, pleaded, or styled. As to the second point, InterCoast argues the issues in this case fall within the arbitration agreement since the clause is broadly worded in stating any dispute arising from enrollment at InterCoast Career Institute, other than grades and no matter how described, pleaded, or styled. Lastly, InterCoast asserts that it has not waived its right to arbitrate and that the Plaintiffs do not assert otherwise. InterCoast argues consequently that because the issues before the Court are arbitrable, the Court should dismiss the case and that dismissal is advantageous on various grounds. The Plaintiffs argue the Court should deny InterCoast's motion to compel arbitration and dismiss the case, because (1) the arbitration clauses are not enforceable as ICCI is not a legally organized entity and lacked any capacity to contract with the Plaintiffs and (2) the arbitration clauses are unconscionable. At oral argument, the Plaintiffs also asserted InterCoast engaged in fraud and fraudulently induced them to enter their Enrollment Agreements. The Plaintiffs claim that the arbitration provisions in their Enrollment Agreements are unenforceable under common law principles of corporate and contract law. Specifically, the Plaintiffs aver that the arbitration clauses are not enforceable because there is no evidence that either InterCoast Career Institute or the entity for which it claims to have been a d/b/a, InterCoast Colleges ever has been validly organized as a corporation" and consequently, InterCoast is not a legal entity capable of enforcing rights under a contract it purports to have entered with Plaintiffs. Lastly, the Plaintiffs contend that the arbitration clauses are unconscionable. The Plaintiffs claim the issue of whether a valid arbitration agreement exists is to be decided with reference to state contract law principles. Under Maine law, the Plaintiffs assert, the central issue is whether there was a mutual understanding by both parties to arbitrate. Existence of Enrollment Agreements and the Validity of the Agreements to Arbitrate Here, the Plaintiffs claim InterCoast engaged in fraud in its representations of its corporate existence and it fraudulently induced them to enter their Enrollment Agreements: InterCoast, to induce Plaintiffs to enter into contracts to enroll in the InterCoast LPN Program, made positive statements of fact regarding the quality and content of the education it would provide, and the accreditation status of the program, that were false, material to the contract, and relied upon by Plaintiffs in deciding to enroll [and] InterCoast knew that its statements regarding the quality and content of the education it promised to provide to Plaintiffs, and the program's accreditation status, were false at the time they were made and did not intend to satisfy the statements at the time they were made. At oral argument, the Plaintiffs claimed that InterCoast was hiding the ball as to its corporate identity. Because the Plaintiffs' allegations of fraud pertain to the contract as a whole, not the arbitration clause specifically, whether InterCoast fraudulently induced the Plaintiffs into entering the contracts is for an arbitrator to decide. The Enrollment Agreements' arbitration clauses provide, any dispute arising from enrollment at InterCoast Career Institute, other than grades and no matter how described, pleaded, or styled, shall be resolved by binding arbitration under the Federal Arbitration Act. The Plaintiffs have not otherwise argued that the clause is ambiguous as to whether it covers their claims or that their claims falls outside its scope. Accordingly, because the Plaintiffs' claim of fraudulent inducement concerns the validity of the contract in its entirety, this is a question for an arbitrator, not this Court, to determine. Existence of the Enrollment Agreements and Unconscionability In contrast to the Plaintiffs' first argument, the Plaintiffs' two remaining arguments are proper for this Court to resolve because one questions the existence of the contract itself and the other contends the arbitration clause is unconscionable. Nonregistered Legal Entity and Enforceability of Contracts Whether an unregistered entity, which serves as a d/b/a of registered and incorporated corporation, may enforce a contract concerns whether there was the requisite mutual assent necessary for a contract to be formed. Although there is limited authority on this question, the Court concludes that under Maine law an unregistered legal entity may enforce a contract. The Parties' Positions The Plaintiffs claim that there is no evidence that either InterCoast Career Institute or the entity for which it claims to have been a d/b/a, InterCoast Colleges' ever has been validly organized as a corporation and that it cannot enforce the Enrollment Agreements. InterCoast replies that the fact that it signed the Enrollment Agreements under its trade name InterCoast Career Institute rather than its corporate name Inter-Coast Internal Training Inc. does not undermine the validity of the Enrollment Agreements because a party may be sued under its own name or the name it chooses to use in transactions, and the use of such a name does not invalidate a contract. InterCoast says while the Plaintiffs may have incorrectly named InterCoast Colleges and not Inter-Coast International Training, Inc. as the Defendant, they understood that they were dealing with a corporate entity and that InterCoast Career Institute" was its trade name. InterCoast's Prior Corporate Disclosures and Inter-Coast International Training, Inc.'s Registration The Plaintiffs sued InterCoast Colleges, d/b/a InterCoast Career Institute. The Plaintiffs allege that InterCoast Colleges is a California corporation that operates for-profit. In Maine, InterCoast did business under the name of InterCoast Career Institute. 1. It does not have a parent corporation; 2. There is no publicly held corporation owning 10% or more of the stock of Defendant Intercoast Career Institute. Standing to Enforce Enrollment Agreements Under Maine law, mutual assent means the parties agree to be bound by all its material terms, the assent is either expressly or impliedly manifested in the contract, and the contract is sufficiently definite to enable the court to ascertain its exact meaning and fix exactly the legal liabilities of each party. It is not clear whether InterCoast properly registered its trade name to conduct business in Maine before its authority to operate as a foreign corporation was revoked in August 2016. However, even assuming InterCoast did not, its noncompliance does not mean the contract between InterCoast Career Institute/InterCoast Colleges (neither of which was formally registered or incorporated in Maine) and the Plaintiffs is unenforceable as a matter of law. Unconscionability The Plaintiffs argue the arbitration clauses in the Enrollment Agreements are unconscionable because: (1) of being inconspicuously split between page 5 and the top of page 6 of the Enrollment Agreements (2) the lack of notice to the material terms and waiver of rights within the arbitration provision (3) the clauses incorporate arbitration provisions from other enrollment materials not brought to the attention of the Plaintiffs. While it is InterCoast's burden to compel arbitration, the Plaintiffs have the burden to establish unconscionability. There are two different types of unconscionability: procedural and substantive. The former looks at the circumstances in which the contract was entered into and generally concerns unequal bargaining power between the parties. The latter looks at the terms of the contract and inequity to one party. Here, the Plaintiffs primarily make a substantive unconscionability challenge as they complain about the terms or the lack thereof and the location of the arbitration clause within the Enrollment Agreements. However, at oral argument, the Plaintiffs also argued that the clauses are procedurally unconscionable. Substantive Unconscionability In contrast, here, the Plaintiffs have the burden to show unconscionability. Under Maine law, parties to a contract are deemed to have read the contract and are bound by its terms. As to the placement of the arbitration clause, in some of the Enrollment Agreements, the arbitration clause is split between the fifth and sixth pages, the first half of the clause appears right above where each Plaintiff placed initials. The exception is the second Cathy Mande Enrollment Agreement, where the arbitration clause appears in full on the fifth page. The fact that the arbitration clauses lack language about waiving rights and about costs associated with arbitration, and does not define disputes to include legal disputes or claims does not render the clauses unconscionable. These omissions do not shock the conscience. The fact that the arbitration clause also incorporates the Arbitration provision found elsewhere in InterCoast Career Institute enrollment materials, does not show the clause is grossly oppressive. While the Plaintiffs say InterCoast has not demonstrated that it made them aware of this additional information, it is the Plaintiffs' burden to show unconscionability. The Court concludes the arbitration clause contained in the Enrollment Agreements is not substantively unconscionable. Procedural Unconscionability The Court also concludes the arbitration clause contained in the Enrollment Agreements is not procedurally unconscionable. Procedural unconscionability is analyzed based on the circumstances that existed at the time the contract was adopted. The Plaintiffs say the arbitrations clauses are procedurally unconscionable because for some of the Plaintiffs, English is their second language, InterCoast targeted them, and there was unequal bargaining power between the parties. They say the clauses are unconscionable in light of the totality of the circumstances. Given that it is the Plaintiffs' burden to show unconscionability, on the record before it, the Court concludes that the Plaintiffs have not sustained their burden. Looking at the time and circumstances when the Enrollment Agreements were entered into, the record lacks sufficient indicia to show that the Enrollment Agreements were the result of exploitation or undue influence. While the Plaintiffs say they were targeted, only one Plaintiff, Catherine Valley, learned of InterCoast through its advertising campaign soliciting students. The remaining Plaintiffs either learned of InterCoast on their own initiative or a friend referred them to InterCoast. Although as a corporation, InterCoast likely had more bargaining power, that is not enough by itself to constitute procedural unconscionable. To the degree the Plaintiffs are arguing that the arbitration clauses were adhesion agreements, this argument is belied by the fact that the Court has not been presented with some element of overreaching by a party who exploits a vastly unequal bargaining position. The Court concludes that the arbitration clauses are not procedurally unconscionable. Remaining Factors for a Motion to Compel Arbitration The Plaintiffs do not contend that their claims against InterCoast fall outside the scope of the arbitration clause or that InterCoast waived its right to arbitrate. The Court therefore concludes that InterCoast has met the two remaining factors in deciding whether to grant a motion to compel arbitration. The Court concludes that the Plaintiffs claims against InterCoast are arbitrable and grants InterCoast's motion to compel arbitration. The Court grants Defendants' Motion to Compel Arbitration and Dismiss the Case. A full-text copy of the District Court's February 28, 2019 Order is available at https://tinyurl.com/yxawhnvw from Leagle.com. STEPHANIE KOUREMBANAS, on behalf of herself and all others similarly situated, CARIDAD JEAN BAPTISTE, on behalf of herself and all others similarly situated, CATHY MANDE, on behalf of herself and all others similarly situated & CATHARINE VALLEY, on behalf of herself and all others similarly situated, Plaintiffs, represented by ANDREW P. COTTER , CLIFFORD & CLIFFORD, LLC, JAMES A. CLIFFORD , CLIFFORD & CLIFFORD, LLC & RICHARD L. O'MEARA, MURRAY PLUMB & MURRAY. INTERCOAST COLLEGES, doing business as INTERCOAST CAREER INSTITUTE, Defendant, represented by GEORGE T. DILWORTH , DRUMMOND WOODSUM, JEFFREY R. FINK, THOMPSON COBURN LLP, WILLIAM R. BAY, THOMPSON COBURN LLP, pro hac vice & JULIA G. PITNEY, DRUMMOND WOODSUM. INTERNATIONAL LASER: Alvarado Seeks Class Cert. Under FLSA, BIPA ---------------------------------------------------------------- The Plaintiff in the lawsuit styled JOSUE ALVARADO, on behalf of himself and all other persons similarly situated, known and unknown v. INTERNATIONAL LASER PRODUCTS, INC., INTERNATIONAL TONER CORP., and CRAIG FUNK, individually, Case No. 1:18-cv-07756 (N.D. Ill.), files with the Court his Motion to Authorize Notice Pursuant to Section 216(b) of the Fair Labor Standards Act and for Class Certification of his Illinois Minimum Wage Law and Illinois Biometric Information Privacy Act Claims Pursuant to Fed. R. Civ. P. 23(b)(3). Mr. Alvarado asks the Court to enter an order: A. authorizing the sending of notice to each putative class member and requiring the Defendants to provide the names and last known addresses of all class members; B. granting Motion for Class Certification and certifying Plaintiff's Illinois Minimum Wage Law ("IMWL") and Illinois Biometric Information Privacy Act ("BIPA") claims as a class action; C. appointing him as Class Representative; and D. appointing Douglas M. Werman, Esq., Maureen A. Salas, Esq., and Sarah J. Arendt, Esq., as Class Counsel.[CC] The Plaintiff is represented by: Douglas M. Werman, Esq. Maureen A. Salas, Esq. Sarah J. Arendt, Esq. WERMAN SALAS P.C. 77 W. Washington St., Suite 1402 Chicago, IL 60602 Telephone: (312) 419-1008 E-mail: dwerman@flsalaw.com msalas@flsalaw.com sarendt@flsalaw.com KIA MOTORS AMERICA: Faces De Anda Suit over Defective Automobile ---------------------------------------------------------------- A class action complaint has been filed against Kia Motors America, Inc. (KMA) for violations of statutory obligations in connection with a defective KIA Optima vehicle. The case is captioned MALLELA DE ANDA, Plaintiff, vs. KIA MOTORS AMERICA, INC; and DOES 1 through 10, inclusive, Defendant, Case No. 19STCV13360 (Cal. Super., Cty. of Los Angeles, April 17, 2019). Plaintiff Mallela De Anda alleges that KMA failed to comply with its obligations pursuant to Civil Code section 1793.2, subdivision (d); and Civil Code section 1793.1, subdivision (a)(2). KMA allegedly failed to make available to its authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period. Defendant committed fraud by allowing the Subject Vehicle to be sold to Plaintiff without disclosing that the Subject Vehicle and its 2.4L GDI engine was defective and susceptible to sudden and catastrophic failure. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiff's actual damages pursuant to Civil Code section 1794, subdivision (c). KMA is an automobile design, manufacturing, distribution, and/or service corporation doing business within the United States. It is headquartered in the state of California with its principal place of business at 111 Peters Canyon Road, Irvine, California. It distributes Kia vehicles and sells these vehicles through its network of more than 700 dealerships. [BN] The Plaintiff is represented by: Tionna Dolin, Esq. Sean Crandall, Esq. STRATEGIC LEGAL PRACTICES A PROFESSIONAL CORPORATION 1840 Century Park East, Suite 430 Los Angeles, CA 90067 Telephone: (310) 929-4900 Facsimile: (310) 943-3838 E-mail: tdolin@slpattorney.com scrandall@slpattorney.com LARIO OIL: Hancock Seeks to Conditionally Certify FLSA Class ------------------------------------------------------------ In the case, NATHAN HANCOCK, individually and on behalf of all others similarly situated, the Plaintiff, vs. LARIO OIL & GAS COMPANY, the Defendant, Case No. 2:19-cv-02140-JAR-KGG (D. Kan.), Hancock seeks conditional certification under the Fair Labor Standards Act -- and authorization to send notice to other putative plaintiffs, so they have opportunity to learn of and join the case before their statutes of limitations expire -- on behalf of: "all oilfield workers who were or are employed as a Wellsite/Drill Site Manager or "company man" by Lario Oil & Gas Company classified as independent contractors and paid a day rate at any time within the three years preceding the present date". Because Lario Oil denied Hancock and the Putative Class Members overtime under its uniform classification and compensation policy, these workers are similarly situated. The Court should therefore allow Hancock to send Court-authorized notice of this action to the Putative Class Members, informing them of their rights and providing them the opportunity to make a claim for unpaid wages. According to the complaint, Hancock regularly worked for the Defendant more than 12-hour days, for seven days a week, typically for two weeks at a time. To avoid paying Hancock and the other company men overtime, Lario misclassified them as independent contractors and paid them on a day rate basis, the lawsuit says. Hancock's claims are straightforward: Lario's classification and compensation plan for its company men violated the FLSA because it failed to pay these workers overtime.[CC] Attorneys for the Plaintiffs: Eric L. Dirks, Esq. WILLIAMS DIRKS DAMERON, LLC 1100 Main Street, Suite 2600 Kansas City, MI 64105 Telephone: (816) 945-7110 Facsimile: (816) 945-7118 E-mail: dirks@willamsdirks.com - and - Andrew W. Dunlap, Esq. William R. Liles, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 325-1100 Facsimile: (713) 325-3300 E-mail: adunlap@mybackwages.com wliles@mybackwages.com LEXUS OF NEW ORLEANS: Court Dismisses Kimble Suit With Prejudice ---------------------------------------------------------------- Judge Mary Ann Vial Lemmon of the U.S. District Court for the Eastern District of Louisiana dismissed with prejudice the case, RAYMOND H. KIMBLE, III v. LEXUS OF NEW ORLEANS ET AL, Civil Action No. 18-7918 (E.D. La.). Having considered the complaint, the record, the applicable law, the original and supplemental Reports and Recommendations of the United States Magistrate Judge, as well as the Plaintiff's objections to the Magistrate Judge's Reports and Recommendations, the Judge approved the Reports and Recommendations of the United States Magistrate Judge and adopted it as the Court's opinion in the matter. Therefore, having also considered the dismissal order of the court in the Middle District of Louisiana, he denied the Plaintiff's motions to appoint a special monitor and for class action status, and dismissed with prejudice the complaint as legally frivolous and/or for failure to state a claim under 28 U.S.C. Section 1915(e)(2) and 42 U.S.C. Section 1997e(c)(1). A full-text copy of the Court's April 3, 2019 Order is available at https://is.gd/nEGLHk from Leagle.com. Raymond H. Kimble, III, Plaintiff, pro se. M/A/R/C RESEARCH: Placeholder Bid for Class Certification Filed --------------------------------------------------------------- In the class action lawsuit, EXCLUSIVELY CATS VETERINARY HOSPITAL, P.C., a Michigan professional corporation, individually and as the representative of a class of similarly-situated persons, the Plaintiff, v. M/A/R/C RESEARCH, LLC, a Texas limited liability company, the Defendant, Case No. 3:19-cv-11228-RHC-SDD (E.D. Mich.), the Plaintiff files a "placeholder" motion for class certification in order to prevent against a "buy-off" attempt, a tactic class-action Defendants sometimes use to attempt to prevent a case from proceeding to a decision on class certification by attempting to "moot" the named plaintiff's claims by tendering the plaintiff individual (but not classwide) relief. The Plaintiff also asks the Court to certify a class, appoint Plaintiff as the class representative, and appoint its attorneys as class counsel. The Plaintiff proposes the following class definition: "all persons who (1) on or after four years prior to the filing of this action (2) were sent telephone facsimile messages the same or similar to the Fax, (3) from whom Defendant did not obtain “prior express invitation or permission” to send fax advertisements, and (4) where the fax advertisements did not include as opt-out notice compliant with 47 C.F.R. § 64.1200(a)(4)(iii)." In Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), the Supreme Court held "an unaccepted settlement offer or offer of judgment does not moot a plaintiff's case," and "a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted." The Sixth Circuit applied Campbell-Ewald in an unreported opinion in Family Health Chiropractic, Inc. v. MD On-Line Sols., Inc., No. 15-3508, 2016 WL 384823, (6th Cir. Feb. 2, 2016). In Wilson v. Gordon, F.3d 934, 949-50 (6th Cir. 2016), the Sixth Circuit held that, even where "[t]he parties [did] not dispute that all eleven named plaintiffs' individual claims became moot before the district court certified the class," the "picking-off" exception applied and allowed the named plaintiffs with moot individual claims to pursue class certification, which would "relate back" to the filing of the complaint, applying Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980). The Sixth Circuit held this ruling was consistent with Campbell-Ewald, 136 S. Ct. at 672, which refused to put defendants "in the driver's seat" on class certification.[CC] Attorneys for Exclusively Cats Veterinary Hospital, P.C., individually and as the representative of a class of similarly-situated persons: Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: rkelly@andersonwanca.com MANN PACKING: Anguiano Suit Removed to N.D. California ------------------------------------------------------ The case captioned MARIA ANGUIANO, as an individual and on behalf of all others similarly situated, Plaintiff, v. MANN PACKING CO., INC., a California corporation; and DOES 1 through 50, inclusive, Defendants, Case No. 19CV001178 was removed from the Superior Court of the State of California, in and for the County of Monterey to the United States District Court for the Nothern District of California on April 19, 2019, and assigned Case No. 5:19-cv-02133-VKD. Plaintiff's Complaint purports to assert six causes of action against Defendant, as follows: failure to pay overtime in violation of California Labor Code; failure to provide meal periods in violation of California Labor Code; failure to provide rest periods in violation of California Labor Code; failure to provide itemized wage statements in violation of California Labor Code; violation of California Business and Professions Code; and violation of California Labor Code.[BN] The Defendants are represented by: Jeffrey B. Maltzman, Esq. MALTZMAN & PARTNERS, P.A. 679 Encinitas Blvd., Suite 201 Encinitas, CA 92024-3761 Phone: (305) 992-6555 Facsimile: (305) 779-5664 Email: jeffreym@maltzmanpartners.com MARTINFEDERAL CONSULTING: Beavers Sues Over Unpaid Overtime Wages ----------------------------------------------------------------- Kimberly Beavers, Individually and on Behalf of All Those Similarly Situated, Plaintiff v. MartinFederal Consulting, LLC, Defendants, Case No. 4:19-cv-00302-SWW (E.D. Ark., April 26, 2019) is a collective action brought by Plaintiff, individually and on behalf of all others similarly situated, against Defendant for violations of the overtime provisions of the Fair Labor Standards Act ("FLSA"), and the Arkansas Minimum Wage Act ("AMWA"). Plaintiff and other hourly-paid employees worked in excess of 40 hours per week in at least one workweek during the time period relevant to this Complaint. However, the Defendant did not pay Plaintiff and other hourly-paid employees overtime wages at a rate of one and 1.5 times their regular rate for their hours worked over 40 per week, says the complaint. Plaintiff was employed by Defendant as an hourly-paid employee. Defendant is a company that provides government contracting services both nationally and internationally, primarily in the areas of IT systems, laboratory and technical support, and training and development, as well as other areas.[BN] The Plaintiff is represented by: Stacy Gibson, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford Road, Suite 411 Little Rock, AR 72211 Phone: (501) 221-0088 Facsimile: (888) 787-2040 Email: josh@sanfordlawfirm.com stacy@sanfordlawfirm.com MATRIX MEDICAL: Gasperak Suit Removed to M.D. Florida ----------------------------------------------------- The case captioned as DOUGLAS GASPERAK, on behalf of himself and others similarly situated, Plaintiff, v. MATRIX MEDICAL NETWORK OF FLORIDA, LLC, a Florida Limited Liability Company, and DPN USA, LLC., a Florida Limited Liability Company, d/b/a Healthfair, Defendants, was removed from the Circuit Court of the Fifth Judicial District in and for Citrus County, Florida to the United States District Court for the Middle District of Florida on April 24, 2019, and assigned Case No. 5:19-cv-00206. Plaintiff seeks to recover overtime pay under the FLSA for himself and other similarly situated employees of Defendants.[BN] The Defendants are represented by: John A. Schifino, Esq. Eduardo A. Suarez-Solar, Esq. Jounice L. Nealy-Brown, Esq. Gunster, Yoakley & Stewart, P.A. 401 E. Jackson Street, Suite 2500 Tampa, FL 33602 Phone: (813) 739-6962 Fax: (813) 228-6739 Primary E-mail: jschifino@gunster.com esuarez@gunster.com jnealy-brown@gunster.com Secondary E-mail: adavis@gunster.com tkennedy@gunster.com eservice@gunster.com MDL 2804: ND Counties Suit Consolidated in Opiate Litigation ------------------------------------------------------------ The lawsuit entitled CASS COUNTY, NORTH DAKOTA and CITY OF GRAND FORKS, NORTH DAKOTA, Individually and on Behalf of All Others Similarly Situated v. PURDUE PHARMA L.P., et al., Case No. 3:19-cv-00055, was transferred on April 17, 2019, from the U.S. District Court for the District of North Dakota to the U.S. District Court for the Northern District of Ohio (Cleveland). The Ohio District Court Clerk assigned Case No. 1:19-op-45276-DAP to the proceeding. The lawsuit is consolidated in the multidistrict litigation styled In re National Prescription Opiate Litigation, MDL No. 1:17-md-02804-DAP (Hon. Dan A. Polster). North Dakota, like many states across the country, is facing an unprecedented opioid addiction epidemic, the Plaintiffs allege. They contend that the drug manufacturers' deceptive marketing and sale of opioids to treat chronic pain is one of the main drivers of the opioid epidemic. Historically, prescription opioids had been used for short-term, post-surgical and trauma-related pain, and for palliative end-of-life care primarily in cancer patients. Because opioids are highly addictive and dangerous, the U.S. Food and Drug Administration ("FDA") has generally regulated them as Schedule II Controlled Substances, i.e., drugs that have a high potential for abuse and that may lead to severe psychological or physical dependence.[BN] Plaintiffs Cass County, North Dakota, Individually and on Behalf of All Others Similarly Situated; and City of Grand Forks, North Dakota, Individually and on Behalf of All Others Similarly Situated, are represented by: Joseph A. Wetch, Jr., Esq. SERKLAND, LUNDBERG, ERICKSON, MARCIL & MCLEAN, LTD. P.O. Box 6017 Fargo, ND 58108-6017 Telephone: (701) 232-8957 E-mail: jwetch@serklandlaw.com MDL 2886: Harmel Suit Consolidated in Allura Fiber Litigation ------------------------------------------------------------- The lawsuit titled ANDREW HARMEL, individually and on behalf of all similarly situated individuals v. PLYCEM USA, LLC, PLYCEM USA, INC., ELEMENTIA USA, INC., ELEMENTIA, S.A.B. DE C.V., Case No. 1:19-cv-01476 was transferred on April 17, 2019, from the U.S. District Court for the Northern District of Georgia to the U.S. District Court for the District of South Carolina (Charleston). The South Carolina District Court Clerk assigned Case No. 2:19-cv-01126-DCN to the proceeding. The lawsuit is consolidated in the lawsuit litigation titled IN RE: ALLURA FIBER CEMENT SIDING PRODUCTS LIABILITY LITIGATION, MDL No. 2:19-mn-02886-DCN. The lawsuit is a consumer class action brought on behalf of all persons and entities, who own homes, residences or other structures physically located in Georgia, on which the Defendants' Allura fiber cement exterior siding is or was installed. The Plaintiff alleges that the Siding of his and Class Members' homes suffers from an inherent defect resulting in the Siding cracking, splitting, warping, and breakage.[BN] The Plaintiff is represented by: Harper T. Segui, Esq. Daniel K. Bryson, Esq. Scott C. Harris, Esq. Whitfield Bryson & Mason LLP 900 W Morgan St. Raleigh, NC 27603 Telephone: (919) 600-5000 Facsimile: (919) 600-5035 E-mail: harper@wbmllp.com dan@wbmllp.com scott@wbmllp.com MERCURY GENERAL: MAO-MSO et al. Seek to Certify Class ----------------------------------------------------- MAO-MSO RECOVERY II, LLC a CLAIMS, SERIES LLC, a Delaware entity; MSPA CLAIMS 1, LLC, a Florida entity, the Plaintiffs, vs. MERCURY GENERAL, a California company, its subsidiaries and affiliates, the Defendants, Case No. 2:17-cv-02525-AB (C.D. Cal.), Case No. 2:17-cv-02557-AB, the Plaintiff will move the Court on June 28, 2019, for an order: 1. certifying these classes: No-Fault Class: "all non-governmental organizations that provided benefits under Medicare Part C, in the United States of America and its territories, which made payments or where financially responsible for medical items and services on behalf of their beneficiaries at any time between March 31, 2011 and the present, for which the defendant had provided no-fault insurance coverage, but failed to make primary payment or failed to reimburse"; The Class also includes all assignees that have been assigned rights of recovery from those Medicare Part C providers. The class definition excludes (a) Defendant, its officers, directors, management, employees, subsidiaries, and affiliates; and (b) any judges or justices involved in this action and any members of their immediate families. Settlement Class: "all non-governmental organizations that provided benefits under Medicare Part C, in the United States of America and its territories, who made payments for medical items and services on behalf of their beneficiaries between March 31, 2011 and the present, for which Defendant has not reimbursed in full or part after Defendant entered into settlements with Medicare beneficiaries enrolled in a Medicare Advantage Plan"; The class definition excludes (a) Defendant, its officers, directors, management, employees, subsidiaries, and affiliates; and (b) any judges or justices involved in this action and any members of their immediate families. 2. appointing Plaintiffs as the class representatives; and 3. appointing Plaintiffs' Counsel as class counsel.[CC] Attorneys for the Plaintiffs: Michael L. Baum, Esq. R. Brent Wisner, Esq. Adam M. Foster, Esq. BAUM HEDLUND ARISTEI & GOLDMAN, P.C. 10940 Wilshire Blvd., 17th Floor Los Angeles, CA 90024 Telephone: (310) 207-3233 Facsimile: (310) 820-7444 E-mail: mbaum@baumhedlundlaw.com rbwisner@baumhedlundlaw.com afoster@baumhedlundlaw.com MICROCHIP TECH: Schuman et al Seek to Certify Atmel Employees Class ------------------------------------------------------------------- In the class action lawsuit PETER SCHUMAN, an individual, and WILLIAM COPLIN, an individual, on behalf of themselves and on behalf of others similarly situated, the Plaintiffs, vs. MICROCHIP TECHNOLOGY INCORPORATED, a corporation; ATMEL CORPORATION, a corporation; and CORPORATION U.S. SEVERANCE GUARANTEE BENEFIT PROGRAM, an employee benefit plan, the Defendants, Case No. 4:16-CV-05544-HSG (N.D. Cal., Filed Sept. 29, 2016), the Plaintiffs will move the Court for an order on June 27, 2019: 1. certifying a class of: "al former U.S.-based employees of defendant Atmel Corporation who were employed as of the April 4, 2016 closing date of the Atmel-Microchip merger and who were terminated by defendant Microchip Technology Incorporated without cause between April 4, 2016 and March 19, 2017"; The class excludes the plaintiffs in the companion case (also pending before this Court) of Berman v. Microchip et al., Case No. 4:17-cv-01864-HSG (N.D. Cal.). 2. appointing themselves as Class Representatives; and 3. apointing McGuinn, Hillsman & Palefsky, Altshuler Berzon LLP, and the Law Office of William Reilly as Class Counsel. The Plaintiffs seek certification of two claims for relief: equitable relief and improper denial of benefits under the Employee Retirement Income Security Act of 1974. The Plaintiffs seek to represent approximately 200 former employees of defendant Atmel Corporation, which in July 2015 created the "Atmel Corporation U.S. Severance Guarantee Benefit Program" (the "Atmel Plan," or "Plan"), an ERISA plan that guaranteed all United States-based Atmel employees generous severance benefits if they: (1) kept working for Atmel while it searched for an appropriate merger partner; and (2) were later terminated without cause by the new company between April 4, 2016 (the merger close date) and March 19, 2017. As this Court recently concluded in Berman v. Microchip et al., Case No. 4:17-cv-01864-HSG (N.D. 10 Cal), all eligibility conditions for receiving these ERISA severance plan benefits were fully satisfied. The Plaintiffs continued to work for Atmel from July 12, 2015, when the Plan was created, through early April 2016, when Atmel completed its merger with defendant Microchip Technology Inc. ("Microchip"). Yet once Microchip completed the merger and began laying off scores of former Atmel employees without cause, Microchip reneged on its contractual and statutory obligations and refused to pay plaintiffs or class members the severance benefits they had been promised and were clearly entitled to be paid. Instead, as the Court found in Berman, in a flagrant breach of Microchip's fiduciary duty and obligations under ERISA and the Atmel Plan, it falsely stated that the Atmel Plan had "expired" months earlier and that terminated employees were not entitled to any Plan benefits. Microchip then demanded, based on these false and misleading assertions, that the plaintiffs and class members must sign written releases of all severance-related and other claims they had against Microchip in order to receive payments upon termination that were far lower than those employees were actually entitled to under the Plan.[CC] Attorneys for the Plaintiff: Michael Rubin, Esq. Andrew Kushner, Esq. ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 E-mail: mrubin@altber.com akushner@altber.com - and - Cliff Palefsky, Esq. Keith Ehrman, Esq. MCGUINN, HILLSMAN & PALEFSKY 535 Pacific Avenue San Francisco, CA 94133 Telephone: (415) 421-9292 Facsimile: (415) 403-0202 E-mail: cp@mhpsf.com keith@mhpsf.com - and - William Reilly, Esq. LAW OFFICE OF WILLIAM REILLY 86 Molino Avenue Mill Valley, CA 94941 Telephone: (415) 225-6215 Facsimile: (415) 634-2897 E-mail: bill@williambreilly.com MIDLAND CREDIT: Placeholder Bid for Class Certification Filed ------------------------------------------------------------- In the class action lawsuit captioned JULIE VOEKS, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. MIDLAND CREDIT MANAGEMENT INC. and MIDLAND FUNDING LLC, the Defendants, Case No. 2:19-cv-00584-JPS (E.D. Wisc.), the Plaintiffs ask the Court for an order certifying a class, appointing the Plaintiff as class representative, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff furthers ask that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class. Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545-46 (7th Cir. 2017).[CC] Attorneys for the Plaintiff: Mark A. Eldridge, Esq. John D. Blythin, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com MONSANTO CO: Graves Sues Over Roundup(R)-Related Injuries --------------------------------------------------------- RICHARD GRAVES, LOIS E. GRAVES v. MONSANTO COMPANY, Case No. 1:19-cv-00107 (E.D. Tenn., April 17, 2019), seeks to recover damages for the injuries sustained by the Plaintiffs as the direct and proximate result of the wrongful conduct and negligence of the Defendant in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distributing, labeling, and selling 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] The Plaintiffs are represented by: Daniel V. Parish, Esq. WOLFF ARDIS, P.C. 5810 Shelby Oaks Drive Memphis, TN 38134 Telephone: (901) 763-3336 Facsimile: (901) 763-3376 E-mail: dparish@wolffardis.com - and - 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 MULTIFAMILY INTERNET: Ehrman Suit Removed to C.D. California ------------------------------------------------------------ The case captioned as DAVID EHRMAN, individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. MULTIFAMILY INTERNET VENTURES, LLC, and DOES 1 through 25, Defendants, Case No. 30-2019-01058863-CU-OE-CXC was removed from the Superior Court of the State of California for the County of Orange to the United States District Court for the Central District of California on April 26, 2019, and assigned Case No. 8:19-cv-00770. In this lawsuit, Plaintiff seeks, among other relief, past and future lost wages and job benefits, overtime, penalties, statutory damages, emotional distress damages, punitive damages, and attorneys' fees.[BN] The Defendants are represented by: Christopher W. Decker, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 400 South Hope Street, Suite 1200 Los Angeles, CA 90071 Phone: 213-239-9800 Facsimile: 213-239-9045 Email: christopher.decker@ogletree.com - and - Caroline C. Dickey, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Park Tower, Fifteenth Floor 695 Town Center Drive Costa Mesa, CA 92626 Phone: 714-800-7900 Facsimile: 714-754-1298 Email: caroline.dickey@ogletree.com NATIONWIDE CREDIT: Placeholder Bid for Class Certification Filed ---------------------------------------------------------------- In the class action lawsuit captioned BARBARA MOLLBERG, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. NATIONWIDE CREDIT, INC., the Defendant, Case No. 2:19-cv-00618-LA (E.D. Wisc.), the Plaintiff asks the Court for an order certifying a class, appointing the Plaintiff as class representative, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class. Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545-46 (7th Cir. 2017).[CC] Attorneys for the Plaintiff: Mark A. Eldridge, Esq. John D. Blythin, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com NATURAL HEALTH: Class Action Law Firm Gets Dozens of Inquiries -------------------------------------------------------------- Yolande Cole, writing for Calgary Herald, reports that since filing a proposed class action lawsuit against Natural Health Services Ltd. and parent company Sunniva Inc., law firm Diamond and Diamond has received "dozens" of inquiries. Darryl Singer, lead counsel on the lawsuit, said his office started to get calls from people concerned about a data breach of Natural Health Services patient information immediately after the lawsuit was announced. "Everybody's concerns are fairly similar, and at the end of the day, everybody that's called us is quite happy to be part of the class action," Singer said. Natural Health Services, which operates seven clinics in Canada for patients seeking medical cannabis, identified there was a data breach in their electronic medical record system between Dec. 4, 2018 and Jan. 7, 2019. During that time period, records containing personal health information of about 34,000 patients were accessed without authorization, Sunniva said. The breach did not involve any financial, credit card or social insurance number information. "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," Sunniva said in a news release. Dr. Mark Kimmins, president of NHS, said the company is taking the situation "very seriously" and 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," he said. Singer said the lawsuit is structured as a national class action, so the Toronto law firm is taking clients from across the country. "A health services provider, which is what this company is, has an obligation to safeguard the most sensitive, personal health information of its patients, and that's set out in legislation," Singer said. Information disclosed as part of the breach includes diagnostic results, health-care numbers, addresses, phone numbers and medical information such as referrals and completed questionnaires, according to Diamond and Diamond Lawyers. Natural Health Services and Sunniva have not yet filed a statement of defence. [GN] NAVIHEALTH INC: Bid to Certify Collective Action Denied ------------------------------------------------------- In the class action lawsuit MAE BARBEE and DONNA TRONE, on behalf of themselves and all others similarly situated, the Plaintiffs, vs. NAVIHEALTH, INC., the Defendant, Case No. 3:19-cv-00119 (M.D. Tenn.), the Hon. Judge Waverly D. Crenshaw, JR. entered an order: 1. granting naviHealth's motion to withdraw its previously filed motion to dismiss; 2. denying without prejudice Plaintiffs' motion to certify collective action and for expedited notice to refiling to comport with the allegations in the recently filed amended complaint; and 3. denying as moot joint motion for extension of time to respond.[CC] NELSON TREE: Non-Exempt Workers Class Certified in Neville Suit --------------------------------------------------------------- The Hon. Walter H. Rice entered a decision sustaining in part and overruling in part the motion to conditionally certify an FLSA collective action and to authorize notice in the lawsuit titled JOSEPH NEVILLE, On behalf of himself and all others similarly situated v. NELSON TREE SERVICE, LLC, Case No. 3:18-cv-00368-WHR (S.D. Ohio). The lawsuit alleges certain violations of the Fair Labor Standards Act due to the Defendant's alleged failure to pay its employees for time spent traveling to jobsites in which an overnight stay was required when such travel resulted in overtime. Judge Rice ruled that this collective is conditionally certified: all current or former hourly non-exempt employees of Defendant who (1) were required, due to the distance from their home community to a jobsite, to stay overnight; (2) have not been paid for time spent traveling to jobsites; (3) are not subject to a collective bargaining agreement that addresses payment of travel time; and (4) as a result of the travel time to the remote job, worked over 40 hours in any workweek beginning November 8, 2015, and continuing through the date of the final disposition of this case. The Defendant shall provide to the Plaintiff's counsel, within 14 days of the date of this Decision and Entry, a list, in electronic and importable format, of the names, job titles, last known addresses, telephone numbers, e-mail addresses, and dates of employment, of the all putative collective members. Counsel for the Plaintiff and counsel for the Defendant shall submit to the Court, within 21 days of this Decision and Entry, a detailed proposed Notice of Collective Action for judicial approval, with a consent form, and specifying all methods for communication of the Notice and consent form to the putative class.[CC] NESTLE WATERS: Says Poland Spring Class Action Meritless -------------------------------------------------------- The Associated Press reports that a judge has given new life to a class-action lawsuit accusing Poland Spring of selling water that's sourced from wells, not springs. The same federal judge in Connecticut last year dismissed the lawsuit, but he ruled that an amended complaint can proceed with claims in eight states: Maine, Connecticut, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania and Rhode Island. Poland Spring's corporate parent, Connecticut-based Nestle Waters North America, reiterated on April 2 that it's a "meritless lawsuit" and said the judge's decision doesn't undermine its confidence. Nestle Waters says Poland Spring meets Food and Drug Administration's guidelines that allow "spring water" labels if the water is drawn from the same source as a natural spring and meets certain requirements for chemical composition. [GN] NIO INC: Wolf Haldenstein Files Securities Class Action Suit ------------------------------------------------------------ Wolf Haldenstein Adler Freeman & Herz LLP announces that a federal securities class action lawsuit has been filed against NIO Inc. (NYSE: NIO) in the United States District Court for the Eastern District of New York on behalf of those who purchased or acquired the American Depositary Receipts (ADRs) of NIO between September 12, 2018 and March 5, 2019, inclusive (the "Class Period"). Investors who purchased ADRs of NIO Inc. are urged to contact the firm immediately at classmember@whafh.com or (800) 575-0735 or (212) 545-4774. You may obtain additional information concerning the action on our website www.whafh.com If you have incurred losses in the ADRs of NIO Inc., you may, no later than May 13, 2019, request that the Court appoint you lead plaintiff of the proposed class. Please contact Wolf Haldenstein to learn more about your rights as an investor in NIO Inc. The filed Complaint alleges Defendants made false and/or misleading statements and/or failed to disclose that: NIO would not be building its own manufacturing plant and would instead continue to rely on a little-known Chinese state-owned auto manufacturer, JAC Auto, to manufacture its electric vehicles; reductions in government subsidies for electric cars would materially impact NIO's sales; and as a result, Defendants' statements about NIO's business, operations, and prospects were materially false and misleading at all relevant times. On March 6, 2019, NIO's ADRs declined from a closing price on March 5, 2019 of$10.19 per ADR to close at $8.01 per ADR, a decline of $2.01 per ADR or over 21%. On March 7, 2019, NIO's ADRs declined an additional $0.92 per ADR or over 11% to close at $7.09 per ADR. If you wish to discuss this action or have any questions regarding your rights and interests in this case, please Contact: Kevin Cooper, Esq. Gregory Stone Director of Case and Financial Analysis Wolf Haldenstein Adler Freeman & Herz LLP Telephone: (800) 575-0735 (212) 545-4774 Website: www.whafh.com. Email: gstone@whafh.com kcooper@whafh.com classmember@whafh.com [GN] PACESETTERS, INC: Scantland Seeks to Conditionally Certify Class ---------------------------------------------------------------- In the class action lawsuit, SHELLY MARIE SCANTLAND, Individually, on behalf of herself and on behalf of all other similarly situated current and former employees, the Plaintiff, vs. PACESETTERS, INCORPORATED, A Tennessee Nonprofit Corporation, the Defendant, Case No. 2:18-cv-00095 (M.D. Tenn.), the Plaintiff moves the Court for an order: 1. conditionally certifying a class of: "all current and former hourly-paid employees who were classified by Defendant as Direct Support Professionals at its facilities throughout Middle Tennessee at any time during the applicable limitations period covered by the collective action complaint" 2. authorizing Court-supervised notice to those individuals, in accordance with Section 16(b) of the Fair Labor Standards Act, 29 U.S.C. section 216(b); 3. directing Defendant to immediately provide Plaintiff's counsel a computer-readable file containing the names (last names first), last known physical addresses, last known email addresses, social security numbers, dates of employment, and last known telephone numbers of all putative class members during the last three years; 4. tolling putative class' statute of limitations as of the date the motion is fully briefed (except for those who have already opted into this action); and 5. deeming Opt-in Plaintiffs' Consent Forms to be "filed" on the dates they are postmarked (excluding those who opted in prior to Court-supervised Notice being sent). The Plaintiff commenced a collective action for Defendant's wage and overtime compensation violations at any time during the applicable limitations period covered by the Complaint (i.e. two years for FLSA violations and three years for willful FLSA violations).[CC] Attorneys for the Plaintiff: Gordon E. Jackson, Esq. J. Russ Bryant, Esq. Paula R. Jackson, Esq. Robert E. Turner, Esq. Nathan A. Bishop, Esq. JACKSON, SHIELDS, YEISER & HOLT 262 German Oak Drive Memphis, TN 38018 Telephone: (901) 754-8001 Facsimile: (901) 754-8524 E-mail: gjackson@jsyc.com rbryant@jsyc.com pjackson@jsyc.com rturner@jsyc.com nbishop@jsyc.com Attorneys for the Defendant: Mary Dee Allen, Esq. Edward H. Trent, Esq. WIMBERLY LAWSON WRIGHT DAVES & JONES, PLLC 1420 Neal Street, Suite 201 P.O. Box 655 Cookeville, TN 38503-0655 Telephone: (931) 372-9123 E-mail: mallen@wimberlylawson.com etrent@wimberlylawson.com PAYCRON INC: Jackson Seeks to Certify Class ------------------------------------------- In the class action lawsuit JEREMY JACKSON, individually and on behalf of all others similarly situated, the Plaintiff, vs. PAYCRON INC., a Florida company, the Defendant, Case No. 8:19-cv-00609-WFJ-AAS (M.D. Fla., March 11, 2019), the Plaintiff asks the Court for an order: 1. certifying two Classes: Autodialed Class: "all persons in the United States who from four years prior to the filing of this action: (1) Defendant (or an agent acting on behalf of Defendant) called, (2) using the same dialing equipment used to call Plaintiff, (3) for substantially the same reason Defendant called Plaintiff, and (4) for whom Defendant claims (a) it obtained prior express written consent in the same manner as Defendant claims it obtained prior express written consent to call Plaintiff, or (b) Defendant does not claim to have obtained prior express written consent"; and Do Not Call Registry Class: "all persons in the United States who from four years prior to the filing of this action: (1) Defendant (or an agent acting on behalf of Defendant) called more than one time, (2) within any 12-month period, (3) where the person's phone number had been listed on the national Do Not Call registry for at least thirty days, (4) for substantially the same reason Defendant called Plaintiff, and (5) for whom Defendant claims (a) it obtained prior express written consent in the same manner as Defendant claims it obtained prior express written consent to call the Plaintiff, or (b) Defendant does not claim to have obtained prior express written consent." 2. granting Plaintiff leave to take discovery to identify members of the Classes and determining amount of damages they are entitled to prior to entry of final judgment. The Plaintiff asserts two claims under the Telephone Consumer Protection Act. The first is for violation of the TCPA's prohibition against making autodialed solicitations to cellular telephone numbers. The second claim is for violation of the TCPA's prohibition against making 2 or more solicitation calls in a 12-month period to telephone numbers registered on the national Do Not Call registry for more than 30 days.[CC] Attorneys for the Plaintiff and the Putative Class: Avi R. Kaufman, Esq. KAUFMAN P.A. 400 NW 26th Street Miami, FL 33127 Telephone: (305) 469-5881 E-mail: kaufman@kaufmanpa.com PHILIP B WILLETTE: Malik Sues Over Unlawful Debt Collection ----------------------------------------------------------- AREEB MALIK, individually and on behalf of all others similarly situated v. PHILIP B. WILLETTE CO., LPA, Case No. 0:19-cv-60987-WPD (S.D. Fla., April 17, 2019), alleges violations of the Fair Debt Collection Practices Act. According to the complaint, the Defendant has dispatched thousands of consumer debt collection letters to Florida consumers without first obtaining a license to collect consumer debts in the state of Florida as mandated by the Florida Consumer Collection Practices Act. PBW is an Ohio corporation, with its principal place of business located in Pickerington, Ohio. PBW engages in interstate commerce by regularly using telephone and mail in a business whose principal purpose is the collection of debts.[BN] The Plaintiff is represented by: Jibrael S. Hindi, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th Street, Suite 1744 Fort Lauderdale, FL 33301 Telephone: (954) 907-1136 Facsimile: (855) 529-9540 E-mail: jibrael@jibraellaw.com R.BERG ENTERPRISES: Underpays Cashiers, Coronado Suit Alleges ------------------------------------------------------------- JENNIFER CORONADO, individually and on behalf of all others similarly situated, Plaintiff v. R. BERG ENTERPRISES, INC.; and DOES 1 through 25, Defendants, Case No. 19STCV10841 (Cal. Super., Los Angeles Cty., March 29, 2019) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, provide accurate wage statements, and reimburse necessary business expenses. Jennifer Coronado was employed by Defendants as a cashier. R. Berg Enterprises, Inc. operate a 7-Eleven retail location in Los Angeles, California. [BN] The Plaintiff is represented by: Michael H. Boyamian, Esq. Armand R. Kizirian, Esq. BOYAMIAN LAW, INC. 550 North Brand Boulevard, Suite 1500 Glendale, CA 91203 Telephone: (818) 547-5300 | Facsimile: (818) 547-5678 E-mail: michael@boyamianlaw.com armand@boyamianlaw.com - and - Hirad D. Dadgostar, Esq. DADGOSTAR LAW LLP 12400 Wilshire Boulevard, Suite 400 Los Angeles, CA 90025-1030 Telephone: (310) 820-1022 Facsimile: (310) 820-1088 E-mail: hirad@dadgostarlaw.com RE/MAX HOLDINGS: Antitrust Suit Filed Over Commissions ------------------------------------------------------ Kenneth R. Harney, writing for The Real Deal, reports that in what could be the most far-reaching antitrust lawsuit for the real estate market in decades, the National Association of Realtors and four of the largest realty companies have been accused of a conspiracy to systematically overcharge home sellers by forcing them to pay commissions to the agents who represent the buyers of their homes. The class-action suit, filed in federal district court in Chicago, focuses on a rule it says has been imposed by the NAR. The rule requires brokers who list sellers' properties on local multiple listing services (MLSs) to include a "non-negotiable offer" of compensation to buyer agents. That is, once a home seller agrees in a listing to a specific split of the commission, buyers cannot later negotiate their agents' split to a lower rate. That requirement, the suit alleges, "saddle(s) home sellers with a cost that would be borne by the buyer in a competitive market," where buyers pay directly for the services rendered by their agents. In overseas markets where there is no such mandatory compensation rule for buyer agents, total commission costs tend to be lower -- averaging 1 percent to 3 percent in the United Kingdom, for example -- versus the 5 percent to 6 percent commonplace here. The suit alleges that if buyers in the U.S. could negotiate fees directly with the agents they choose to represent them, fees would be more competitive and lower. Today many American buyers are unaware of their agent's commission split. Sellers typically know the percentage because they agree to it in the listing contract. But they may wonder: Why am I required to pay the fee of the buyer's agent, who may be negotiating against my interests in the transaction? Also, at a time when buyers often search for and find the house they want to buy online, shouldn't compensation for a buyer's agents be decreasing, rather than stuck in the 2.5 percent to 3.0 percent range? Besides NAR, the suit names RE/MAX Holdings Inc., Keller Williams Realty Inc., HomeServices of America Inc. and Realogy Holdings Corp. as co-defendants. NAR, with 1.3 million members, is the largest trade group in the industry. The four realty companies named as defendants are behemoths: franchisor Keller Williams has approximately 180,000 agents in the U.S. and Canada; RE/MAX has 120,000 agents; Realogy includes among its brands Better Homes and Gardens, Century 21, Coldwell Banker Real Estate and ERA; HomeServices of America is a Berkshire Hathaway affiliate and includes among its companies regional powers such as Long and Foster Real Estate and Edina Realty. The plaintiff in the case is Christopher Moehrl, who sold a home in 2017 using a RE/MAX broker to list the property; the buyer was represented by Keller Williams. Moehrl paid a total commission of 6 percent. Just under half of that, 2.7 percent, went to the buyer's agent. If Moehrl's case is certified as a class action, the potential number of sellers affected would be massive. It includes sellers who have paid a broker commission during the past four years in connection with a home listed by an MLS in these metropolitan areas: Washington D.C.; Baltimore; Cleveland; Dallas; Denver; Detroit; Houston; Las Vegas; Miami; Philadelphia; Phoenix; Salt Lake City; Richmond, Virginia; Tampa, Orlando, Sarasota and Ft. Myers, Florida; Charlotte and Raleigh, North Carolina; Austin and San Antonio, Texas; Columbus, Ohio; and Colorado Springs, Colorado. NAR Vice President Mantill Williams called the suit "baseless" and said it "contains an abundance of false claims," but he provided no specifics. Representatives of the four realty companies declined comment. But some Realtors say the suit could dismantle the compensation system as it now exists. Anthony Lamacchia, broker-owner of Lamacchia Realty in Waltham, Massachusetts, says if the suit is successful "it would basically destroy buyer agency, which would not be in the best interests of buyers or sellers." Lamacchia argues that even in an era where buyers frequently find homes online, buyer agents have important functions in managing contract negotiations, providing strategic advice and guiding clients through the process to closing. Some brokers challenged allegations in the suit, such as buyer agents refusing to show homes with low commission splits. Alexis Eldorrado, managing broker of Eldorrado Chicago Real Estate, told me that "in reality, if the buyers have found the place they want and are interested in seeing it, NAR's code of ethics requires the agent to show it."[GN] RESOURCE MARKETING: Baudin et al. Seek to Certify FLSA Class ------------------------------------------------------------ In the class action lawsuit JERRY BAUDIN, JOSEPHINE DUFFNEY and KARISHMA PERSAUD, individually and on behalf of all other similarly situated individuals, the Plaintiffs, v. RESOURCE MARKETING CORP., LLC, the Defendant, Case No. 1:19-cv-00386-MAD-CFH (N.D.N.Y.), the Plaintiffs move the Court pursuant to Section 16(b) of the Fair Labor Standards Act, for an order: 1. conditionally certifying proposed collective FLSA class; 2. implementing a procedure whereby Court-approved Notice of Plaintiffs' FLSA claims is sent (via U.S. Mail, e-mail and text message) to: "all current and former brick-and-mortar and/or at-home Account Representatives or Transfer Agents who worked for Defendant at any time on or after April 1, 2016 through judgment"; and 3. requiring Defendant to identify all putative collective action members by providing a list of their names, last known addresses, dates and location of employment, phone numbers, and email addresses in electronic and importable format within 10 days of the entry of the order. Resource Marketing Corp., LLC is a nationwide marketing call center that "specializes in providing extremely targeted, high quality leads to businesses by way of live call transfers." The Defendant "offers live consumer transfers for mortgage lending, solar energy, home security, credit repair and tax relief". In order to carry out its business model, Defendant employs non-exempt hourly call center employees, hereinafter referred to as account representatives or transfer agents, to verify and prescreen inbound customer leads over the telephone and then delivery them via hot call transfer to a sales person. Like countless other call center employers, the Defendant maintains a common policy and practice of failing to pay its Agents for all hours worked; instead, the Defendant only pays the Agents after they have completed the timely process of loading several essential software programs and applications -- essential to fulfilling their job duties -- on their computers.[CC] Attorneys for Plaintiffs and the putative Class/Collective action members: Kevin J. Stoops, Esq. Rod M. Johnston, Esq. SOMMERS SCHWARTZ, P.C. One Towne Square, 17th Floor Southfield, MH 48076 Telephone: (248) 355-0300 E-mail: kstoops@sommerspc.com rjohnston@sommerspc.com - and - Jason T. Brown, Esq. Nicholas Conlon, Esq. JTB LAW GROUP, LLC 155 2nd Street, Suite 600 Jersey City, NJ 07302 Telephone: (877) 561-0000 E-mail: jtb@jtblawgroup.com nicholasconlon@jtblawgroup.com RESOURCE MARKETING: Former Employees File FLSA Class Action ----------------------------------------------------------- Diego Mendoza-Moyers, writing for Times Union, reports that a Clifton Park marketing call center shorted workers' pay by refusing to cover overtime or pre- and post-shift activities, like logging on and off work computers, and at times required employees to work during lunch breaks, a class action lawsuit filed in the U.S. District Court in Albany claims. The lawsuit filed on April 1 was brought under the Fair Labor Standards Act by three former Resource Marketing Corporation employees on behalf of themselves and other affected workers, according to court filings. The filings showed attorneys in the case are seeking at least $5 million for over 100 plaintiffs. Court records show some employees were deducted up to four to six hours of pay over some pay periods. One plaintiff, Karishma Persaud, worked at the call center from November 2017 to this March. One timesheet included in the filings indicated Persaud worked 82 hours from Jan. 26 to Feb. 8, but her payroll report for that pay period showed she was paid for just 77.34 hours of work. "Because (Resource Marketing Corporation) trains and instructs its Agents not to record time spent performing pre-shift, mid-shift and post-shift work tasks, (RMC's) compensation system fails to properly account for and compensate Agents for all time worked, including their overtime hours, during each day and during each workweek," the suit says. Resource Marketing workers also were required to work through lunch if, at that time, there were not enough workers to manage the phones. But the suit claims workers were not paid for working through their lunch break, and employees who reported working that time on their timesheet were not compensated for it. The lawsuit alleges that the "hours reflected on the Agents' timesheets are not accurate, are contrived by (RMC), and are not related to the hours the Agents actually worked for (RMC)." Employees at the call center use an automatic dialing software to call customer leads, and employees use a series of scripted questions to determine whether to qualify the customer as a "hot lead." If qualified, that customer would then be transferred to a sales person, according to the court filing. Workers are assigned to different call campaigns involving things like mortgage lending, solar energy, debt resolution and others. Weekly hours are typically 9 a.m. to 7 p.m. Mondays through Thursdays, and 9 a.m. to 2 p.m. on Fridays. But the lawsuit states that employees are required to arrive at work five to 10 minutes early so that they can start their computer and log in to the company's auto-dialer program before their 9 a.m. start time. Employees were not paid for that time, but would be penalized if they were late to log on, even if technical problems forced a late start, according to the lawsuit. The lawsuit also alleges that employees would be penalized for spending "dead time" logged on to the dialer program, but not on a live call -- though a lack of live calls out of the control of employees could still cause them to face disciplinary action. Resource Marketing Center did not respond to a request for comment. The office is located off Route 146, just west of Clifton Park Center. Jason Brown, with the Jersey City-based law firm Brown LLC, filed the lawsuit on behalf of the plaintiffs. He could not be reached for comment on April 2. [GN] RSM US: Ill. App. Reverses Dismissal of Securities Fraud Suit ------------------------------------------------------------- The Appellate Court of Illinois, First District, Fourth Division, issued an Opinion reversing the District Court's judgment granting Defendants' Motion to Dismiss in the case captioned RS INVESTMENTS LIMITED, CORRADO INVESTMENTS LIMITED, EDEN ROCK FINANCE MASTER LIMITED, EDEN ROCK ASSET BASED LENDING MASTER LIMITED, EDEN ROCK UNLEVERAGED FINANCE MASTER LIMITED, and SOLID ROCK SPECIAL SITUATIONS 2 LIMITED D, Plaintiffs-Appellants, v. RSM US, LLP; RSM CAYMAN, LTD.; and SIMON LESSER, Defendants-Appellees. No. 1-17-2410. (Ill. App.). In this action, the shareholders sued the fund's auditors1 for apparently performing no real audits while issuing unqualified annual opinions upon which the plaintiffs relied when they initially invested $1.25 million in the fund in November 2004, increased their shares in each subsequent year, and maintained their $79 million holdings until the fund's downfall in 2008. The shareholders alleged that auditing in conformance with generally accepted accounting principles in the United States would have readily detected that the fund was lending money to a business that was conducting entirely fictitious transactions. The shareholders sought the return of their invested dollars and punitive damages due to the accountants' common law fraud and fraudulent inducement in issuing clean audit reports (count I), as well as negligent misrepresentations (count II), and professional negligence (count III). The judge found that the suit concerned an issue of corporate governance of a Cayman Islands' entity, the plaintiffs' standing was governed by Cayman Islands' reflective loss doctrine, and they lacked standing to sue for an injury that was merely derivative or reflective of the company's injury. The shareholders argue for reversal on grounds that they sued for their own direct injuries from financial statements that portrayed the fabricated enterprise as a legitimate business, were addressed to them, and were foreseeably relied upon by potential and existing investors. They also contend that in a choice of law analysis, Illinois, not Cayman Islands, has the most significant relationship to the parties and the dispute because the principal auditors were in Illinois and their fraudulent reporting also occurred in this jurisdiction. On appeal from the section 2-619 dismissal, the plaintiff shareholders argue that the trial court erred in applying the internal affairs doctrine and, thus, Cayman Islands law, to a suit that does not concern misconduct or negligence of the offshore hedge fund. The plaintiffs emphasize that they did not complain of general corporate mismanagement at Lancelot Offshore, waste of corporate assets, or diminution in the value of their shares. Furthermore, they did not seek damages (on behalf of the corporation) based on their pro rata losses as shareholders when the price of Lancelot Offshore's shares plummeted in 2008. Instead of taking issue with the fund's corporate governance, these shareholders brought direct claims against the fund's outside accountants on grounds that their fraud and misrepresentation about the fund is what led the investors to turn money over to a Ponzi scheme. Instead of attempting to restore the fund's coffers, the plaintiffs sought the dollars they were fraudulently induced to invest and keep invested in reliance on the Illinois accountants' series of materially false and misleading audit opinions regarding the fund. In response, RSM US and Lesser argue the shareholders did seek their pro rata share of the fund's Ponzi-scheme losses and, thus, their suit concerns the internal affairs of Lancelot Offshore and is subject to Cayman Islands law. The accountants argue the trial court followed hornbook law and a uniform line of Illinois cases in deciding that matters pertaining to the internal affairs of a corporation are, almost without exception, to be determined by the law of the state of incorporation. They contend that only in the unusual case will a court disregard the doctrine and apply local law rather than the law of the place where the company was initially incorporated and that this suit does not qualify as that extremely rare instance. They argue that applying the law of the place of incorporation, rather than the law where the plaintiffs chose to file suit, results in uniform treatment of the competing claims of the company, its shareholders, and its creditors, particularly when Lancelot Offshore is bankrupt. Thus, the threshold issue is whether the substantive law of Illinois or Cayman Islands is controlling of the plaintiffs' standing. This is an issue the Court address de novo. A choice-of-law analysis presupposes there is a conflict in the relevant law of two jurisdictions. Therefore, before engaging in the analysis, a court must be assured that a conflict exists. The accountants, as the litigants seeking a choice-of-law determination, had the burden of demonstrating to the trial court that a difference between the laws of Illinois and the laws of Cayman Islands would have made a difference in the outcome of the complaint against them. That is, unless the accountants demonstrated that the laws of the two jurisdictions conflicted, then it would not be appropriate for the court to perform a choice-of-law analysis. The accountants ultimately argue, however, that shareholders who claim a devaluation of their shares lack standing under the laws of both jurisdictions. Thus, instead of demonstrating there was a conflict of laws that required judicial resolution, the accountants have argued that judicial analysis would be pointless. Accordingly, the Court need not delve into the parties' disagreement as to whether the most significant relationship test is the appropriate test in this conflict-of-laws dispute, and the Court will not examine the contacts in the two jurisdictions in order to determine whether Cayman Islands law should be invoked instead of our own forum's principles. The Court finds that the accountants' failure to demonstrate a choice-of-law issue means that Illinois law is controlling. The Court also finds that the trial court erred by assuming that the issue of standing was governed by the internal affairs doctrine and then choosing to apply Cayman Islands law. Based on the Court's reading of the two jurisdictions' legal principles, if the plaintiff shareholders alleged an indirect or reflective claim regarding a loss suffered by Lancelot Offshore, then under both Illinois and Cayman Islands law, the plaintiffs lack standing to sue. However, if they have alleged a claim that is direct and different from the fund's claims, then under the laws of both jurisdictions, the plaintiffs have standing to sue. The Court concluded above that Illinois law is controlling because the accountants failed to show there was a conflict between the laws of Illinois and Cayman Islands, but based upon our de novo review, the Court also concludes there is no conflict between the shareholder standing principles of the two jurisdictions. The gravamen or essence of this complaint is that the plaintiffs were injured as early as 2004 because they invested and continued to invest in a Ponzi scheme between 2004 and 2008 in direct reliance on the defendants' audit opinions. These are allegations that the plaintiffs' funds were lost when they were transmitted to Lancelot Offshore between 2004 and 2008, as the inevitable fate of a Ponzi scheme is its implosion. At the risk of stating the obvious, Ponzi schemes are phony investment plans in which monies paid by later investors are used to pay artificially high returns to the initial investors, with the goal of attracting more investors. Ponzi schemes have also been described as any sort of fraudulent arrangement that uses later acquired funds or products to pay off previous investors. The term Ponzi scheme is derived from Charles Ponzi, a famous Boston swindler. With a capital of $150, Ponzi began to borrow money on his own promissory notes at a 50% rate of interest payable in 90 days. Ponzi collected nearly $10 million in 8 months beginning in 1919, using the funds of new investors to pay off those whose notes had come due. Allegations that the plaintiffs were misled by the defendants' opinions to give money to a Ponzi scheme between 2004 and 2008 are not allegations that implicate any decisions in the hedge fund's corporate governance. When this court considers who suffered the alleged harm and who would receive the benefit of any recovery or other remedy. Accordingly, the suit is not fairly characterized as a shareholders' claim for indirect or reflective losses resulting from losses the fund incurred when it eventually collapsed in 2008. Regardless of the language the defendant auditors focus upon in paragraph 11 of the pleading, the complaint does not indicate the plaintiffs were attempting to recover the company's losses that occurred in 2008 or that their claims were indirect claims regarding a diminution of the value of their shares in 2008. Based on the Ill. App.'s reading of the complaint in light of the concepts of the internal affairs doctrine and the standing rule that generally prevents shareholders from bringing claims that are merely indirect or reflective of the company's own losses, the Court finds that the trial court erroneously concluded that the complaint presented issues related to the corporate governance of Lancelot Offshore. For these reasons, the Court finds that the trial court erred in dismissing the shareholders' complaint with prejudice on the basis of section 2-619. The trial court granted the motion without requiring the defendant accountants to demonstrate a conflict between the laws of Illinois and Cayman Islands as to shareholder standing, and without properly assessing the gravamen of the shareholders' allegations. The Court reverses the dismissal order and remand for further proceedings consistent with our reasoning. A full-text copy of the Ill. App.'s February 28, 2019 Opinion is available at https://tinyurl.com/y5ldl5gx from Leagle.com. SETERUS INC: May 27 Barilla Class Certification Bid Filing Deadline ------------------------------------------------------------------- In the case, NICOLE BARILLA, Plaintiff, v. SETERUS, INC, Defendant, Case No. 2:19-cv-46-FtM-99UAM (M.D. Fla.), Magistrate Judge Douglas N. Frazier of the U.S. District Court for the Middle District of Florida, Fort Myers Division, granted in part the Joint Motion and Proposed Order Regarding L.R. 3.05 Case Management Conference and Extending Plaintiff's Deadline for Moving for Class Certification and Incorporated Memorandum of Law. The parties request the Court's permission to hold their Case Management Conference ("CMC") by telephone and request that the Court extend the class certification motion deadline pending the parties' proposal in their Case Management Report ("CMR"). The Plaintiff's class certification motion is currently due April 25, 2019. The parties request to extend the class certification motion deadline to a date to be determined by the Court after the parties file their CMR, stating that the parties need to take discovery before filing the class certification motion. As it is the parties' first request to extend the class certification motion deadline and discovery has not yet commenced, Magistrate Judge Frazier finds good cause to grant the extension, but not to the indefinite extent requested. Instead, the will grant an extension of 30 days for the motion for class certification at this time, but the parties may propose an alternative deadline in their CMR, which the undersigned will take under advisement. Finally, he finds good cause to allow the parties to conduct their CMC by telephone. Accordingly, the Magistrate Judge granted in part the Joint Motion and Proposed Order Regarding L.R. 3.05 Case Management Conference and Extending Plaintiff's Deadline for Moving for Class Certification and Incorporated Memorandum of Law. The Plaintiff will have up to and including May 27, 2019 to file her motion for class certification, but the parties may propose an alternative deadline in their CMR. The parties may conduct their CMC by telephone. A full-text copy of the Court's April 9, 2019 Order is available at https://is.gd/C4XaME from Leagle.com. Nicole Barilla, Plaintiff, represented by Asa C. Edwards -- info@maginnislaw.com -- Maginnis Law PLLC, Edward H. Maginnis, Maginnis Law PLLC, pro hac vice, Karl S. Gwaltney, Maginnis Law PLLC, pro hac vice & Scott C. Harris -- scott@wbmllp.com -- Whitfield, Bryson & Mason, LLP. Seterus, Inc, Defendant, represented by Brittney Lauren Difato -- bdifato@mcguirewoods.com -- McGuireWoods, LLP & Sara F. Holladay-Tobias -- stobias@mcguirewoods.com -- McGuireWoods, LLP. SEVIER COUNTY, TN: Court Grants Class Certification in "Whitlock" ----------------------------------------------------------------- In the class action lawsuit,LARRY WHITLOCK, et al., the Plaintiffs, v. SEVIER COUNTY, TENNESSEE, the Defendant, Case No. 3:18-cv-00233-HSM-HBG (E.D. Tenn.), the Hon. Judge Harry S. Mattice, Jr. entered an ordered: 1. granting Plaintiff's motion for conditional certification; 2. directing Defendant within seven days of this order to provide Plaintiffs' Counsel a "computer-readable file" containing the names (last name first), last known physical addresses, email address, telephone number, and dates of employment of: "all current and former Paramedics and EMTs who worked between June 12, 2015 to June 12, 2018"; 3. directing Plaintiff to amend his proposed notice form to include the following sentence at the end of the second to last paragraph on the second page: "If the lawsuit is unsuccessful, there is a possibility that you may be liable for the payment of Defendant's costs in defending the lawsuit." The Plaintiff will deliver the amended notice form to the Defendant and file it in the record within seven days of this order; and 4. after receiving Plaintiff’s amended notice form, directing Defendant to prominently post or display the amended notice form at any and all of its EMS Department facilities where Paramedics and EMTs typically congregate (e.g. the break room at ambulance stations, administrative offices, et cetera), preferably at, on, near or otherwise in viewing distance of timeclocks or other "clock-in" computers used by Defendant's Paramedics and EMTs.[CC] SHAW'S SUPERMARKETS: Garlick Suit Removed to Mass. Dist. Ct. ------------------------------------------------------------ The case captioned as MATTHEW S. GARLICK, individually and on behalf of all others similarly situated, Plaintiff, v. SHAW'S SUPERMARKETS, INC., NEW ALBERTSONS, INC., ALBERTSONS COMPANIES, INC., STANDARD INSURANCE CO., and CONDUENT HUMAN RESOURCE SOLUTIONS, LLC, Defendants, Case No. 1984CV01017 was removed from the Superior Court in Suffolk County, State of Massachusetts to the United States District Court for the District of Massachusetts on April 26, 2019, and assigned Case No. 1:19-cv-10987-WGY. Plaintiff in his Complaint alleges he participated in an employer sponsored group welfare benefit plan (the "Plan"). Plaintiff further alleges that a group insurance policy (the "Group Policy") issued by Standard funds benefits under the Plan. The Group Policy is part of (1) a plan, fund, or program (2) established or maintained (3) by an employer (4) for the purpose of providing benefits in the event of sickness, accident, disability, or death (5) to participant employees or their beneficiaries. Thus, the Group Policy is part of an employee welfare benefit plan as defined by ERISA. Plaintiff claims entitlement to ERISA-regulated benefits in that he seeks to recover life insurance benefits allegedly owed to him under the Plan and Group Policy.[BN] The Defendants are represented by: Brooks R. Magratten, Esq. PIERCE ATWOOD LLP One Financial Plaza, 26th Floor Providence, RI 02903 Phone: (401) 588.5166 Email: bmagratten@pierceatwood.com - and - Joshua D. Dunlap, Esq. PIERCE ATWOOD LLP Merrill's Wharf 254 Commercial Street Portland, ME 04101 Phone: (207) 791-1100 Email: jdunlap@pierceatwood.com - and - Jonathan R. Shank, Esq. JACKSON LEWIS P.C. 75 Park Plaza, 4th Fl. Boston, MA 02116 Phone: (617) 367-0025 Email: jonathan.shank@jacksonlewis.com - and - Stephen D. Rosenberg, Esq. Katherine Brustowicz, Esq. THE WAGNER LAW GROUP 99 Summer Street, 13th Fl. Boston, MA 02110 Phone: (617) 357-5200 Email: srosenberg@wagnerlawgroup.com SINEMIA: Adds Class Action Waiver Clause to Terms of Service ------------------------------------------------------------ Nathan McAlone, writing for Business Insider, reports that MoviePass competitor Sinemia is trying to prevent subscribers from suing. In late March, the movie-ticket subscription service added a clause to its terms of service that says the user waives any rights to "bring or participate in a class action whether brought in arbitration or in any state court." The terms also say the subscriber waives the right "to bring a lawsuit in court." Being sued by subscribers isn't a theoretical scenario for Sinemia. The company is the subject of an ongoing class-action lawsuit -- filed in November and amended in February -- that alleges that the service "essentially become a bait-and-switch scheme" because of a new fee. The firm that brought the case, Chimicles Schwartz Kriner & Donaldson-Smith LLP, said it's unconcerned about the new clause, however. "Courts have repeatedly held that these types of unilateral, one-sided changes to contracts are not enforceable," Benjamin F. Johns, a partner at the firm, told Business Insider. "We are not concerned about it." "The arbitration and governing law provisions were recently added as part of a normal review of Sinemia's Terms of Use," Sinemia said in a statement. "The term at issue is consistent with US law and is enforceable. Similar terms are routinely used by other companies within the ticket industry space." The crux of the class-action lawsuit is a $1.80 per-movie "processing fee" introduced by Sinemia in October to subscribers, including those who had prepaid for a yearly subscription. The suit alleges that the new fee "dramatically changes the value proposition that customers thought they were getting." The suit claims Sinemia's conduct includes "fraud, breaches of contract, violations of state consumer protection laws, and unjust enrichment." "While nobody enjoys fees, there are certain costs related to booking and processing outside of the price of the movie ticket," Sinemia said last month in a statement to Business Insider in response to the amended lawsuit. "As our customers are already aware, the processing fee is a requisite part of Sinemia subscriptions. This allows Sinemia to maintain being the only movie ticket subscription service to provide access to all showtimes for all movies in all theaters without restrictions." In addition to the processing fee, Sinemia has faced criticism from customers on topics ranging from unfair account terminations, to "misuse" fees, to demands for ID verification. [GN] STAMPS.COM INC: Pomerantz Law Firm Files Shareholders' Suit ----------------------------------------------------------- Pomerantz LLP announces that a class action lawsuit has been filed against Stamps.com, Inc. (NASDAQ: STMP) and certain of its officers and directors. The class action, filed in United States District Court, Central District of California, and indexed under 19-cv-01828, is on behalf of a class consisting of all persons and entities, other than Defendants and their affiliates, who purchased, or otherwise acquired, Stamps.com securities between May 3, 2017 and February 21, 2019, inclusive (the "Class Period"). This action is brought on behalf of the Class (as defined below) for violations of Sec. 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), and Rule 10b-5 promulgated thereunder. If you are a shareholder who purchased Stamps securities between May 3, 2017, and February 21, 2019, you have until April 29, 2019, to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 9980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. Stamps.com is a provider of Internet-based mailing and shipping solutions in the United States. Under the Stamps.com and Endicia brands, Stamps.com customers use United States Postal Service ("USPS") solutions to mail and ship a variety of mail pieces and packages through the USPS. Customers using Stamps.com solutions receive discounted postage rates compared to USPS.com and USPS retail locations on certain mail pieces. The complaint alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) the Company's financial results depended on the manipulation of a USPS reseller program that cost USPS an estimated $235 million per year; and (ii) as a result, the Company's business was unsustainable, and its financial results were highly misleading. The truth emerged on February 21, 2019, after the market closed, when Stamps.com held a conference call to discuss its financial results from the fourth quarter of 2018 and fiscal year 2018 as well as its business outlook and "certain strategic items . . . that impact our business outlook for 2019." On the call, the Company's Chairman and Chief Executive Officer ("CEO"), Kenneth McBride ("McBride"), inexplicably stated that the Company was discontinuing its shipping partnership with USPS—despite the fact that USPS-related business accounts for 87% of the Company's revenue. The Company further announced that, contrary to previous expectations of strong growth, 2019 revenue was expected to decline 5.4%. 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. On February 26, 2019, it was reported that, contrary to McBride's representations, USPS itself had decided to terminate its relationship with Stamps.com in the face of the Company's increasing demands and abuse of the USPS's reseller program. Contact: Robert S. Willoughby, Esq. Pomerantz LLP Telephone: 888-476-6529 ext. 9980 Website: www.pomerantzlaw.com Email: rswilloughby@pomlaw.com [GN] SUNCOKE ENERGY: Faces Marks Suit over Merger Transaction -------------------------------------------------------- A securities class action is brought by Plaintiff Arthur Marks, on behalf of himself and the other public holders of the common units of SunCoke Energy Partners, L.P. (SXCP) against the company and the members of the company's board of directors for their violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934, Securities and Exchange Commission (SEC) Rule 14a-9, 17 Code of Federal Regulations (C.F.R.) 240.14a-9, and Regulation G, 17 C.F.R. Sec. 244.100 in connection with the proposed merger between SXCP and SunCoke Energy, Inc. The case is captioned ARTHUR MARKS, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. SUNCOKE ENERGY PARTNERS, L.P., MICHAEL G. RIPPEY, P. MICHAEL HARDESTY, JOHN W. SOMERHALDER II, ALVIN BLEDSOE, FAY WEST, KATHERINE T. GATES, and MARTHA CARNES, Defendants, Case No. 1:19-cv-00693-UNA (D. Del., April 17, 2019). On Feb. 5, 2019, the board of directors caused the SunCoke Energy Partners to enter into an agreement and plan of merger pursuant to which the company's unitholders stand to receive 1.40 shares of common stock of SunCoke for each SXCP unit they own plus a fraction of a share of SunCoke common stock equal to the product of the number of days, beginning with the first day of the most recent full calendar quarter with respect to which an SXCP unitholder distribution record date has not occurred and ending on the day immediately prior to the closing of the merger, multiplied by a daily distribution rate equal to the quotient of the most recent regular quarterly cash distribution paid by SXCP divided by 90, whose product is then divided by $10.91, the closing price of SunCoke common stock as of Feb. 1, 2019. On March 8, 2019, in order to convince SXCP unitholders to vote in favor of the proposed merger, the board authorized the filing of a materially incomplete and misleading Form S-4 Registration Statement with the SEC, in violation of Sections 14(a) and 20(a) of the Exchange Act. While touting the fairness of the merger consideration to the company's unitholders in the S-4/A, Defendants have failed to disclose certain material information that is necessary for unitholders to properly assess the fairness of the Proposed Merger, thereby violating SEC rules and regulations and rendering certain statements in the S-4/A materially incomplete and misleading. In particular, the S-4/A contains materially incomplete and misleading information concerning the financial projections for the company that were prepared by the company and relied on by Defendants in recommending that SXCP unitholders vote in favor of the proposed merger. The financial projections were also utilized by SXCP's financial advisor, Citigroup Global Markets Inc., in conducting certain valuation analyses in support of its fairness opinion. SXCP is incorporated in Delaware and maintains its principal executive offices at 1011 Warrenville Road, Suite 600, Lisle, Illinois 60532. The company's common units trade on the NYSE under the ticker symbol SXCP. [BN] The Plaintiff is represented by: Michael Van Gorder, Esq. FARUQI & FARUQI, LLP 3828 Kennett Pike, Suite 201 Wilmington, DE 19807 Telephone: (302) 482-3182 E-mail: mvangorder@faruqilaw.com - and - Nadeem Faruqi, Esq. James M. Wilson, Jr., Esq. FARUQI & FARUQI, LLP 685 Third Ave., 26th Fl. New York, NY 10017 Telephone: (212) 983-9330 E-mail: nfaruqi@faruqilaw.com jwilson@faruqilaw.com TERRACE VIEW: Cal. App. Flips $57MM Punitive Damage Award in Bevis ------------------------------------------------------------------ The Court of Appeals of California, Fourth District, Division One, issued an Opinion reversing the jury award for compensatory and punitive damages in the cases captioned DAVID BEVIS et al., Plaintiffs and Appellants, v. TERRACE VIEW PARTNERS, LP et al., Defendants and Appellants; DAVID BEVIS et al., Plaintiffs and Respondents, v. TERRACE VIEW PARTNERS, LP et al., Defendants and Appellants. Nos. D071849, D072825. (Cal. App.). The Defendants appeal from the judgment and post-judgment order awarding the plaintiffs' attorney fees and the plaintiffs appeal from the post-judgment order reducing the jury's award of punitive damages. Sixty-nine current and former residents of mobilehome park Terrace View Mobile Home Estates (Terrace View or the park) filed the present lawsuit against the Defendants. The operative first amended complaint, styled as a class action, included 12 causes of action based on allegations that defendants' failure to maintain the park in good working order and condition created a nuisance that, along with unreasonably high space rent increases, made it difficult or impossible for park residents to sell their mobilehomes. The jury awarded the individual plaintiffs economic, noneconomic, and punitive damages in varying amounts. The total amounts awarded were $1,289,000 in compensatory damages ($759,000 in economic damages and $530,000 in noneconomic damages) and $57 million in punitive damages. After the jury was discharged, the court issued an order on plaintiffs' cause of action alleging defendants violated Business and Professions Code section 17200 et seq., commonly referred to as the unfair competition law (UCL). The Defendants contend: (1) the amount of rent they charged plaintiffs under their lease and month-to-month rental agreements cannot be restricted in the absence of a rent control ordinance; (2) there was insufficient evidence to support the verdict on plaintiffs' cause of action for intentional interference with property rights; (3) the court prejudicially erred by giving an erroneous special instruction on the implied covenant of good faith and fair dealing; (4) there was insufficient evidence to support the verdict on plaintiffs' cause of action for breach of the implied covenant of good faith and fair dealing under the correct legal standards; (5) the court abused its discretion in denying defendants' request to bifurcate the trial of plaintiffs' equitable cause of action for violation of the UCL; (6) the court prejudicially erred by changing its ruling on the legality of the catch-up provision in defendants' lease after trial; (7) the court erred in ruling the catch-up provision was unfair under the UCL; (8) the court's ruling that defendants violated the UCL cannot be upheld under the fraud prong of the UCL; (9) the court erred in denying Terrace View's motion for new trial on the ground of irregularity of the proceedings based on plaintiffs' counsel's improper opening and closing argument; (10) the jury's award of economic damages of $750,000 for diminution of property value, overpayment of rent, and/or interference with use and enjoyment of homes was not sufficiently supported by the evidence; (11) the award of punitive damages was not sufficiently supported by evidence of malice, oppression, or fraud; and (12) the court abused its discretion by awarding plaintiffs' full recovery of attorney fees despite their failure to prevail on some of their claims and the unavailability of attorney fees for their UCL cause of action, and by not reducing plaintiffs' fee award by the amount they billed for unadjudicated medical treatment claims and their unsuccessful class certification motion; and (13) the court erred in awarding an enhancement to the lodestar amount of plaintiffs' attorney fees. Defendants Cannot Be Held Liable for Charging Rental Rates That the Parties' Leases and Rental Agreements Allowed In their 12th cause of action for rescission and declaratory and injunctive relief, the homeowners requested that defendants return all rents they were forced to pay in excess of the fair market value of their spaces. The homeowners further sought consequential damages caused by the unconscionable rent terms, including interference with the sale of their homes, loss of their homes, and, emotional distress. In their allegations of an actual controversy for purposes of declaratory relief, the homeowners alleged their right to continued tenancies in the Park at a rent level that corresponds to the reasonable worth of their tenancies. At trial, the plaintiffs testified about high rent and the effect it had on their lives, as noted in our statement of facts above. Plaintiffs' main damages expert, commercial appraiser Robert Caringella, testified regarding his comparison of the rent charged at Terrace View to the rent charged at 10 comparable parks in the Lakeside area. He showed the jury a chart that listed rents paid in other parks in the area, and testified that the average rent in nine of the parks he visited (plus four or five other parks) was $850. He further testified that market rent for Terrace View was $900 to $1,000, and that this assumes Terrace View is well-managed, there's no problems with maintenance, there's•no issues with water, sewer, electrical, that this is a nice place to live. Caringella did not offer any opinion on damages that plaintiffs suffered as a result of defendants' alleged failure to maintain the park in good working order and condition. In closing argument to the jury, plaintiffs' counsel focused mainly on defendants' rent increase practices. He argued, When you have the right to set the rent and you're•the only one that does it, you have to set a fair rent, and you don't put illegal language in the contract or make people sign illegal documents, and if they refuse to do it you charge them or gouge them money. The Court recognizes that overpayment of rent could refer to a rented property not being worth the amount of rent being paid because a nuisance created by defendant negatively affects the property's habitability or the tenant's quiet enjoyment of the premises. However, plaintiffs' primary nuisance theory was that defendants failed to maintain the park in good working order and condition and the jury expressly rejected that theory on the special verdict forms. Although the jury found in favor of plaintiffs on their secondary nuisance theory based on defendants' failure to follow their own park rules that required them to maintain their park-owned vacant mobilehomes in good condition, and presumably some percentage of the jury's award is attributable to that claim, it is inconceivable that this secondary nuisance claim was the main basis for the jury's award of $1,289,000 in compensatory damages and $57 million in punitive damages. The twofold gravamen of plaintiffs' case clearly was that: (1) defendants' failure to maintain the park in good working order and condition created a nuisance that caused them compensable harm and (2) defendants imposed unreasonably high space rent increases that some plaintiffs could not afford and that made it difficult or impossible for plaintiffs to sell their mobilehomes. In light of the jury's rejection of plaintiffs' primary nuisance claim based on failure to maintain the park, it is reasonable to conclude that the main basis for the jury's awards of compensatory and punitive damages was the high rental rates plaintiffs had paid or were paying. Rent May Not Be Limited to a Lower Rate Than a Rental Agreement Allows in the Absence of a Rent-control Ordinance In jurisdictions not subject to local rent controls, landlords have virtually unlimited discretion in setting the amount of rent for new tenants, regardless of the reason the particular rental unit was vacated. Likewise, except as otherwise stated in a tenant's lease, and provided proper statutory notice is given, there is generally no limit on the amount by which rents on existing tenancies may be increased. Accordingly, where rented property is not subject to a rent control ordinance, as a general rule the property owner cannot be held civilly liable for charging an amount of rent that is expressly allowed under the parties' written lease agreement or is not precluded by law under a month-to-month rental agreement.11 With this principle in mind, we consider the various theories under which the jury was instructed that it could award overpayment of rent as economic damages. Intentional Interference with Property Rights Plaintiffs' position is that defendants' charging unreasonably high rent subjects them to liability in tort for intentional interference with property rights. There is not a clearly defined cause of action in tort in California for intentional interference with property rights. In summary, California case law has recognized a tort cause of action for wrongful eviction, including breaches of the covenant of quiet enjoyment that compel a tenant to vacate, whereas breach of covenant of quiet enjoyment that does not result in a wrongful constructive or actual eviction is a breach of contract. Although under California law there is no clearly defined cause of action for intentional interference with property rights absent a constructive eviction, the jury received a special instruction at trial that specified the elements of plaintiffs' interference cause of action as follows: 1. Plaintiffs had a property right or privilege with respect to the use, enjoyment or sale of their property. 2. Defendants wrongfully interfered with plaintiffs' right. 3. Defendants' conduct caused damage to plaintiffs. Defendants essentially argue there was insufficient evidence to support the verdict on plaintiffs' cause of action for intentional interference with property rights because the only evidence supporting that verdict was evidence that plaintiffs' rent was above market rent and, as a matter of law, plaintiffs' high rent cannot constitute interference with their property rights because the rental agreements allowed defendants to charge that rent. Plaintiffs argue the tort of intentional interference with property rights lies when a mobilehome park owner interferes with tenants' right to sell their mobilehomes by raising rent to levels that render the homes unsalable. They argue that evidence of interference included evidence that defendants purposely sabotaged plaintiffs' fundamental property right to sell their homes through prohibitively high rent, unreasonable discretionary rent assignments, lower rent rates for defendants' buyers, high vacancy rates, blighted homes, and unlawful rights of first refusal. The Court agrees that the high rental rates plaintiffs paid cannot constitute tortious interference with their property rights. The Court is aware of no authority that allows an award of tort and punitive damages against a landlord for charging above-market rental rates that are expressly allowed by the parties' lease agreement or by law applicable to month-to-month tenancies. Regarding high vacancy rates, blighted homes, and unlawful first rights of refusal, defendants correctly observe that no evidence was presented at trial that these circumstances interfered with the plaintiffs' attempt to sell their homes. Nor was there any evidence that defendants prevented a sale by refusing to allow it to go forward. The only reason cited in various plaintiffs' testimony for their inability to sell their homes in place was the high rent the prospective buyers would have to pay. Breach of the Implied Covenant of Good Faith and Fair Dealing Defendants contend the court gave an erroneous special instruction regarding the implied covenant of good faith and fair dealing that allowed the jury to find the implied covenant was breached if a plaintiff's lease agreement was not a good deal. Defendants further contend the evidence was insufficient to support the verdict on plaintiffs' cause of action for breach of the implied covenant of good faith and fair dealing under the correct legal standards. The Court concludes the jury instructions, evidence presented at trial, and plaintiffs' counsel's closing argument allowed the jury to improperly award amounts the plaintiffs paid above Caringella's market rent figure of $850 per month as damages for defendants' breach of the implied covenant of good faith and fair dealing in the parties' rental agreements. It is well settled that an implied covenant of good faith and fair dealing cannot contradict the express terms of a contract. The general rule regarding the covenant of good faith is plainly subject to the exception that the parties may, by express provisions of the contract, grant the right to engage in the very acts and conduct which would otherwise have been forbidden by an implied covenant of good faith and fair dealing. Accordingly, defendants here cannot be held liable for breach of the implied covenant of good faith and fair dealing by implementing rent increases that the parties' written lease agreements expressly authorized. The Court concludes there was no evidence that defendants breached the implied covenant of good faith and fair dealing in setting rental rates for month-to-month tenants.In other words, it is unnecessary to invoke the implied covenant of good faith and fair dealing to limit a contracting party's discretion affecting the contractual rights of the other party if that discretion is subject to other prescribed or implied limitations, such as being in proportion to an objectively determined base. Here, defendants did not impose unpredictable, arbitrary rent increases on their month-to-month tenants; they followed the rent increase formula in the long-term written leases with the exception that the annual increase for a month-to-month tenant was 5 percent above the CPI instead of the 4 percent charged under the leases. Thus, the month-to-month rent increases were subject to the implied limitation of 5 percent above CPI and were in proportion to that objectively determinable base formula. Because they were subject to an implied limitation and an objectively determined base, the annual rent increases defendants imposed cannot be deemed to have breached any implied covenant of good faith and fair dealing in the parties' month-to-month rental agreements. Nuisance As we discussed, the jury rejected plaintiffs' primary nuisance claim that defendants failed to maintain the park in good working order and condition, but found in favor of plaintiffs on their nuisance claim based on defendants' failure to follow their own park rules that required them to maintain their park-owned vacant mobilehomes in good condition. Although some percentage of the jury's award presumably is attributable to the jury's nuisance finding, the Court cannot presume the nuisance finding was the main basis for the jury's award of $1,289,000 in compensatory damages and $57 million in punitive damages. Because the jury rejected plaintiffs' primary nuisance claim based on defendants' alleged failure to maintain the park, it is reasonable to conclude that the main basis for the jury's awards of compensatory and punitive damages was the high rental rates plaintiffs had paid or were paying. Accordingly, the Court cannot sustain the jury's unsegregated compensatory damage award on the ground the entire award could be reasonably viewed as compensation on plaintiffs' secondary nuisance claim. Negligence A lessor's charging rental rates that are authorized by contract or law cannot constitute negligence. In a contract for services, a contracting party may be liable for negligence in the performance of those services or failure to perform. But outside that context, where a contract calls for the payment of money in exchange for use of property or other consideration not involving the provision of services, we are aware of no authority for the proposition that the contracting party receiving payment of money can be held liable on a negligence theory for charging a price that the contract expressly allows. The jury's compensatory damage award based primarily on high rent is not sustainable as damages that the jury could properly have awarded under plaintiffs' negligence theory. Breach of Contract/Breach of the Covenant of Quiet Enjoyment The factual bases for plaintiffs' claims for breach of contract and breach of the covenant of quiet enjoyment are somewhat unclear, but high rent is one of them. In the second cause of action for breach of contract in plaintiffs' first amended complaint, plaintiffs alleged that although the form of contract varied between defendants and each plaintiff, the essential common provisions are that Plaintiffs agreed to pay rent in exchange for Defendants' promise to: (1) provide and maintain the Park's common areas, facilities, services and physical improvements in good working order and condition; (2) provide a lot in safe, habitable condition; (3) enforce Park rules regulations consistent with the requirements of Civil Code section 798.15; (4) deal with Plaintiffs in good faith; and, (5) preserve Plaintiffs' quiet enjoyment of their premises. The second cause of action then alleges that defendants breached the contracts as set forth herein and in paragraphs 12 and 13. In their 10th cause of action for breach of the covenant of quiet enjoyment plaintiffs alleged: Defendants have breached the covenant by failing to maintain the Park as set forth herein in paragraphs 12 and 13, by interfering with Plaintiffs' ability to sell their mobilehomes in place, including by raising rents to unreasonably high levels, by illegally changing the use of the Park, and by Defendants' other actions and conduct alleged in this Complaint. The jury's finding that defendants breached their rental agreements with plaintiffs and breached the covenants of quiet enjoyment included in those agreements was likely based in part on its finding under plaintiffs' nuisance claim that defendants failed to enforce or follow the park's own rules and regulations, since the jury rejected the other theory for nuisance and breach of contract that defendants failed to maintain the park in good working order and condition. As with the nuisance theory, however, the Court cannot reasonably conclude the jury based its damage awards primarily on its finding that defendants failed to enforce park rules and regulations. Given the above-noted jury instructions and argument of counsel, it is more likely that the jury based its verdict and damage award under plaintiffs’ breach of contract/breach of the covenant of quiet enjoyment theory primarily on the high rent defendants charged plaintiffs. It needs no citation to authority to state that a contracting party's performance of a contract in accordance with its express terms or the law cannot constitute a breach of the contract. Defendants cannot be held liable for breach of contract or the covenant of quiet enjoyment by charging rent expressly authorized by a written lease or allowed by law. Unsegregated Verdict Form Plaintiffs argue that because the special verdict form did not segregate the jury's award of damages by causes of action, defendants cannot establish prejudice from Special Instruction No. 66. In the present case, neither the instructions nor verdict form directed the jury to segregate economic damages by category, i.e., to specify the type of damages it was awarding (e.g., diminution of value and overpayment of rent) and the verdict form did not require the jury to segregate any compensatory damages by cause of action or legal theory. This rendered the verdict ambiguous because the Court cannot determine what portion of the jury's compensatory damage award is based on the condition of the park as a result of defendants' failure to follow park rules and what portion is based on high rent. However, as the Court discussed, it is clear from the record that any damages based on defendants' failure to follow park rules are substantially dwarfed by improper compensatory damages based on high rent. Because the Court is unable to resolve the ambiguity in the verdict form and cannot conclude the entire award of compensatory damages reasonably could have been based on a viable legal theory other than overpayment of rent, reversal is appropriate. In summary, the jury instructions, testimony of plaintiffs and Caringella, and argument of counsel allowed the jury to incorrectly conclude it could properly award, under multiple theories, the difference between what plaintiffs paid in rent and what they would have paid had their rent been in the fair market range that Caringella quoted, and that it could also hold defendants liable in tort and award punitive damages against them for charging plaintiffs such overpayment of rent and for the diminution in the value of their homes the high rent caused. Unconscionability and Plaintiffs' UCL Claim The Court's conclusion that plaintiffs' compensatory damages cannot properly be based on high rent that is authorized under the parties' rental agreements raises the question of what, if any, remedy exists for a mobilehome park tenant who is trapped in a lease or month-to-month rental agreement that has resulted in high monthly space rent that renders the tenant's mobilehome unsalable. One appellate court has observed that a party to a commercial lease who is trapped in a bad bargain has only one escape route left: to invoke the doctrines of adhesion and unconscionability. The Court believes the same is true for a party to a mobilehome park lease who is trapped in a bad bargain. The trial court's ruling that the subject leases are not unconscionable and its adjudication of plaintiffs' cause of action for violation of the UCL are not severable from the portion of the judgment we are reversing. Consequently, the Court will vacate the order addressing unconscionability and the portion of the judgment adjudicating the UCL claim. The portions of the judgment awarding plaintiffs compensatory and punitive damages are reversed. The portion of the judgment ruling that the catch-up provision in defendants' leases violates Business and Professions Code section 17200 and ordering injunctive relief regarding the catch-up provision is reversed. The June 9, 2017 and July 24, 2017 orders awarding attorney fees and costs to plaintiffs and the portion of the judgment reflecting the June 9 order are reversed. The portions of the judgment ruling that the lease provisions concerning the right of first refusal, release, and the arbitration provision violate the MRL and that paragraphs 56.1, 56.2 and 34 of the lease and paragraphs 5.1 and 9.1 of the lease amendment are unlawful are affirmed. The February 21, 2017 order awarding punitive damages to plaintiffs is reversed. Defendants' appeal from the June 9, 2017 order awarding attorney fees and costs and the July 24, 2017 order correcting the award of attorney fees, and plaintiffs' appeal from the February 12, 2017 order reducing the jury's award of punitive damages are dismissed as moot. Defendants are awarded their costs on appeal. A full-text copy of the Cal. App.'s February 28, 2019 Opinion is available at https://tinyurl.com/y2fq3xcn from Leagle.com. Cooksey, Toolen, Gage, Duffy, & Woog, Phil Woog -- pwoog@cookseylaw.com -- Matthew R. Pahl -- mpahl@cookseylaw.com -- DENTONS, Charles A. Bird -- Charles.Bird@dentons.com -- Manning, Kass, Ellrod, Ramirez, and James E. Gibbons for Defendants and Appellants in D071849 and D072825. Allen, Semelsberger & Kaelin, James C. Allen , and Jessica S. Taylor, 600 B St, Ste 2400, San Diego, CA 92101, for Plaintiffs and Appellants in D071849 and for Plaintiffs and Respondents in D072825. TRADER JOE'S: Calif. Court Strikes Down $1.3MM Tuna Class Action ---------------------------------------------------------------- IntraFish reports that a California court has struck down a $1.3 million tuna class action against Trader Joe's. "California law may only be used on a classwide basis if the interests of other states are not found to outweigh California's interest in having its law applied," the judge wrote. [GN] TRANS WORLD: Spack et al. Seek to Certify FLSA Class ---------------------------------------------------- In the two class action lawsuits, the Plaintiffs will move the Court on May 24, 2019, for an order: 1. conditionally certifying the cases as a Fair Labor Standards Act colleective action; and 2. authorizing the Plaintiffs to send notice of pendency to the putative Senior Assistant Managers ("SAMs) collective action members. The lawsuits are: "CAROL SPACK, TABITHA SCHMIDT, Individually and on behalf of all others similarly situated, as Collective representative, the Plaintiff, vs. TRANS WORLD ENTERTAINMENT, CORPORATION and RECORD TOWN, INC., the Defendants, Case No. 1:17-cv-01335-TJM-CFH (N.D.N.Y.)"; - and - "NATASHA ROPER, Individually and on behalf of all others similarly situated, as Collective representative, the Plaintiff, vs. TRANS WORLD ENTERTAINMENT, CORPORATION and RECORD TOWN, INC., the Defendants, Case No. 1:17-cv-00553-TJM-CFH (N.D.N.Y.)".[CC] Attorneys for ther Plaintiffs: Stephan T. Mashel, Esq. MASHELL LAW, LLC 500 Campus Dr., Suite 303 Morganville, NJ 07751 Telephone: 732 385-8448 E-mail: mashellawllc.com TRANSDEV SERVICES: Hakeem Suit Removed to N.D. California --------------------------------------------------------- The case captioned CHAUENGA M. HAKEEM on behalf of herself and others similarly situated, Plaintiff, v. TRANSDEV SERVICES, INC.; TRANSDEV NORTH AMERICA, INC.; TRANSDEV; TRANSDEV, INC.; and DOES 1-100, Defendants, Case No. RG 19009094 was removed from the Superior Court of the State of California in the County of Alameda, to the United States District Court for the Northern District of California on April 22, 2019, and assigned Case No. 4:19-cv-02161-DMR. The Complaint asserts seven causes of action for: (1) Failure to Pay Wages for All Hours of Work at the Legal Minimum Wage Rate in Violation of Labor Code Sections 1194, 1194.2, & 1197 And the Wage Orders; (2) Failure to Pay Wages for All Time Worked at Overtime Rate in Violation of Labor Code Sections 510, & 1194 and the Wage Orders; (3) Failure to Provide Rest Periods and Rest Period Premium Wages in Violation of Labor Code Section 226.7 and the Wage Orders; (4) Failure to Pay All Accrued and Vested Vacation/PTO Wages in Violation of Labor Code Section 227.3; (5) Failure to Provide Accurate Wage Statements in Violation of Labor Code Section 226 and the Wage Orders; (6) Failure to Timely Pay Final Wages in Violation of Labor Code Sections 201 & 202; and (7) Unfair Competition in Violation of Business & Professions Code Section 17200.[BN] The Defendants are represented by: PAUL M. GLEASON, ESQ. TOREY J. FA V AROTE, ESQ. JING TONG, Esq. GLEASON & FA V AROTE, LLP 4014 Long Beach Blvd., Suite 300 Long Beach, CA 90807 Phone: (213) 452-0510 Facsimile: (213) 452-0514 Email: pgleason@gleasonfavarote.com tfavarote@gleasonfavarote.com jtong@gleasonfavarote.com TRW AUTOMOTIVE: Samouris Sues Over Defective Airbag Control Units ----------------------------------------------------------------- Gary E. Samouris and Nida Edith Samson, individually and on behalf of all others similarly situated, Plaintiffs, v. ZF-TRW Automotive Holdings Corp., TRW Automotive U.S. LLC, American Honda Motor Co., Inc., and Toyota Motor Sales, U.S.A., Inc., Defendants, Case No. 2:19-cv-11215-MAG-EAS (E.D. Mich., April 26, 2019) is an action concerning defective airbag control units (ACUs) manufactured by Defendants. Airbags are a critical safety component in virtually every motor vehicle sold in the United States and throughout the world. Drivers and passengers reasonably expect that airbags will properly deploy if their vehicles are involved in an accident. When functioning properly, an airbag can mean the difference between life and death. ACUs are designed and manufactured to sense a vehicle crash, determine whether airbag deployment is necessary, and deploy appropriate airbags and other supplemental restraints where needed. The ACU contains an electronic component--an application specific integrated circuit ("ASIC")--which monitors signals from other crash sensors located in the vehicles subject to the lawsuit (Class Vehicles). If the ASIC fails, the ACU will not operate properly. According to the complaint, as a result of an electrical overstress ("EOS") condition that causes the malfunction of the ASIC in the ACUs manufactured by TRW (the "ACU Defect"), the airbags equipped in the Class Vehicles do not properly deploy during a crash. The ACU Defect exposes Plaintiffs and Class members to the serious and life-threatening safety risk that their Class Vehicle airbags could fail to deploy during an accident, resulting in injury or death. Numerous personal injury and wrongful death lawsuits have been filed against TRW and/or the Vehicle Manufacturers alleging that airbags failed to deploy in accidents as a result of the ACU Defect. Despite knowledge of the ACU Defect, TRW has continued to manufacture and sell the defective ACUs, resulting to numerous injuries and deaths. In addition, the Vehicle Manufacturers have continued to equip the Class Vehicles with airbag systems containing the ACU Defect and sell and lease the Class Vehicles, without disclosing the ACU Defect and its corresponding safety risks to Plaintiffs and Class members. Notwithstanding this knowledge, TRW continued selling defective ACUs and the Vehicle Manufacturers continued selling Class Vehicles equipped with airbag systems containing the ACU Defect, Defendants failed to disclose the existence of the ACU Defect to Plaintiffs and members of the Classes, and have not remedied the ACU Defect and/or compensated Plaintiffs or members of the Classes for this material defect, asserts the complaint. In addition, the Vehicle Manufacturer Defendants have not issued recalls for the Class Vehicles containing the ACU Defect. Rather, Defendants wrongfully and intentionally concealed the ACU Defect from Plaintiffs and members of the Classes. Plaintiffs purchased a 2012 Honda CR-V and a 2018 Toyota Tacoma for personal, family, or household purposes. Defendants design, manufacture, and sell automotive systems, modules, and components to automotive original equipment manufacturers, including airbag systems.[BN] The Plaintiff is represented by: David J. Shea, Esq. SHEA AIELLO, PLLC 26100 American Drive, 2nd Floor Southfield, MI 48034 Phone: (248) 354-0224 Email: david.shea@sadplaw.com - and - Joseph H. Meltzer, Esq. Melissa L. Troutner, Esq. Natalie Lesser, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Phone: (610) 667-7706 Fax: (610) 667-7056 Email: jmeltzer@ktmc.com mtroutner@ktmc.com nlesser@ktmc.com - and - James E. Cecchi, Esq. Caroline F. Bartlett, Esq. CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C. 5 Becker Farm Road Roseland, NJ 07068 Phone: (973) 994-1700 Email: jcecchi@carellabyrne.com cbartlett@carellabyrne.com - and - Paul J. Geller, Esq. Mark J. Dearman, Esq. ROBBINS GELLER RUDMAN & DOWD, LLP 120 East Palmetto Park Road, Suite 500 Boca Raton, FL 33432 Phone: (561) 750-3000 Fax: (561) 750-3364 Email: pgeller@rgrdlaw.com mdearman@rgrdlaw.com - and - Christopher A. Seeger, Esq. SEEGER WEISS LLP 55 Challenger Road, 6th Floor Ridgefield Park, NJ 07660 Email: cseeger@seegerweiss.com TWENTIETH CENTURY: Bid to Certify Class in TS Suit Continued ------------------------------------------------------------ The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on April 18, 2019, in the case entitled T.S., et al. v. Twentieth Century Fox Television, et al., Case No. 1:16−cv−08303 N.D. Ill.), relating to a hearing held before the Honorable Rebecca R. Pallmeyer. The minute entry states that: -- Plaintiffs' cross−motion for class certification is entered and continued for briefing; -- Response to be filed by or on June 18, 2019; -- reply to be filed by or on July 9, 2019; -- Motion for leave to file excess pages and for leave to file under seal are granted; -- Within seven days, the Plaintiff to provide documents relevant to May 6, 2019 depositions; -- Also within seven days, the Defendant to furnish information regarding schedules within the detention facility; and -- Status hearing set for May 9, 2019, is stricken and re−set to May 16, 2019, at 9:00 a.m.[CC] TYME TECHNOLOGIES: Kuznicki Law Announces Class Action Suits ------------------------------------------------------------ The securities litigation law firm of Kuznicki Law PLLC issues the following notice on behalf of shareholders of the following publicly traded companies. Shareholders who purchased shares in these companies during the dates listed below are encouraged to contact the firm regarding possible appointment as lead plaintiff and a preliminary estimate of their recoverable losses. If you wish to choose counsel to represent you and the class, you must apply to be appointed lead plaintiff and be selected by the Court. The lead plaintiff will direct the litigation and participate in important decisions including whether to accept a settlement for the class in the action. The lead plaintiff will be selected from among applicants claiming the largest loss from investment in the respective securities during the class periods. Members of the class will be represented by the lead plaintiff and counsel chosen by the lead plaintiff. No classes have yet been certified in the actions below. Appointment as lead plaintiff is not required to partake in any recovery. Tyme Technologies, Inc. (NASDAQCM: TYME) Investors Affected: March 14, 2018 - January 18, 2019 A class action has commenced on behalf of certain shareholders in Tyme Technologies, Inc. The filed complaint alleges that defendants made materially false and/or misleading statements and/or failed to disclose that: (i) Tyme had not adequately designed the Phase II Study to present reliable results on the efficacy of SM-88 on pancreatic cancer; (ii) Tyme had failed to include an appropriate control group in its open-label Phase II clinical trial for SM-88; (iii) the omission of an appropriate control group distorted the reliability of data showing the efficacy of SM-88 in the Phase II Study; and (iv) as a result, Tyme's public statements were materially false and misleading at all relevant times. Shareholders may find more information at: https://kseclaw.com/securities/tyme-technologies-inc/?wire=3 ProShares Short VIX Short-Term Futures (NYSEArca: SVXY) Investors Affected: Investors in ProShares Short VIX Short-Term Futures ETF pursuant to the May 15, 2017 Registration Statement and/or between May 15, 2017 and February 5, 2018 A class action has commenced on behalf of certain shareholders in ProShares Short VIX Short-Term Futures. According to the complaint in the Registration Statement and during the Class Period, defendants made false and misleading statements and/or failed to disclose adverse information regarding the risks of investing in the Fund. Specifically, the Registration Statement failed to disclose that the Fund was threatened with catastrophic losses as a result of the Fund's flawed design and the low-volatility environment and acute liquidity risks that existed during the Class Period. In addition, during the Class Period defendants made similar false and misleading statements in numerous financial reports and draft prospectuses and registration statements filed with the SEC. Alta Mesa Resources, Inc. (AMR) f/k/a Silver Run Acquisition Corporation II (NASDAQCM: AMR) Investors Affected: Purchasers of Silver Run II securities March 24, 2017-February 25, 2019 and investors who held Silver Run II Class A common stock as of January 22, 2018 and were entitled to vote concerning Silver Run II's acquisition of Alta Mesa and Kingfisher Midstream LLC A class action has commenced on behalf of certain shareholders in Alta Mesa Resources, Inc (AMR) f/k/a Silver Run Acquisition Corporation II. The filed complaint alleges that defendants made materially false and/or misleading statements and/or failed to disclose that: (1) Alta Mesa and Kingfisher did not possess "superior quality" and "[w]orld [c]lass" assets as compared to other operators in the oil and gas industry; (2) Alta Mesa faced significant operational setbacks; (3) several major oil producers had steered assets away from production in the region in which Alta Mesa operates; and (4) Kingfisher and Alta Mesa were not on track to achieve the earnings and production estimates provided in the Proxy and Defendants had no reasonable basis to believe and did not believe that Kingfisher and Alta Mesa would achieve these estimates. Mobile TeleSystems PJSC (NYSE: MBT) Investors Affected: March 19, 2014 - March 7, 2019 A class action has commenced on behalf of certain shareholders in Mobile TeleSystems PJSC. The filed complaint alleges that defendants made materially false and/or misleading statements and/or failed to disclose that: (1) MTS and its subsidiary were involved in a scheme to pay $420 million in bribes in Uzbekistan; (2) consequently, MTS knew or should have known it would be forced to pay substantial fines to the U.S. government after disclosing in 2014 that the U.S. Department of Justice and Securities and Exchange Commission were investigating its Uzbekistan operations; (3) MTS' level of cooperation with the U.S. government and remediation was lacking; (4) due to the aforementioned misconduct, MTS would be forced to pay approximately $850 million in criminal penalties to the U.S. government; and (5) as a result, defendants' public statements were materially false and/or misleading at all relevant times. Contact: Daniel Kuznicki, Esq. Kuznicki Law PLLC 445 Central Avenue, Suite 334 Cedarhurst, NY 11516 Phone: (347) 696-1134 Cell: (347) 690-0692 Fax: (347) 348-0967 Email: dk@kclasslaw.com [GN] U.S. TOBACCO COOPERATIVE: 4th Cir. Flips $24MM Settlement Approval ------------------------------------------------------------------ The United States Court of Appeals, Fourth Circuit, issued an Opinion affirming in part and reversing the District Court's judgment approving Class Settlement Agreement in the case captioned SHARP FARMS; ROBERT W. MAY; TUCKER FARMS INC.; WORTHINGTON FARMS, Inc., Objectors-Appellants, v. TERESA M. SPEAKS; TOBY SPEAKS; STAN SMITH; EDDIE BROWN; ROBERT POINDEXTER; MIKE MITCHELL; ROY L. COOK; ALEX SHUGART; H. RANDLE WOOD; ROBIN ROGERS; DANIEL LEE NELSON, Plaintiffs-Appellees, and U. S. TOBACCO COOPERATIVE INC., f/k/a Flue-Cured Tobacco Cooperative Stabilization Corporation, Defendant-Appellee. DAN LEWIS, Potential Intervenor-Appellant, v. TERESA M. SPEAKS; TOBY SPEAKS; STAN SMITH; EDDIE BROWN; ROBERT POINDEXTER; MIKE MITCHELL; ROY L. COOK; ALEX SHUGART; H. RANDLE WOOD; ROBIN ROGERS; DANIEL LEE NELSON, Plaintiffs-Appellees, and U. S. TOBACCO COOPERATIVE INC., f/k/a Flue-Cured Tobacco Cooperative Stabilization Corporation, Defendant-Appellee. Nos. 18-1316, 18-1325. (4th Cir.). Before this Court are the Objectors-Appellants Fisher-Lewis class members who objected to the Speaks settlement. This appeal of a class-action settlement concerns a longstanding dispute between U.S. Tobacco Cooperative, Inc., an agricultural cooperative of flue-cured tobacco growers in North Carolina, and a class of plaintiffs consisting of current and former Cooperative members. From its inception in 1946, the Cooperative administered a federal price-support program designed to stabilize tobacco prices for member growers through purchasing their unsold tobacco at a guaranteed minimum price and marketing the tobacco to buyers. With a mixed record of success, the price-support program ultimately came to an end in 2004, when Congress enacted the Fair and Equitable Tobacco Reform Act (FETRA). By this point, the Cooperative had accumulated a capital reserve fund of hundreds of millions of dollars generated from the tobacco the members delivered or the fee assessments they paid to the Cooperative as members participating in the price-support program. The plaintiffs (Speaks plaintiffs) filed a class-action complaint against the Cooperative, seeking a declaratory judgment, distribution of the reserve funds to members, and judicial dissolution of the Cooperative as an alternative form of relief. They argued that after Congress enacted FETRA and the price-support program ended, the Cooperative's primary purpose ceased to exist, and it should be forced to distribute the reserve funds and be judicially dissolved. The parties eventually mediated the case in May 2017 and moved for the district court to certify the class and approve their $24 million settlement as fair, reasonable, and adequate for the class members. The district court did so. The Objectors claim, at bottom, that they got a raw deal. They first contend that the district court abused its discretion in certifying the Speaks settlement class under Federal Rule of Civil Procedure 23(a), arguing that the Speaks class counsel and class representatives cannot and did not adequately protect their interests in this case. The Objectors also challenge the district court's final approval of the $24 million settlement as fair, reasonable, and adequate under Rule 23(e). Finally, they argue that the district court erred in denying certain Fisher-Lewis class members' attempts to opt out the entire Fisher-Lewis certified class from Speaks. Speaks Settlement Approval Under the terms of the settlement, the Cooperative will pay into the settlement fund $24 million less attorneys' fees, costs, and incentive awards, capped at $2 million over a five-year period to be held in escrow on behalf of the class. The final settlement class encompasses the following: all individuals, proprietorships, partnerships, corporations, and other entities that are or were shareholders and/or members of [the Cooperative] at any time during the Class Period [i.e., June 1, 1946, through the effective date of the settlement in 2018], without any exclusion, including any heirs, representatives, executors, powers-of-attorney, successors, assigns, or others purporting to act for or on their behalf with respect to the Cooperative and/or the Settled Claims. Adequacy of Class Counsel First, the Objectors contend that the district court abused its discretion in certifying the class because Speaks class counsel Shipman and Wright did not adequately and fairly represent the Fisher-Lewis class members who became members of the Speaks settlement class. The Objectors argue in particular that the district court erroneously refused to consider the Fisher-Lewis state court's findings that counsel in Speaks colluded to exclude Fisher-Lewisclass counsel from participating in the settlement mediation and to mislead the Fisher-Lewisclass members into believing that any Speaks settlement would not preclude the Fisher-Lewisclass claims. The Court agrees. In its order approving the settlement, the district court concluded that Speaks class counsel fully and adequately represents the settlement class primarily because counsel has over twenty-years experience litigating class actions and has expended significant resources investigating and pursuing the claims in this action. Addressing the collusion argument, the court stated that the Objectors essentially suggest that Judge Bullock was too blind to see collusion at the tip of his nose during the mediation, or that Judge Bullock was part of the collusion, arguments that the court rejected as insulting and baseless. The district court's reasoning in rejecting the Objectors' collusion argument rests on two flawed premises. First, the court appears to have regarded the allegations of collusion as an attack on the mediator himself and his integrity and intelligence. The extent of the district court's comments defending the mediator's character suggests that this mistaken assumption was a driving force in the court's rejection of the serious collusion allegations. Second, the district court's analysis erroneously assumes that the mediator had all the relevant information on the collusion allegations at the time he presided over and facilitated the mediation in May 2017. As an initial matter, and as counsel for the Speaks plaintiffs acknowledged at oral argument, the mediator did not have the benefit of the state court's January 2018 order extensively documenting what it deemed counsel's improper and unethical conduct, some of which allegedly occurred after the mediation, during the summer and fall of 2017. Without the state court's order, the mediator could not consider in his assessment the full extent of the collusion allegations and necessarily relied only on information that the parties conveyed before and during the mediation about events preceding the mediation. That the mediator was present during the settlement negotiations thus cannot provide the sole basis on which to reject the Objectors' charges of collusion. Even if the Court could look past the fact that the mediator could not assess the extensive state court findings at the time of the mediation, the record reveals little about the extent to which the mediator understood and evaluated the Fisher-Lewis class members' concerns about collusion. Unlike in the cases the Cooperative cites, for example, the mediator did not testify by affidavit or at the fairness hearing in this case. And the primary evidence the Cooperative marshals in support of its position consists of an email from May 10, the evening before the mediation, in which Cooperative counsel notified the mediator of the parallel proceedings, indicated that Fisher-Lewis counsel had sent a letter to Speaks class counsel voicing some concern over the upcoming mediation, and explained that neither Speaks class counsel nor Cooperative counsel shared those concerns. On this record, the Cooperative cannot successfully argue that the mediator's presence ensured that there was no collusion or other improper conduct during the settlement of this case. In approving the settlement, the district court acknowledged the state court's order but did not meaningfully grapple with the court's extensive findings or its conclusions that the Speaksparties had engaged in collusive conduct to the detriment of the Fisher-Lewis class members and violated Rules 4.1 and 4.2. Instead, the district court downplayed the state court's order, asserting that the state court did not have the benefit of the extensive record that this court has to assess the fairness, reasonableness, and adequacy of the proposed settlement. The district court also emphasized that the state court's order is a collateral interlocutory order that is not binding, and that the order includes no analysis of the merits of the underlying federal case, which is the most important factor in considering the fairness, reasonableness, and adequacy of the proposed settlement. Addressing the state court's finding that the class notice was misleading, the district court stated in a footnote that it disagrees without elaborating. The district court, in failing to engage sufficiently with the merits of the state court's findings, did not act as a fiduciary of the class and thus abused its discretion in certifying the Speaks settlement class under Rule 23(a). In arguing that the district court did not abuse its discretion, the Cooperative asserts that the state court's findings are not dispositive on collusion. As the Objectors point out, however, the issue here is not whether the district court was bound by the findings of collusion by the state court but whether the district court failed to require closer scrutiny especially given those findings and given its duty as a fiduciary to the absent class members. The Cooperative further argues that, in any event, the district court "expressly considered the state court's decision, properly found it both legally and factually deficient, and rightly declined to follow it. To the contrary, the district court's rejection of the state court's order consisted largely of conclusory statements and evinced little sustained evaluation of the serious charges of collusion. The Cooperative also challenges the state court's order on the merits, arguing that the order is misconceived in multiple respects. None of these asserted deficiencies, however, undermines our core conclusion that the district court improperly rejected the collusion argument based on the mere presence of the mediator and without adequately addressing the state court's findings. Under these circumstances, the Court holds that the district court abused its discretion in certifying the Speaks settlement class under Rule 23(a). Adequacy of Class Representation The Objectors also argue that the district court abused its discretion because the Speaks class representatives cannot adequately represent the class given certain conflicts of interest between the Speaks class representatives and the Fisher-Lewis class members. This argument also has merit. Under the adequacy requirement of Rule 23(a)(4), a district court may certify a class only if the class representative will fairly and adequately protect the interests of the class. The Objectors first contend that conflicts of interest exist between the Speaks class representatives and the Fisher-Lewis class members because the Fisher-Lewis members' interest in the Cooperative's reserve is tied and traceable to their patronage gains" while in the Speaks class all members are entitled to a portion of the reserve funds irrespective of whether they contributed to the reserve through their patronage. The Objectors thus argue that a conflict exists because the legal theory in the Speaks case is not tied to each member's patronage interest and would provide broader relief to the settlement class at the expense of the Fisher-Lewis class members with identifiable patronage interests in the reserve. The Objectors separately argue that a conflict exists because the members' legal claims are different. Unlike the Fisher-Lewisclass, the Speaks class seeks recovery based on two weak statutory claims, and these weaknesses, say the Objectors, prejudice the Fisher-Lewis class members given their much stronger claims. The Court agrees with the Objectors, and conclude that the district court abused its discretion in certifying the Speaks settlement class given the fundamental conflicts between the Speaks class representatives and the Fisher-Lewis class members. These conflicts stem from the Cooperative's structure, the manner in which the reserve was established, and the divergent legal theories in which the Fisher-Lewis class and the Speaks class ground their respective claims. This patronage interest in the reserve fund serves as the Fisher-Lewis class members' theory of their case. Their patronage resulted in profits for the Cooperative, they contend, and their corresponding patronage interest was unlawfully extinguished in violation of statutory cooperative legal principles as well as common law principles like breach of contract when the Cooperative undertook the membership purge in 2004-2005. The members' patronage interests in fact provided the basis on which the state court in Fisher-Lewis concluded that there were no conflicts of interest within the class. The Speaks class representatives, by contrast, represent a class consisting of all Cooperative members from 1946-2018 irrespective of whether the members produced any profits for the Cooperative—and thus irrespective of whether they contributed to the reserve fund. The Speaks settlement indeed proposes to distribute the reserve money to all members based merely on the number of pounds of tobacco each member marketed to the Cooperative and the number of years the member marketed and sold tobacco. The Cooperative suggests, and the district court found, that no conflict exists because both classes seek to recover excess reserves. But this reasoning obscures the key distinction between the two classes, the Fisher-Lewis class members have taken the position that the Speaks class can claim no legal entitlement or recognized interest in any excess reserves because they have no earned patronage interest in the reserve based on any profit contribution. The Fisher-Lewis class members indeed assert a fundamentally different interest and a different injury from the Speaks class representatives: they claim an interest in the reserve tied specifically to the profits they produced for the Cooperative, and an injury tied directly to the deprivation of their patronage interest as a result of the 2004-2005 membership purge. A settlement involving all Cooperative members would vitiate this interest through awarding to noncontributing members a portion of the reserve funds that the Fisher-Lewis class members created. That the Fisher-Lewis class members and the Speaks representatives are pursuing different legal claims only underscores the conflict of interest between the two. The different claims of the Speaks representatives and the Fisher-Lewis class members reflect their different theories of the case, and these theories are in tension. The Speaks class members are pursuing claims for voluntary distribution or, alternatively, dissolution precisely because unlike the Fisher-Lewis class members they can likely claim no legal entitlement to the reserve funds on common law and statutory theories that are grounded in the notion that members' patronage gives them an interest in all profit that the Cooperative has kept as reserves and that the Cooperative has deprived them of this interest. The Court holds that the district court abused its discretion in certifying the Speaks settlement class in this respect as well. Fisher-Lewis Classwide Opt-Out The Objectors contend that the district court abused its discretion when it certified the class after rejecting the attempts of certain Fisher-Lewis class representatives to opt out the entire Fisher-Lewis class from this case. Finding no merit to this argument, we affirm the district court's denial of the class opt-out. The Objectors cite no authority for the proposition that the Fisher-Lewis members' status as a certified class creates an exception to the settled rule that the Due Process Clause reposes only in individual class members. the right to intelligently and individually choose whether to continue in a suit as class members. Even though the Fisher-Lewis class is certified, the policy concerns that militate against permitting group opt-outs in the putative class context are present here as well allowing representatives to opt out a group of class members would deprive those members of their due-process right to make that choice for themselves and would completely gut the class action mechanism as objectors could dismantle any class action by removing groups of plaintiffs. In the absence of any authority or policy justification, we see no basis on which to conclude that the representatives of the Fisher-Lewis certified class can opt out of the Speaks case on behalf of the absent Fisher-Lewis class members. As the Cooperative notes, moreover, the Objectors' position presents an unworkable scenario because four of the Fisher-Lewis class representatives declined to opt out of Speaks. Certain Fisher-Lewis representatives thus attempted to opt out the entire Fisher-Lewis class from Speaks even while other representatives elected to remain in Speaks. The district court did not abuse its discretion in rejecting the Fisher-Lewis representatives' efforts to opt out the entire Fisher-Lewis class from this case. Final Settlement Approval Under Rule 23(e) The Objectors challenge the district court's approval of the $24 million Speaks class settlement as fair, reasonable, and adequate. This Court affords the district court's decision substantial deference, reversing only 'upon a clear showing that the district court abused its discretion in approving the settlement.' The Court agrees with the Objectors that the district court abused its discretion under these circumstances. The Court therefore also reverse that part of the district court's order approving the Speaks class settlement as fair, reasonable, and adequate. In evaluating the adequacy of the $24 million settlement, the district court concluded that the Speaks claims were weak for the following reasons. First, the Speaks plaintiffs provided no authority for the proposition that Section 55A-13-02(c) a statute authorizing distributions requires or forces the Cooperative to make distributions to members. Second, FETRA does not provide the plaintiffs with a basis for relief because the statute's plain language makes clear that the Cooperative was entitled to retain the proceeds from the sale of the loan tobacco" and because the statute does not create a private right of action. Third, without statutory or contractual entitlement to relief, plaintiffs' claim concerning unreasonable reserves amounts to a claim that the Cooperative's Board breached their fiduciary duties in failing to distribute reserves. The plaintiffs have not shown that a fiduciary relationship existed between them and the Board, the court indicated, but even if they could make such a showing, the claim would fall within North Carolina's business-judgment rule. In concluding that the $24 million settlement was adequate, the district court also indicated that the Cooperative's defenses were strong, noting in particular that the statute of limitations is a substantial barrier to large swaths of plaintiffs' claims. Again, this reasoning applies with less force to the Fisher-Lewis claims. Those plaintiffs filed suit in early 2005, shortly after being notified in late 2004 of the Cooperative's plan to terminate most of its members and retain their accrued patronage interests. The claims indeed arose precisely because of the Cooperative's 2004-2005 membership purge the moment when the expelled members lost their interest and the reserve increased to an unreasonable $365,000 per member -- and the claims substantially survived a motion to dismiss. The district court, in approving the $24 million settlement as reasonable, also relied on several faulty premises concerning the proposed $76 million settlement. First, the court asserted that the state court did not find that the proposed settlement was unreasonable but rather denied preliminary approval without prejudice based on certain plaintiffs' objection that discovery on the merits of the settlement was necessary. Second, the district court, relying on Federal Rule of Evidence 408 and our decision in Fiberglass Insulators, Inc. v. Dupuy, 856 F.2d 652 (4th Cir. 1988), concluded that a settlement offer does not reflect the relative strength of the plaintiffs' claims on the merits, and that such an offer cannot establish the Cooperative's liability at trial. But the $76 million figure was not merely a settlement offer made in the course of the parties' negotiations. The figure instead was the basis on which the court, after briefing and argument, denied preliminary approval for the settlement as not fair, reasonable, and adequate for class members. Neither the district court nor the Cooperative points to any authority suggesting that this Court cannot consider the state court's denial in our review of the Speaks settlement. Third, the district court deemed the $76 million proposed settlement from 2005-2006 outdated and irrelevant and thus an improper benchmark by which to gauge the reasonableness of the Speaks settlement both because the Cooperative's business strategy from 2005 to 2017 has proven reasonable and beneficial to members and because the litigation risks have substantially changed in the Cooperative's favor since 2005. Under these circumstances, the Court concludes that the district court abused its discretion in approving the $24 million settlement as fair, reasonable, and adequate. Affirmed in part, reversed and remanded. A full-text copy of the Fourth Circuit's February 28, 2019 Opinion is available at https://tinyurl.com/yyejae2l from Leagle.com. ARGUED: Charles Alan Runyan -- arunyan@runyanplatte.com -- RUNYAN & PLATTE, Beaufort, South Carolina, for Appellants. Gary K. Shipman, SHIPMAN & WRIGHT, LLP, for Appellees Teresa Speaks, et al. Derek L. Shaffer -- derekshaffer@quinnemanuel.com -- QUINN EMANUEL URQUHART & SULLIVAN, LLP, Washington, D.C., for Appellee United States Tobacco Cooperative Inc. ON BRIEF: Andrew S. Platte, RUNYAN & PLATTE, for Appellants Sharp Farms, Robert W. May, Tucker Farms, Inc., and Worthington Farms, Inc. John L. Coble -- jlc@mwglaw.com -- MARSHALL, WILLIAMS & GORHAM, LLP, Wilmington, North Carolina, for Appellant Dan Lewis. William G. Wright, SHIPMAN & WRIGHT, LLP. Namon Leo Daughtry, DAUGHTRY, WOODARD, LAWRENCE & STARLING, for Appellees Teresa Speaks, et al. Lee M. Whitman -- lwhitman@wyrick.com -- Tobias S. Hampson -- -- WYRICK ROBBINS, Raleigh, North Carolina; Jonathan Cooper -- jonathancooper@quinnemanuel.com -- QUINN EMANUEL URQUHART & SULLIVAN, LLP, Washington, D.C., for Appellee United States Tobacco Cooperative Inc. UNIFUND CCR: Goldberg Sues over Debt Collection Practices --------------------------------------------------------- BASHEVA GOLDBERG, individually and on behalf of all others similarly situated, Plaintiff v. UNIFUND CCR, LLC; MULLOOY, JEFFREY; ROONEY & FLYNN, LLP; and JOHN DOES 1-25, Defendants, Case No. 7:19-CV-02826-CS (S.D.N.Y., March 29, 2019) seeks to stop the Defendants' unfair and unconscionable means to collect a debt. The case is assigned to Judge Cathy Seibel. Unifund CCR Partners, Inc. purchases, sells, and manages under-performing and distressed consumer receivables in the United States. It offers debt sales of distressed debts, such as future home liens(guaranteed debtor home ownership), future garnishments(guaranteed debtor employment), judgments and liens, and litigation-ready accounts for law firms, distressed asset investors, collection agencies, financial institutions, real estate/mortgage firms, resellers, and title companies. [BN] The Plaintiff is represented by: Dov Micahel Mittelman, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Telephone: (201) 282-6500 E-mail: mittelmandov@yahoo.com UNITED BEHAVIORAL: Ct. Suggests Denial of Bid to Dismiss ERISA Suit ------------------------------------------------------------------- Magistrate Judge John V. Acosta of the United States District Court for the Northern District of California issued a Report and Recommendation denying Defendant's Motion to Dismiss in the case captioned DAVID WIT, et al., Plaintiffs, v. UNITED BEHAVIORAL HEALTH, Defendant, GARY ALEXANDER, et al., Plaintiffs, v. UNITED BEHAVIORAL HEALTH, Defendant. Case No. 14-cv-02346-JCS, Related Case No. 14-cv-05337 JCS. (N.D. Cal.). The Court conducted a 10-day bench trial and now makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). Defendant United Behavioral Health (UBH), which also operates as OptumHealth Behavioral Solutions, administers mental health and substance use disorder benefits for commercial welfare benefit plans. In that capacity, it has developed Level of Care Guidelines and Coverage Determination Guidelines (Guidelines) that it uses for making coverage determinations. Plaintiffs in these related class actions assert claims under the Employee Retirement Income Security Act of 1974 (ERISA), alleging that they were improperly denied benefits for treatment of mental health and substance use disorders because UBH's Guidelines do not comply with the terms of their insurance plans and/or state law. The Plaintiffs assert two claims: 1) breach of fiduciary duty (Breach of Fiduciary Duty Claim) and 2) arbitrary and capricious denial of benefits (Denial of Benefits Claim). Plaintiffs assert the Breach of Fiduciary Duty Claim under 29 U.S.C. Section 1132(a)(1)(B) (Count I in all of the operative complaints) and, to the extent the injunctive relief Plaintiffs seek is unavailable under that section, they assert the claim under 29 U.S.C. Section 1132(a)(3)(A) (Count III in all of the operative complaints). Whether the UBH Guidelines Adhere to Generally Accepted Standards of Care Sources of Generally Accepted Standards of Care In the context of this case, generally accepted standards of care are the standards that have achieved widespread acceptance among behavioral health professionals. There is no single source of generally accepted standards of care. Rather, they can be gleaned from multiple sources, including peer-reviewed studies in academic journals, consensus guidelines from professional organizations, and guidelines and materials distributed by government agencies. In this case, expert witnesses for both Plaintiffs and UBH offered opinions about generally accepted standards of care. While they relied on a variety of sources in support of their opinions, the resources that all of the experts agreed reflect generally accepted standards of care include the following: 1) the American Society of Addiction Medicine Criteria (ASAM Criteria); 2) the American Association of Community Psychiatrist's (AACP) Level of Care Utilization System (LOCUS) 3) the Child and Adolescent Level of Care Utilization System (CALOCUS) developed by AACP and the American Academy of Child and Adolescent Psychiatry (AACAP), and the Child and Adolescent Service Intensity Instrument (CASII), which was developed by AACAP in 2001 as a refinement of CALOCUS and 4) the Medicare benefit policy manual issued by the Centers for Medicare and Medicaid Services (CMS Manual). Other sources that the parties' witnesses relied upon and which the Court finds reflect generally accepted standards of care are: 1) the APA Practice Guidelines for the Treatment of Patients with Substance Use Disorders, Second Edition; 2) the APA Practice Guidelines for the Treatment of Patients with Major Depressive Disorder; and 3) AACAP's Principles of Care for Treatment of Children and Adolescents with Mental Illnesses in Residential Treatment Centers. Generally Accepted Standards of Care Relevant to the Guidelines Challenged in this Action a. It is a generally accepted standard of care that effective treatment requires treatment of the individual's underlying condition and is not limited to alleviation of the individual's current symptoms Many mental health and substance use disorders are long-term and chronic. While current symptoms are typically related to a patient's chronic condition, it is generally accepted in the behavioral health community that effective treatment of individuals with mental health or substance use disorders is not limited to the alleviation of the current symptoms. Rather, effective treatment requires treatment of the chronic underlying condition as well. Thus, ASAM recommends that practitioners develop an individualized plan [that is] based on a comprehensive biopsychosocial assessment of the patient" and explains that "[a]ddiction treatment services have as their goal not simply stabilizing the patient's condition but altering the course of the patient's disease toward wellness. Likewise, Dr. Plakun testified that mental health treatment that only manages crises is not effective, as "you wind up in a recipe that is sadly all too familiar in the world these days; that is, of people going in and out of hospital, rotating back and forth between trying to make outpatient treatment work, failing in it, having chronic ongoing crises that need to be managed, winding up in an inpatient unit. Analogizing a chronic mental health condition to a pot of water over a flame, Dr. Plakun testified, it's optimal to try to find a way to turn the flame down and not simply feed the recurrent loop of crisis. b. It is a generally accepted standard of care that effective treatment requires treatment of co-occuring behavioral health disorders and/or medical conditions in a coordinated manner that considers the interactions of the disorders and conditions and their implications for determining the appropriate level of care Many individuals with a behavioral health diagnosis have multiple, co-occurring disorders. Similarly, the presence of a co-occurring medical condition is an aggravating factor that may necessitate a more intensive level of care for the patient to be effectively treated. The ASAM Criteria and the LOCUS both reflect the importance of a comprehensive approach to treating co-occurring disorders in determining the appropriate level of care. For example, ASAM Dimension 2 assesses the need for physical health services, including whether there are needs for acute stabilization and/or ongoing disease management for a chronic physical health condition. ASAM Dimension 3 assesses the need for mental health services and specifically references mental health conditions, including trauma-related issues and conditions such as posttraumatic stress, cognitive conditions and developmental disorders, and substance related mental health conditions. c. It is a generally accepted standard of care that patients should receive treatment for mental health and substance use disorders at the least intensive and restrictive level of care that is safe and effective In order to treat patients with mental health or substance use disorders effectively, it is important for providers to "match" them to the appropriate level of care. The evidence presented at trial supports the conclusion that under generally accepted standards, the driving factors in determining the appropriate treatment level should be safety and effectiveness; however, where the clinician determines that more than one service level will meet both of these requirements, the least intensive and/or restrictive setting should be selected. The evidence at trial did not support the conclusion that under generally accepted standards of care, there is a balancing of effectiveness against the restrictiveness or intensity factor; in other words, the fact that a lower level of care is less restrictive or intensive does not justify selecting that level if it is also expected to be less effective. Placement in a less restrictive environment is appropriate only if it is likely to be safe and just as effective as treatment at a higher level of care in addressing a patient's overall condition, including underlying and co-occurring conditions. d. It is a generally accepted standard of care that when there is ambiguity as to the appropriate level of care, the practitioner should err on the side of caution by placing the patient in a higher level of care Research has demonstrated that patients with mental health and substance use disorders who receive treatment at a lower level of care than is clinically appropriate face worse outcomes than those who are treated at the appropriate level of care. On the other hand, there is no research that establishes that placement at a higher level of care than is appropriate results in an increase in adverse outcomes. Consequently, it is a generally accepted standard of care that where there is uncertainty as to the likely effectiveness of different proposed levels of care, practitioners treating patients for mental health and substance use disorders should exercise caution by selecting the higher level of service intensity. e. It is a generally accepted standard of care that effective treatment of mental health and substance use disorders includes services needed to maintain functioning or prevent deterioration While effective treatment may result in improvement in the patient's level of functioning, it is well-established that effective treatment also includes treatment aimed at preventing relapse or deterioration of the patient's condition and maintaining the patient's level of functioning. Thus, for example, the CMS Manual provides that services satisfy the reasonable expectation of improvement" requirement for Medicare coverage where there is a reasonable expectation that if treatment services were withdrawn the patient's condition would deteriorate, relapse further, or require hospitalization. The CMS Manual explains, for many psychiatric patients, particularly those with long-term, chronic conditions, control of symptoms and maintenance of a functional level to avoid further deterioration or hospitalization is an acceptable expectation of improvement. Similarly, ASAM cautions that treatment successes such as a period of abstinence or improvement in function sometimes are misinterpreted as indicating that treatment is completed. Instead, treatment of substance use disorders should continue so long as there is a risk of relapse. f. It is a generally accepted standard of care that the appropriate duration of treatment for behavioral health disorders is based on the individual needs of the patient; there is no specific limit on the duration of such treatment As the CMS Manual explains, there are no specific limits on the length of time that services may be covered. Rather, in determining whether to continue treatment, practitioners consider such factors as the nature of the illness, prior history, the goals of treatment, and the patient's response. g. It is a generally accepted standard of care that the unique needs of children and adolescents must be taken into account when making level of care decisions involving their treatment for mental health or substance use disorders One of the primary differences between adults, on the one hand, and children and adolescents, on the other, is that children and adolescents are not fully developed, in the psychiatric sense. Clinicians recognize that a child or adolescent's level of development is an important consideration in making level of care determinations. One of the ways practitioners take into account the developmental level of a child or adolescent in making treatment decisions is by relaxing the threshold requirements for admission and continued service at a given level of care. Thus, under the ASAM Criteria, placement at a given level of care might be appropriate for a child or adolescent with a lower level of severity in Dimension 1 than would be required to warrant the same placement for an adult. Similarly, the ASAM Criteria apply a more lenient standard to children and adolescents by not requiring a showing in as many dimensions as is required for adults to warrant the same level of care. For example, for an adult to meet criteria for level 3.1 residential treatment, the patient must meet specifications in each of the six dimensions, whereas an adolescent need only meet specifications in at least two of the six dimensions. As a corollary of these more lenient standards, children and adolescents are likely to need longer duration of treatment than adults. h. It is a generally accepted standard of care that the determination of the appropriate level of care for patients with mental health and/or substance use disorders should be made on the basis of a multidimensional assessment that takes into account a wide variety of information about the patient Individuals with mental and substance use disorders can be viewed as suffering from biopsychosocial illnesses that, to varying degrees, have biological and medical, psychological and psychiatric, and sociocultural origins and clinical features. Consequently, except in acute situations that require hospitalization, where safety alone may necessitate the highest level of care, decisions about the level of care at which a patient should receive treatment should be made based upon a holistic, biopsychosocial assessment that involves consideration of multiple dimensions. Under the ASAM Criteria, for example, the six dimensions that clinicians should consider are as follows: 1) Acute Intoxication and/or Withdrawal Potential 2) Biomedical Conditions and Complications 3) Emotional, Behavioral, or Cognitive Conditions and Complications; 4) Readiness to Change 5) Relapse, Continued Use, or Continued Problem Potential and 6) Recovery/Living Environment. These criteria are not rigid requirements for making level of care determinations. Instead, each of the six dimensions is assessed independently and receives its own risk rating. These scores are then combined, so that lower scores in one dimension can be offset by higher scores in another. Further, ASAM instructs that cross-dimensional interactions should be considered, as these may increase or decrease the level of risk. LOCUS has a similar set of dimensions, instructing clinicians to consider: (1) Risk of Harm, (2) Functional Status, (3) Medical, Addictive, and Psychiatric Co-Morbidity, (4) Recovery Environment, (5) Treatment and Recovery History, and (6) Engagement and Recovery Status. As is the case under the ASAM Criteria, placements using LOCUS are based on consideration of all of the dimensions, and a low score in one dimension may be offset by a higher score in another, with the result that different combinations of factors within the LOCUS dimensions may point toward the same placement determination. Whether UBH Guidelines are Consistent with Generally Accepted Standards of Care a. Whether UBH Guidelines deviate from generally accepted standards of care by placing excessive emphasis on acuity and crisis stabilization Having reviewed all of the versions of the Guidelines that Plaintiffs challenge in this case and considered the testimony of the witnesses addressing the meaning of the Guidelines, the Court finds, by a preponderance of the evidence, that in every version of the Guidelines in the class period, and at every level of care that is at issue in this case, there is an excessive emphasis on addressing acute symptoms and stabilizing crises while ignoring the effective treatment of members' underlying conditions. While the particular form this focus on acuity takes varies somewhat between the versions, in each version of the Guidelines at issue in this case the defect is pervasive and results in a significantly narrower scope of coverage than is consistent with generally accepted standards of care. b. Whether UBH Guidelines deviate from generally accepted standards of care by failing to address the effective treatment of co-occurring conditions UBH witnesses testified that the Guidelines are consistent with generally accepted standards of care with respect to treatment of co-occurring conditions because they instruct that a member should be placed at a level of care where the member's current condition can be treated both safely and effectively, and the term current condition encompasses co-occurring conditions. That testimony was not credible because the plain language of the Guidelines supports a contrary conclusion; instead, the Court finds that these witnesses were simply offering post hoc rationalizations for Guidelines that transparently fail to provide for the effective treatment of co-occurring conditions. This is particularly obvious in the 2015 through 2017 versions of the Guidelines, which contain a list of requirements for admission in the Common Criteria that uses different words to describe the treatment of the member's current condition and the member's co-occurring conditions. In particular, while the list requires that a member's current condition can be safely, efficiently, and effectively assessed and/or treated in the proposed level of care, the very next requirement is that co-occurring behavioral health and medical conditions can be safely managed. c. Whether UBH Guidelines deviate from generally accepted standards of care by failing to err on the side of caution in favor of higher levels of care when there is ambiguity and pushing patients to lower levels of care where such a transition is safe even if the lower level of care is likely to be less effective It is a generally accepted standard of care that patients should be placed at the least restrictive level of care that is both safe and effective and that practitioners should err on the side of caution when there is uncertainty by placing patients at the higher level of care. Further, the fact that a lower level of care may be less restrictive does not justify moving the patient to that level of care if it is also likely to be less effective in treating the patient's overall condition including the underlying condition and any co-occurring conditions even if movement to the lower level of care may be safe. UBH's Guidelines do not adhere to these principles. Instead, they actively seek to move patients to the least restrictive level of care at which they can be safely treated, even if a lower level of care may be less effective for that patient. d. Whether UBH Guidelines deviate from generally accepted standards of care by precluding coverage for treatment to maintain level of function The Court does not find credible the testimony offered by Dr. Martorana that the Improvement Criteria set forth two separate definitions of improvement in the sections that were eventually numbered Under this interpretation, only the first definition (found in Par. 1.8.1) measures improvement with reference to acute symptoms whereas the second (alternative) definition (found in paragrpah 1.8.2) defines improvement with reference to the likelihood of deterioration in the member's overall condition. In support of this interpretation, UBH points to the last sentence of paragraph 1.8.2, which instructs that improvement must also be understood within the broader framework of the member's recovery and/or resiliency goals. Yet this interpretation is not consistent with the modifier in this context" in paragraph 1.8.2. The most reasonable interpretation of this language is that it refers to the preceding sentence, found in paragraph 1.8.1 in the later versions of the Guidelines, which states that improvement is indicated by the reduction or control of the acute symptoms that necessitated treatment in a level of care. That reading is also consistent with the Guidelines as whole, which repeatedly emphasize that treatment must be aimed at reduction or control of acute signs and symptoms. The last sentence of paragraph 1.8.2, instructing clinicians that improvement must also be understood within the broader framework of the member's recovery, resiliency and wellbeing merely pays lip service to generally accepted standards of care without offering any concrete guideline for incorporating them into the Improvement Criteria. The use of the word also in that sentence further makes clear that the sentence is merely an add-on that is not intended modify the requirements that precede it in the Improvement Criteria provision. In sum, the Court concludes that the Improvement Criteria provision in the UBH Guidelines for all versions of the Guidelines that are at issue in this case set forth a unified standard that is inconsistent with generally accepted standards of care. e. Whether UBH Guidelines deviate from generally accepted standards of care by precluding coverage based on lack of motivation Plaintiffs contend UBH' Guidelines deviate from generally accepted standards of care by requiring discharge as soon as a patient becomes unwilling or unable to participate in treatment. The Court finds that the Guidelines for 2011 through 2013 are consistent with generally accepted standards of care with respect to consideration of a patient's motivation in determining the appropriate level of care but that the Guidelines for 2014 through 2017 deviate from those standards. The parties' experts appear to be in agreement that for all levels of care that are at issue in this case, it is not appropriate under generally accepted standards of care to expect patients to be motivated to participate when they initially seek treatment; instead, there should be attempts to motivate a patient to participate in treatment before treatment at that level of care is discontinued. f. Whether UBH Guidelines deviate from generally accepted standards of care by failing to address the unique needs of children and adolescents One of the most troubling aspects of UBH's Guidelines is their failure to address in any meaningful way the different standards that apply to children and adolescents with respect to the treatment of mental health and substance use disorders. Throughout the Class Period, UBH failed to adopt separate level-of-care criteria tailored to the unique needs of children and adolescents. Nor do the Guidelines instruct decision-makers to apply the criteria contained in the Guidelines differently when the member is a child or adolescent. While the clinical Best Practices provisions of the Guidelines contain specific things that are very pertinent to children and adolescents, these provisions are aimed at treatment providers rather than UBH staff who make coverage determinations. The criteria in the Guidelines that must be satisfied to obtain coverage, that is, the actual rules that govern coverage determinations, make no distinctions based on the unique needs of children and adolescents. In fact, as Dr. Triana testified, UBH has never adopted any special set of rules for children and adolescents. g. Whether UBH deviates from generally accepted standards of care by using an overly broad definition of "custodial care" in its Guidelines, coupled with an overly narrow definition of "active" treatment and "improvement" At trial, a UBH witness testified that the definition of custodial care used in the Guidelines was based on custodial care exclusions in class members' plans. A review of the custodial care definitions in the plans of the Claim Sample reflects that 25 members of the Claim Sample had benefit plans that used the three-part definition of custodial care that UBH began using in 2015 in its Custodial Care CDGs and in its residential treatment LOCGs. The court has reviewed the Plans of these Claim Sample members, however, and does not find that any of them include the overly restrictive definitions of active treatment and improvement that significantly expand the concept of custodial care in UBH's CDGs and LOCGs. Further, even if the inclusion of this language in some class members' Plans might limit coverage for those class members to exclude even some services that are consistent with generally accepted standards of care a question the Court does not address here it does not justify the application of standards that do not reflect generally accepted standards of care to class members whose plans do not contain this language. h. Whether UBH Guidelines deviate from generally accepted standards of care by imposing mandatory prerequisites rather than a multidimensional approach Decisions about the level of care at which a patient should receive treatment must be multi-dimensional, taking into account a wide variety of information about the patient and allowing clinicians to weigh the dimensions against one another. Plaintiffs contend the very structure of UBH's Guidelines, containing a list of Common Criteria that are mandatory, is inconsistent with the holistic approach that is required under generally accepted standards of care. While a list of required criteria does not necessarily deviate from generally accepted standards of care, UBH's Guidelines are nonetheless flawed to the extent that they instruct clinicians to collect a wide array of information under their Best Practices provisions but do not allow for adequate consideration of this information in the rules and requirements that govern coverage determinations. This flaw results in many of the deviations from generally accepted standards of care that are discussed above. i. Whether UBH Guidelines are Consistent With ASAM ASAM is a recognized source of generally accepted standards of care and reflects, inter alia, the following generally accepted standards of care: 1) treatment should not be limited to crisis stabilization and the treatment of acute presenting symptoms but rather, should be aimed at providing effective treatment of the patient's overall condition, including chronic and co-occurring medical and behavioral health conditions 2) patients should treated at the least restrictive level of care that is both safe and effective and should be moved to a lower level of care only where the lower level is likely to be safe and just as effective as treatment at the higher level of care in addressing a patient's overall and co-occurring conditions 3) clinicians should err on the side of caution by placing the patient in a higher level of care when there is ambiguity or uncertainty as to the appropriate level of care 4) treatment services should be provided to maintain functioning or prevent deterioration 5) determination of the appropriate level of care must take into account the unique needs of children and adolescents and 6) placement determinations should be based on a holistic, multidimensional approach that allows a wide variety of factors to be taken into account and weighed against one another. UBH's Guidelines deviate from these standards in a multitude of ways, as set forth above. This has been the case throughout the Class Period, including before and after the 2013 publication of the ASAM third edition. Indeed, in an internal UBH email exchange in 2012 with the subject line Use of ASAM criteria poll, one of UBH's regional medical directors opined that the ASAM Criteria usually will result in more authorization as they are more subjective and broader than our LOCG/CDGs. j. Whether UBH Guidelines Complied With State Laws Illinois Effective August 18, 2011, Illinois law mandated that all medical necessity determinations for substance use disorders shall be made in accordance with appropriate patient placement criteria established by the American Society of Addiction Medicine. In 2015, Illinois amended the provision that contained this requirement by adding the following sentence: No additional criteria may be used to make medical necessity determinations for substance use disorders. The Court finds that the plain language of the original provision required that UBH use the ASAM Criteria rather than its own Guidelines to make coverage determinations for treatment of substance abuse disorders. To the extent that the Illinois statute as originally enacted was in any way unclear, the circumstances surrounding the amendment of the provision in 2015 support the conclusion that the amendment was meant to clarify rather than modify the original provision. It is particularly significant that the 2015 amendment merely adds a sentence; it does not change the language used with respect to the actual requirement that ASAM Criteria must be used. Further, the only mention of the provision in the transcript of the Illinois Senate session in which the bill was addressed was a passing reference describing it as a provision that specifies that ASAM Criteria are to be used for making medical necessity determinations. This reference was made in the context of a discussion of an unrelated issue and there was no suggestion that the ASAM requirement was new. Nor has the Court found anything in the legislative history suggesting that the amendment was intended to modify the original ASAM requirement. UBH did not start using the ASAM Criteria for Illinois substance use disorder claims until January 2016. Because it was required to use ASAM Criteria to make medical necessity determinations for claims governed by Illinois law as of August 18, 2011, its use of its own Guidelines as to those claims violated Illinois law. Further, even if the original 2011 version of the law permitted UBH to use its own Guidelines so long as they were consistent with the ASAM Criteria, at least until the law was amended in 2015, UBH's Guidelines did not comply with Illinois law because they were not consistent with ASAM Criteria, as discussed above. Connecticut Connecticut has required insurers to use the ASAM Criteria, or a set of criteria that UBH demonstrates to the Insurance Department is consistent with the ASAM Criteria, since October 1, 2013. UBH concedes that it has never used the ASAM Criteria in Connecticut. To establish compliance with Connecticut law, UBH points to the crosswalks it submitted to Connecticut regulators in 2013 and 2015. The Court finds that UBH has failed to comply with Connecticut law throughout the class period because its Guidelines are not consistent with" the ASAM Criteria for the reasons discussed above. Moreover, in the crosswalks UBH submitted to Connecticut regulators in 2013 and 2015, it materially mischaracterized the UBH Guidelines by stating that the criteria from all 3 ASAM levels [3.1, 3.3 and 3.5] are included in the admission criteria for Residential Rehabilitation. At the time these statements were made to Connecticut regulators, UBH knew them to be false, as reflected in the Shulman Report, discussed above. Rhode Island Since July 10, 2015, Rhode Island has required that payors such as UBH rely upon the criteria of the American Society of Addiction Medicine when developing coverage for levels of care for substance-use disorder treatment. While the law does not preclude UBH from developing its own guidelines to make coverage determinations, it requires that those guidelines must be consistent with ASAM Criteria; merely listing ASAM as a reference or borrowing a definition is not sufficient to meet this requirement. For the reasons discussed above, UBH's Guidelines are not consistent with ASAM Criteria and therefore UBH has failed to comply with Rhode Island law. Texas For the entire class period, insurance companies were required to apply criteria issued by the Texas Department of Insurance (TDI Criteria or TCADA Guidelines) in making medical necessity determinations with respect to claims for substance use disorder treatment when an individual's plan was governed by Texas law and treatment was sought from a provider or facility in Texas. Throughout the class period, UBH's Guideline Applicability Tool, used by UBH's Care Advocates and Peer Reviewers to determine which guidelines to apply to a member's benefit request, consistently shows that Texas guidelines were to be applied to coverage requests for substance use disorder treatment in Texas under plans governed by Texas law. In addition, three UBH witnesses testified that throughout the class period UBH has used TDI Criteria to make coverage determinations with respect to claims governed by Texas law. CONCLUSIONS OF LAW Breach of Fiduciary Duty Claim Plaintiffs bring their Breach of Fiduciary Duty Claim under 29 U.S.C. Sections 1132(a)(1)(B), which allows participants of ERISA plans to bring a civil action to enforce their rights under the terms of the plan, or to clarify [their] rights to future benefits under the terms of the plan and under 29 U.S.C. Section 1132(a)(3)(A), which allows ERISA participants to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan. As stated above, the parties have stipulated that all of the named Plaintiffs were participants in plans governed by ERISA at the time of their noncoverage determination. Therefore, Plaintiffs are participants within the meaning of these sections. UBH was a plan fiduciary with respect to Plaintiffs' Plans by virtue of its designation as administrator of mental health and substance use benefits under their Plans. Further, Plaintiffs' Plans delegated discretionary authority to UBH to interpret and apply plan terms, and UBH exercises that authority when it makes coverage determinations and more broadly, when it adopts Guidelines to standardize its coverage determinations and to ensure that those determinations are consistent with generally accepted standards of care. Thus, when it adopts and applies its Guidelines to coverage determinations, UBH is required to act in a manner that is consistent with the fiduciary duties set forth above, that is, the duty of loyalty, the duty of due care and the duty to comply with plan terms. The evidence introduced at trial supports the conclusion that significant skepticism is warranted in determining whether UBH abused its discretion when it adopted the Guidelines that are challenged in this case. First, the evidence shows that UBH had a structural conflict of interest throughout the class period because a large portion of its revenues came from fully insured plans. Moreover, the evidence shows that even as to the self-funded plans, UBH felt pressure to keep benefit expenses down so that it could offer competitive rates to employers. Second, regardless of whether the financial incentive to keep benefit expenses down was stronger with respect to the fully insured plans or the self-funded plans, the conflict of interest affected all members equally, regardless of which type of plan they were insured under, because UBH used a single set of Guidelines to make coverage determinations. Third, UBH did not ensure that the internal process it set up for adopting and revising the Guidelines insulated the individuals who developed the Guidelines from financial considerations. To the contrary, UBH included administrators from its Finance and Affordability Departments on the committees that ultimately had to approve the Guidelines. Further, as to those individuals who were involved in the Guideline development process who were not in those Departments, such as Mr. Niewenhous, UBH made sure that on a regular basis they received detailed financial information about "utilization," including whether targets set by UBH in particular categories of services were being met. Finally, the evidence at trial established that the emphasis on cost-cutting that was embedded in UBH's Guideline development process actually tainted the process, causing UBH to make decisions about Guidelines based as much or more on its own bottom line as on the interests of the plan members, to whom it owes a fiduciary duty. This was apparent from UBH's handling of TMS and ABA benefits, discussed above. Most striking, however, was the obvious impact of financial considerations on UBH's decision making as to the adoption of the ASAM Criteria. UBH's refusal to adopt the ASAM Criteria was not based on any clinical justification. Indeed, all of its clinicians recommended that the ASAM Criteria be adopted. The only reason UBH declined to adopt the ASAM Criteria was that its Finance Department wouldn't sign off on the change. In other words, UBH's Finance Department had veto power with respect to the Guidelines and used it to prohibit even a change in the Guidelines that all of its clinicians had recommended. This evidence establishes that UBH has a conflict of interest that has had a significant impact on decision-making as to the development of the Guidelines. Therefore, in applying the abuse of discretion standard to Plaintiffs' Breach of Fiduciary Duty Claim, the Court views UBH's decision making with significant skepticism. UBH argues that to the extent that the Denial of Benefits Claim is asserted under both 29 U.S.C. Section 1132(a)(1)(B) and Section 1132(a)(3)(A), the Court should dismiss the latter claim on the basis that the former claim provides adequate relief. UBH relies on the rule that equitable relief under Section 1132(a)(3) is not available if Section 1132(a)(1)(B) provides an adequate remedy. It is well-established, however, that under Varity, claims asserted under Section 1132(a)(1)(B) and Section 1132(a)(3) may proceed simultaneously so long as there is no double recovery. As the Court has not yet addressed the question of remedies, UBH's request that the Court dismiss the Breach of Fiduciary Duty Claim asserted under Section 1132(a)(3)(A) is premature. The Court finds that UBH is liable with respect to the Breach of Fiduciary Duty Claim. Denial of Benefits Claim Plaintiffs assert the Denial of Benefits Claim under 29 U.S.C. Sectioon 1132(a)(1)(B) and 29 U.S.C. Section 1132(a)(3)(B). To prevail on their Denial of Benefits Claim, Plaintiffs must establish by the preponderance of the evidence that: 1) one condition of coverage under the class members' Plans was that the requested treatment was consistent with generally accepted standards of care and/or the standards mandated by state law 2) when determining whether a request for coverage satisfied its Guidelines, UBH was interpreting and applying those plan terms 3) UBH's Guidelines were not consistent with generally accepted standards or the standards mandated by state law and 4) UBH denied Plaintiffs' requests for coverage for outpatient, intensive outpatient, or residential treatment based in whole or in part on UBH's Guidelines. UBH denied Plaintiffs' requests for coverage for outpatient, intensive outpatient, or residential treatment based in whole or in part on UBH's Guidelines. UBH argues that to the extent that the Denial of Benefits Claim is asserted under both 29 U.S.C. Section 1132(a)(1)(B) and Section 1132(a)(3)(B), the Court should dismiss the latter claim on the basis that the former claim provides adequate relief, again relying on Varity. For the reasons discussed above, the Court finds that UBH's request is premature. The Court finds that UBH is liable with respect to the Denial of Benefits Claim. A full-text copy of the District Court's February 28, 2019 Findings and Conclusions is available at http://tinyurl.com/y4vgold4from Leagle.com. David Wit, on behalf of himself and all others similarly situated, Natasha Wit, on behalf of herself and all others similarly situated, Brian Muir, on his own behalf and on behalf of all others similarly situated, Brandt Pfeifer, on behalf of the Estate of his deceased wife, Lauralee Pfeifer, and all others similarly situated, Lori Flanzraich, on behalf of her daughter Casey Flanzraich and all others similarly situated, Cecilia Holdnak, on behalf of herself, her daughter Emily Holdnak, and all others similarly situated, Gary Alexander, on his own behalf and on behalf of his beneficiary son, Jordan Alexander, and all others similarly situated, Corinna Klein, on behalf of herself and all others similarly situated & David Haffner, on behalf of himself and all others similarly situated, Plaintiffs, represented by Meiram Bendat, Psych-Appeal, Inc., 8560 Sunset Blvd, Suite 500 • West Hollywood, CA 90069, Adam Abelson, Zuckerman Spaeder LLP, pro hac vice, Aitan Goelman, Zuckerman Spaeder LLP, pro hac vice,Andrew Nathan Goldfarb, Zuckerman Spaeder LLP, 100 E Pratt St, Ste 2440, Baltimore, MD 21202-1031, Anthony F. Maul -afmaul@maulfirm.com -- The Maul Firm, P.C., Carl Spencer Kravitz, Zuckerman Spaeder LLP, pro hac vice, Caroline E. Reynolds, Zuckerman Spaeder LLP, D. Brian Hufford, Zuckerman Spaeder LLP, Daniel Patrick Moylan, Zuckerman Spaeder LLP, pro hac vice, Jason S. Cowart, Zuckerman Spaeder LLP, Martin Stanley Himeles, Jr., Zuckerman Spaeder LLP, pro hac vice, Sara Louise Alpert Lawson, Zuckerman Spaeder LLP &Steven N. Herman, Zuckerman Spaeder LLP, 100 E Pratt St, Ste 2440, Baltimore, MD 21202-1031 Linda Tillitt, Intervenor Pla, represented by Caroline E. Reynolds, Zuckerman Spaeder LLP, D. Brian Hufford, Zuckerman Spaeder LLP, Jason S. Cowart, Zuckerman Spaeder LLP, Adam Abelson, Zuckerman Spaeder LLP, pro hac vice, Aitan Goelman, Zuckerman Spaeder LLP, pro hac vice, Andrew Nathan Goldfarb, Zuckerman Spaeder LLP, Carl Spencer Kravitz, Zuckerman Spaeder LLP, pro hac vice, Daniel Patrick Moylan, Zuckerman Spaeder LLP, pro hac vice, Martin Stanley Himeles, Jr., Zuckerman Spaeder LLP, pro hac vice, Sara Louise Alpert Lawson, Zuckerman Spaeder LLP & Steven N. Herman, Zuckerman Spaeder LLP. United Behavioral Health, doing business as OptumHealth Behavioral Solutions Inc., Defendant, represented by Christopher Flynn -- cflynn@crowell.com -- Crowell and Moring LLP, Jeffrey Howard Rutherford -- jrutherford@kbkfirm.com -- Kendall Brill & Kelly LLP, Andrew John William Holmer -- aholmer@crowell.com -- Crowell and Moring LLP, April Nelson Ross -- aross@crowell.com -- Crowell & Moring LLP, Jennifer Salzman Romano -- jromano@crowell.com -- Crowell & Moring LLP, Joseph V. Bui, Crowell and Moring LLP, Katharine Fiedler Barach -- kbarach@crowell.com -- Crowell & Moring LLP, Kelly T. Currie -- kcurrie@crowell.com -- Crowell and Moring, Mana Elihu Lombardo -- melombardo@crowell.com -- Crowell and Moring LLP, Nathaniel Philip Bualat -- nbualat@crowell.com -- Crowell & Moring LLP & Thomas Francis Koegel -- tkoegel@crowell.com -- Crowell & Moring LLP. David Wit, on behalf of himself and all others similarly situated, Natasha Wit, on behalf of herself and all others similarly situated, Brian Muir, on his own behalf and on behalf of all others similarly situated, Brandt Pfeifer, on behalf of the Estate of his deceased wife, Lauralee Pfeifer, and all others similarly situated, Lori Flanzraich, on behalf of her daughter Casey Flanzraich and all others similarly situated, Cecilia Holdnak, on behalf of herself, her daughter Emily Holdnak, and all others similarly situated, Gary Alexander, on his own behalf and on behalf of his beneficiary son, Jordan Alexander, and all others similarly situated, Corinna Klein, on behalf of herself and all others similarly situated & David Haffner, on behalf of himself and all others similarly situated, Plaintiffs, represented by Meiram Bendat, Psych-Appeal, Inc., 8560 Sunset Blvd, Suite 500 • West Hollywood, CA 90069, Adam Abelson, Zuckerman Spaeder LLP, pro hac vice, Aitan Goelman, Zuckerman Spaeder LLP, pro hac vice,Andrew Nathan Goldfarb, Zuckerman Spaeder LLP, 100 E Pratt St, Ste 2440, Baltimore, MD 21202-1031, Anthony F. Maul -afmaul@maulfirm.com -- The Maul Firm, P.C., Carl Spencer Kravitz, Zuckerman Spaeder LLP, pro hac vice, Caroline E. Reynolds, Zuckerman Spaeder LLP, D. Brian Hufford, Zuckerman Spaeder LLP, Daniel Patrick Moylan, Zuckerman Spaeder LLP, pro hac vice, Jason S. Cowart, Zuckerman Spaeder LLP, Martin Stanley Himeles, Jr., Zuckerman Spaeder LLP, pro hac vice, Sara Louise Alpert Lawson, Zuckerman Spaeder LLP &Steven N. Herman, Zuckerman Spaeder LLP, 100 E Pratt St, Ste 2440, Baltimore, MD 21202-1031 Linda Tillitt, Intervenor Pla, represented by Caroline E. Reynolds, Zuckerman Spaeder LLP, D. Brian Hufford, Zuckerman Spaeder LLP, Jason S. Cowart, Zuckerman Spaeder LLP, Adam Abelson, Zuckerman Spaeder LLP, pro hac vice, Aitan Goelman, Zuckerman Spaeder LLP, pro hac vice, Andrew Nathan Goldfarb, Zuckerman Spaeder LLP, Carl Spencer Kravitz, Zuckerman Spaeder LLP, pro hac vice, Daniel Patrick Moylan, Zuckerman Spaeder LLP, pro hac vice, Martin Stanley Himeles, Jr., Zuckerman Spaeder LLP, pro hac vice, Sara Louise Alpert Lawson, Zuckerman Spaeder LLP & Steven N. Herman, Zuckerman Spaeder LLP. United Behavioral Health, doing business as OptumHealth Behavioral Solutions Inc., Defendant, represented by Christopher Flynn -- cflynn@crowell.com -- Crowell and Moring LLP, Jeffrey Howard Rutherford -- jrutherford@kbkfirm.com -- Kendall Brill & Kelly LLP, Andrew John William Holmer -- aholmer@crowell.com -- Crowell and Moring LLP, April Nelson Ross -- aross@crowell.com -- Crowell & Moring LLP, Jennifer Salzman Romano -- jromano@crowell.com -- Crowell & Moring LLP, Joseph V. Bui, Crowell and Moring LLP, Katharine Fiedler Barach -- kbarach@crowell.com -- Crowell & Moring LLP, Kelly T. Currie -- kcurrie@crowell.com -- Crowell and Moring, Mana Elihu Lombardo -- melombardo@crowell.com -- Crowell and Moring LLP, Nathaniel Philip Bualat -- nbualat@crowell.com -- Crowell & Moring LLP & Thomas Francis Koegel -- tkoegel@crowell.com -- Crowell & Moring LLP. UNITED HEALTHCARE: Dismissal of Count I in Kamins Suit Affirmed --------------------------------------------------------------- In the case, MICHAEL A. KAMINS, ETC., Appellant-Respondent, v. UNITED HEALTHCARE INSURANCE COMPANY OF NEW YORK, INC., ET AL., Respondents-Appellants, Case 2016-03429, Index No. 64276/14 (N.Y. App. Div.), Judge Cheryl E. Chambers of the Appellate Division of the Supreme Court of New York, Second Department, affirmed the dismissal of the first cause of action in the amended complaint. In an action, inter alia, to recover damages for violations of Insurance Law Sections 3221(l)(5) and 4303(g) and (h), the Plaintiff appeals, and the Defendants cross-appeal, from an order of the Supreme Court, Suffolk County (Jerry Garguilo, J.), dated March 7, 2016. The order, insofar as appealed from, granted that branch of the Defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action in the amended complaint. The Plaintiff is an employee of the State of New York. During the time period relevant to the action, the Plaintiff received health insurance benefits for himself and his family members through a health insurance plan that was insured and administered by the Defendants. He commenced the putative class action challenging the Defendants' denial of mental health benefits allegedly owed to his adult son and similarly situated subscribers of the Plaintiff's health insurance plan. The first cause of action in the amended complaint alleged violations of New York's mental health parity law, also known as Timothy's Law. Specifically, he alleged that the Defendants applied a definition of medical necessity and utilization review requirements to coverage of mental health care claims that were far more restrictive than those imposed on general medical claims. The Defendants moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the first cause of action in the amended complaint. In an order dated March 7, 2011, the Supreme Court, inter alia, granted that branch of the motion. The Plaintiff appeals from that portion of the order. The Defendants filed a notice of cross appeal from the order dated March 7, 2011, but, in their brief, do not ask for reversal or modification of the order. Accordingly, the Defendants' cross appeal must be dismissed as abandoned. Judge Chambers explains that after the order appealed from was issued, the District Court for the Southern District of New York determined that no intent to create a private right of action can fairly be implied from the statutory language and legislative history of Timothy's Law. In so finding, the District Court found relevant an amicus brief filed by the New York State Department of Financial Services ("DFS") in Doe v Oxford Health Insurance, Inc. The District Court stated that, in that amicus brief, DFS took the position that Timothy's Law did not create a private right of action, and that a private right of action would "upend" the legislative enforcement scheme. DFS reasoned that determinations of whether the law had been violated required complex, fact-based determinations about medical necessity, and DFS had implemented a comprehensive system to evaluate appeals following denials of coverage. The Judge agrees with the District Court that allowing people to litigate these issues in court might yield duplicative or inconsistent results. Accordingly, she holds that Timothy's Law lacks a private right of action and, thus, agrees with the Supreme Court's determination granting that branch of the Defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action in the amended complaint. A full-text copy of the Court's April 3, 2019 Decision and Order is available at https://is.gd/KbeSCb from Leagle.com. The Maul Firm, P.C., Brooklyn, NY (Anthony F. Maul of counsel), for appellant-respondent. Dorsey & Whitney LLP, New York, NY (Richard H. Silberberg -- silberberg.richard@dorsey.com -- of counsel), for respondents-appellants. UNITED STATES: 9th Cir. Reverses Dismissal of Muslims' Suit vs. FBI ------------------------------------------------------------------- The United States Court of Appeals, Ninth Circuit, issued an Opinion affirming in part and reversing in part the judgment of the District Court's order dismissing the majority of the Plaintiffs' claims in the cases captioned YASSIR FAZAGA; ALI UDDIN MALIK; YASSER ABDELRAHIM, Plaintiffs-Appellees, v. FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER A. WRAY, Director of the Federal Bureau of Investigation, in his official capacity; PAUL DELACOURT, Assistant Director in Charge, Federal Bureau of Investigation's Los Angeles Division, in his official capacity; PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN, Defendants, and BARBARA WALLS; J. STEPHEN TIDWELL, Defendants-Appellants. YASSIR FAZAGA; ALI UDDIN MALIK; YASSER ABDELRAHIM, Plaintiffs-Appellees, v. FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER A. WRAY, Director of the Federal Bureau of Investigation, in his official capacity; PAUL DELACOURT, Assistant Director in Charge, Federal Bureau of Investigation's Los Angeles Division, in his official capacity; J. STEPHEN TIDWELL; BARBARA WALLS, Defendants, and PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN, Defendants-Appellants. YASSIR FAZAGA; ALI UDDIN MALIK; YASSER ABDELRAHIM, Plaintiffs-Appellants, v. FEDERAL BUREAU OF INVESTIGATION; CHRISTOPHER A. WRAY, Director of the Federal Bureau of Investigation, in his official capacity; PAUL DELACOURT, Assistant Director in Charge, Federal Bureau of Investigation's Los Angeles Division, in his official capacity; J. STEPHEN TIDWELL; BARBARA WALLS; PAT ROSE; KEVIN ARMSTRONG; PAUL ALLEN; UNITED STATES OF AMERICA, Defendants-Appellees. Nos. 12-56867, 12-56874, 13-55017. (9th Cir.). The Plaintiffs appeal the dismissal of the majority of their claims and the Agent Defendants appeal the denial of qualified immunity on the FISA claim. Three Muslim residents of Southern California allege that, for more than a year, the Federal Bureau of Investigation (FBI) paid a confidential informant to conduct a covert surveillance program that gathered information about Muslims based solely on their religious identity. The three plaintiffs filed a putative class action against the United States, the FBI, and two FBI officers in their official capacities (Government Defendants) and against five FBI agents in their individual capacities (Agent Defendants). Alleging that the investigation involved unlawful searches and anti-Muslim discrimination, they pleaded eleven constitutional and statutory causes of action. The Attorney General of the United States asserted the state secrets privilege with respect to three categories of evidence assertedly at issue in the case, and the Government moved to dismiss the discrimination claims pursuant to that privilege. The Government expressly did not move to dismiss the Fourth Amendment and Foreign Intelligence Surveillance Act (FISA) unlawful search claims based on the privilege. Both the Government and the Agent Defendants additionally moved to dismiss Plaintiffs' discrimination and unlawful search claims based on arguments other than the privilege. The district court dismissed all but one of Plaintiffs' claims on the basis of the state secrets privilege including the Fourth Amendment claim, although the Government Defendants had not sought its dismissal on privilege grounds. The district court allowed only the FISA claim against the Agent Defendants to proceed. The FISA Claim Against the Agent Defendant Section 110 of FISA, codified at 50 U.S.C. Section 1810, creates a private right of action for an individual subjected to electronic surveillance in violation of FISA's procedures. It provides, in pertinent part: An aggrieved person, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation. To determine whether Plaintiffs plausibly allege a cause of action under Section 1810, the Court must decide (1) whether Plaintiffs are aggrieved persons within the meaning of the statute (2) whether the surveillance to which they were subjected qualifies as electronic surveillance and (3) whether the complaint plausibly alleges a violation of 50 U.S.C. Section 1809. An aggrieved person is defined as a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance. The key question as to the presence of electronic surveillance under this definition is whether the surveillance detailed in the complaint was undertaken in circumstances in which (1) Plaintiffs had a reasonable expectation of privacy and (2) a warrant would be required for law enforcement purposes. If, as the complaint alleges, no warrant was in fact obtained, such electronic surveillance would constitute a violation of Section 1809. To properly approach this inquiry, the Court considers separately three categories of audio and video surveillance alleged in the complaint: (1) recordings made by Monteilh of conversations to which he was a party (2) recordings made by Monteilh of conversations to which he was not a party (i.e., the recordings of conversations in the mosque prayer hall) and (3) recordings made by devices planted by FBI agents in Fazaga's office and AbdelRahim's house, car, and phone. The Court concludes that the Agent Defendants are entitled to dismissal on qualified immunity grounds of Plaintiffs' Section 1810 claim as to the first two categories of surveillance. As to the third category of surveillance, conducted via devices planted in AbdelRahim's house and Fazaga's office, Allen and Armstrong are not entitled to qualified immunity. But Tidwell, Walls, and Rose are entitled to dismissal as to this category, because Plaintiffs do not plausibly allege their involvement in this category of surveillance, and so have not pleaded facts showing that those officials violated a statutory or constitutional right. Recordings of Conversations to Which Monteilh Was a Party A reasonable expectation of privacy exists where a person has exhibited an actual (subjective) expectation of privacy, and the expectation is one that society is prepared to recognize as `reasonable. Plaintiffs contend, however, that the invited informer doctrine does not apply to the recordings made by Monteilh of conversations to which he was a party because the surveillance was conducted with discriminatory purpose and therefore in bad faith. Under the appropriate Fourth Amendment precepts, undercover operations, in which the agent is a so-called invited informer, are not searches under the Fourth Amendment. In other words, use of a government informant under the invited informer doctrine even if not in good faith in the First Amendment sense does not implicate the privacy interests protected by the Fourth Amendment. Because our inquiry under FISA is confined to whether a reasonable expectation of privacy was violated and whether a warrant was therefore required, the First Amendment-grounded good-faith limitation does not apply to our current inquiry. Under the invited informer doctrine, Plaintiffs lacked a reasonable expectation of privacy in the conversations recorded by Monteilh to which he was a party. The Agent Defendants are therefore not liable under FISA for this category of surveillance. Recordings of Conversations in the Mosque Prayer Hall to Which Monteilh Was Not a Party Plaintiffs did have a privacy-grounded reasonable expectation that their conversations in the mosque prayer hall would not be covertly recorded by an individual who was not present where Plaintiffs were physically located and was not known to be listening in. The Agent Defendants are, however, entitled to qualified immunity with respect to this category of surveillance under the second prong of the qualified immunity standard whether the right was clearly established at the time of the challenged conduct. The mosque prayer hall is not an ordinary public place. It is a site of religious worship, a place for Muslims to come together for prayer, learning, and fellowship. Plaintiffs allege that the prayer hall is a sacred space where particular rules and expectations apply. Shoes are prohibited, one must be in a state of ablution, discussing worldly matters is discouraged, and the moral standards and codes of conduct are at their strongest. Notably, gossiping, eavesdropping, or talebearing (namima -- revealing anything where disclosure is resented) is forbidden. And ICOI, which Malik and AbdelRahim attended, specifically prohibited audio and video recording in the mosque without permission. When, on a rare occasion, an outside entity did record an event or a speaker, ICOI put up signs to notify congregants. Furthermore, Plaintiffs explain in their complaint that halaqas, which are small group meetings during which participants discuss theology or matters related to the practice of Islam, are understood by mosque attendees to be environments that ensure some measure of confidentiality among participants. The sacred and private nature of the houses of worship Plaintiffs attended distinguishes them from the types of commercial and public spaces in which courts have held that individuals lack a reasonable expectation of privacy. The mosque prayer halls in this case, by contrast, have no characteristics similarly evidencing diminished expectations of privacy or rendering such expectations unreasonable. There are no urgent health or safety needs justifying surveillance. And the use of surveillance equipment at ICOI is not only uncommon, but expressly forbidden. Our constitutional protection of religious observance supports finding a reasonable expectation of privacy in such a sacred space, where privacy concerns are acknowledged and protected, especially during worship and other religious observance. Thus, Plaintiffs' expectation that their conversations in the mosque prayer hall would be confidential among participants (unless shared by one of them with others), and so would not be intercepted by recording devices planted by absent government agents was objectively reasonable. Accordingly, we hold that Plaintiffs had a reasonable expectation of privacy that their conversations in the mosque prayer hall would not be covertly recorded by a government agent not party to the conversations. As of 2006 and 2007, however, no federal or state court decision had held that individuals generally have a reasonable expectation of privacy from surveillance in places of worship. The Agent Defendants are thus entitled to qualified immunity as to this category of surveillance. Recordings Made by Planted Devices Plaintiffs offer sufficient well-pleaded facts to substantiate their allegation that some of the Agent Defendants Allen and Armstrong were responsible for planting devices in AbdelRahim's house. Specifically, the complaint details one occasion on which Allen and Armstrong asked Monteilh about something that had happened in AbdelRahim's house that Monteilh had not yet communicated to them, and explained that they knew about it because they had audio surveillance in the house. As to Tidwell, Walls, and Rose, however, the complaint does not plausibly allege their personal involvement with respect to the planted devices. The complaint details Tidwell, Walls, and Rose's oversight of Monteilh, including that they read his daily notes and were apprised, through Allen and Armstrong, of the information he collected. But the complaint never alleges that Monteilh was involved in planting devices in AbdelRahim's house, car, or phone, or in Fazaga's office; those actions are attributed only to unnamed FBI agents. The complaint also offers general statements that Tidwell, Walls, and Rose supervised Allen and Armstrong. But government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. Instead, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution. Plaintiffs have not done so as to this category of surveillance with regard to Tidwell, Walls, and Rose. The complaint does not allege that the supervisors knew of, much less ordered or arranged for, the planting of the recording devices in AbdelRahim's home or Fazaga's office, so the supervisors are entitled to qualified immunity as to that surveillance. In sum, Plaintiffs allege a FISA claim against Allen and Armstrong for recordings made by devices planted by FBI agents in AbdelRahim's house and Fazaga's office. As to all other categories of surveillance, the Agent Defendants either did not violate FISA; are entitled to qualified immunity on the FISA claim because Plaintiffs' reasonable expectation of privacy was not clearly established; or were not plausibly alleged in the complaint to have committed any FISA violation that may have occurred. The State Secrets Privilege and FISA Preemption The initial question as to Plaintiffs' second argument is whether the procedures established under FISA for adjudicating the legality of challenged electronic surveillance replace the common law state secrets privilege with respect to such surveillance to the extent that privilege allows the categorical dismissal of causes of action. The question is a fairly novel one. The Court is the first federal court of appeals to address it. Only two district courts, both in our circuit, have considered the issue. Those courts both held that FISA displaces federal common law rules such as the state secrets privilege with regard to matters within FISA's purview. The Court rely on similar reasoning to that in those district court decisions, but reach a narrower holding as to the scope of FISA preemption. Plaintiffs' religion claims will not go forward under the open and transparent processes to which litigants are normally entitled. Instead, in the interest of protecting national security, the stringent FISA procedures require severe curtailment of the usual protections afforded by the adversarial process and due process. As it is Plaintiffs who have invoked the FISA procedures, the Court proceed on the understanding that they are willing to accept those restrictions to the degree they are applicable as an alternative to dismissal, and so may not later seek to contest them. The District Court's Dismissal of the Search Claims Based on the State Secrets Privilege As a threshold matter, before determining whether FISA displaces the state secrets privilege with regard to electronic surveillance, the Court first considers which of Plaintiffs' claims might otherwise be subject to dismissal under the state secrets privilege. Although the Government expressly did not request dismissal of the Fourth Amendment and FISA claims based on the privilege, the district court nonetheless dismissed the Fourth Amendment claim on that basis. That was error. The Agent Defendants note that the Government focuses on the public disclosure of recordings collected by Monteilh, and point out that Plaintiffs also challenge surveillance conducted without Monteilh's involvement -- namely, the planting of recording devices by FBI agents in Fazaga's office and AbdelRahim's home, car, and phone. Allegations concerning the planting of recording devices by FBI agents other than Monteilh, the Agent Defendants argue, are the sources and methods discussed in the Attorney General's invocation of the privilege. The Agent Defendants thus maintain that because the Government's reasons for not asserting the privilege over the search claims do not apply to all of the surveillance encompassed by the search claims, dismissal as to the search claims is in fact necessary. The Agent Defendants, however, are not uniquely subject to liability for the planted devices. The Fourth Amendment claim against the Government Defendants likewise applies to that category of surveillance. The Agent Defendants, officials sued in their individual capacities are not the protectors of the state secrets evidence; the Government is. Accordingly, and because the Agent Defendants have not identified a reason they specifically require dismissal to protect against the harmful disclosure of state secrets where the Government does not, the Court declines to accept their argument that the Government's dismissal defense must be expanded beyond the religion claims. In short, in determining sua sponte that particular claims warrant dismissal under the state secrets privilege, the district court erred. For these reasons, we will not extend FISA's procedures to challenges to the lawfulness of electronic surveillance to the degree the Government agrees that such challenges may be litigated in accordance with ordinary adversarial procedures without compromising national security. FISA Displacement of the State Secrets Privilege Before the enactment of FISA in 1978, foreign intelligence surveillance and the treatment of evidence implicating state secrets were governed purely by federal common law. Federal courts develop common law in the absence of an applicable Act of Congress. Federal common law is, however, a 'necessary expedient' and when Congress addresses a question previously governed by a decision rested on federal common law the need for such an unusual exercise of lawmaking by federal courts disappears. Once the field has been made the subject of comprehensive legislation or authorized administrative standards, federal common law no longer applies. Applicability of FISA's Section 1806(f) Procedures to Affirmative Legal Challenges to Electronic Surveillance Fourth Amendment Injunctive Relief Claim Against the Official-Capacity Defendants The Government's primary argument for dismissal of the constitutional claims brought against the official-capacity defendants, including the Fourth Amendment claim, is that the injunctive relief sought -- the expungement of all records unconstitutionally obtained and maintained is unavailable under the Constitution. Not so. We have repeatedly and consistently recognized that federal courts can order expungement of records, criminal and otherwise, to vindicate constitutional rights. The Privacy Act, 5 U.S.C. Section 552a, which (1) establishes a set of practices governing the collection, maintenance, use, and dissemination of information about individuals maintained in records systems by federal agencies, and (2) creates federal claims for relief for violations of the Act's substantive provisions, does not displace the availability of expungement relief under the Constitution. Previous cases involving claims brought under both the Privacy Act and the Constitution did not treat the Privacy Act as displacing a constitutional claim, but instead analyzed the claims separately. And the circuits that have directly considered whether the Privacy Act displaces parallel constitutional remedies have all concluded that a plaintiff may pursue a remedy under both the Constitution and the Privacy Act. In short, expungement relief is available under the Constitution to remedy the alleged constitutional violations. Because the Government raises no other argument for dismissal of the Fourth Amendment injunctive relief claim, it should not have been dismissed. Fourth Amendment Bivens Claim Against the Agent Defendants Alleging that the Agent Defendants violated the Fourth Amendment, Plaintiffs seek monetary damages directly under the Constitution under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Supreme Court recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights. Here, the substance of Plaintiffs' Fourth Amendment Bivens claim is identical to the allegations raised in their FISA Section 1810 claim. Under our rulings regarding the reach of the Section 1806(f) procedures, almost all of the search-and-seizure allegations will be subject to those procedures. Thus, regardless of whether a Bivens remedy is available, Plaintiffs' underlying claim that the Agent Defendants engaged in unlawful electronic surveillance violative of the Fourth Amendment would proceed in the same way. Religion Claims First Amendment and Fifth Amendment Injunctive Relief Claims Against the Official-Capacity Defendants Plaintiffs maintain that it violates the First Amendment's Religion Clauses and the equal protection component of the Fifth Amendment for the Government to target them for surveillance because of their adherence to and practice of Islam. The Government does not challenge the First and Fifth Amendment claims substantively. It argues only that injunctive relief is unavailable and that litigating the claims is not possible without risking the disclosure of state secrets. The Court have already concluded that injunctive relief, including expungement, is available under the Constitution where there is a substantively viable challenge to government action, see supra Part III.A, and that dismissal because of the state secrets concern was improper because of the availability of the Section 1806(f) procedures. Accordingly, considering only the arguments put forward by the Government, we conclude that the First and Fifth Amendment claims against the official-capacity defendants may go forward. First Amendment and Fifth Amendment Bivens Claims Against the Agent Defendants Plaintiffs seek monetary damages directly under the First Amendment's Establishment and Free Exercise Clauses and the equal protection component of the Fifth Amendment's Due Process Clause, relying on Bivens v. Six Unknown Named Agents. Here, many of Plaintiffs' allegations relate not to neutral and generally applicable government action, but to conduct motivated by intentional discrimination against Plaintiffs because of their Muslim faith. Regardless of the magnitude of the burden imposed, if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral and is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest. It is the Free Exercise Clause of the First Amendment -- not Religious Freedom Restoration Act (RFRA) that imposes this requirement. The Court concludes that the Privacy Act and RFRA, taken together, function as an alternative remedial scheme for protecting some, but not all, of the interests Plaintiffs seek to vindicate via their First and Fifth Amendment Bivens claims. The district court never addressed whether a Bivensremedy is available for any of the religion claims because it dismissed the claims in their entirety based on the state secrets privilege. In addition, Abbasi has now clarified the standard for determining when a Bivens remedy is available for a particular alleged constitutional violation. And, as we have explained, the scope of the religion claims to which a Bivens remedy might apply is considerably narrower than those alleged, given the partial displacement by the Privacy Act and RFRA. If asked, the district court should determine on remand, applying Abbasi, whether a Bivens remedy is available to the degree the damages remedy is not displaced by the Privacy Act and RFRA. 42 U.S.C. Section 1985(3) Claims Against the Agent Defendants Plaintiffs allege that the Agent Defendants conspired to deprive Plaintiffs of their rights under the First Amendment's Establishment and Free Exercise Clauses and the due process guarantee of the Fifth Amendment, in violation of 42 U.S.C. Section 1985(3). To state a violation of Section 1985(3), Plaintiffs must allege and prove four elements: (1) a conspiracy (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws and (3) an act in furtherance of the conspiracy (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. The Defendants attack these claims on various grounds, but the Court reach only one whether Section 1985(3) conspiracies among employees of the same government entity are barred by the intracorporate conspiracy doctrine. Abbasi makes clear that intracorporate liability was not clearly established at the time of the events in this case and that the Agent Defendants are therefore entitled to qualified immunity from liability under Section 1985(3). The dispositive issue here, as in Abbasi, is whether the Agent Defendants could reasonably have known that agreements entered into or agreed-upon policies devised with other employees of the FBI could subject them to conspiracy liability under Section 1985(3). At the time the Plaintiffs allege they were surveilled, neither this court nor the Supreme Court had held that an intracorporate agreement could subject federal officials to liability under Section 1985(3), and the circuits that had decided the issue were split.41 There was therefore, as in Abbasi, no clearly established law on the question. As the Agent Defendants are entitled to qualified immunity on the Section 1985(3) allegations in the complaint, we affirm their dismissal on that ground. Religious Freedom Restoration Act Claim Against the Agent Defendants and Government Defendants The Plaintiffs allege that the Defendants violated the Religious Freedom Restoration Act, 42 U.S.C. Section 2000bb, by substantially burdening Plaintiffs' exercise of religion, and did so neither in furtherance of a compelling governmental interest nor by adopting the least restrictive means of furthering any such interest. The Government Defendants offer no argument for dismissal of the RFRA claim other than the state secrets privilege. The Agent Defendants, however, contend that they are entitled to qualified immunity on the RFRA claim because Plaintiffs failed to plead a substantial burden on their religion, and if they did so plead, no clearly established law supported that conclusion at the relevant time. To establish a prima facie claim under RFRA, a plaintiff must present evidence sufficient to allow a trier of fact rationally to find the existence of two elements. First, the activities the plaintiff claims are burdened by the government action must be an exercise of religion. Second, the government action must `substantially burden' the plaintiff's exercise of religion. Once a plaintiff has established those elements, the burden of persuasion shifts to the government to prove that the challenged government action is in furtherance of a compelling governmental interest' and is implemented by `the least restrictive means. Plaintiffs do allege that they altered their religious practices as a result of the FBI's surveillance: Malik trimmed his beard, stopped regularly wearing a skull cap, decreased his attendance at the mosque, and became less welcoming to newcomers than he believes his religion requires. AbdelRahim significantly decreased his attendance to mosque, limited his donations to mosque institutions, and became less welcoming to newcomers than he believes his religion requires. Fazaga, who provided counseling at the mosque as an imam and an intern therapist, stopped counseling congregants at the mosque because he feared the conversations would be monitored and thus not confidential. As to the Agent Defendants, therefore, the Court affirms the dismissal of the RFRA claim. But because the Government Defendants are not subject to the same qualified immunity analysis and made no arguments in support of dismissing the RFRA claim other than the state secrets privilege, the Court holds that the complaint substantively states a RFRA claim against the Government Defendants. Privacy Act Claim Against the FBI The Plaintiffs allege that the FBI violated the Privacy Act, 5 U.S.C. Section 552a(e)(7), by collecting and maintaining records describing how Plaintiffs exercised their First Amendment rights. As a remedy, Plaintiffs seek only injunctive relief ordering the destruction or return of unlawfully obtained information. Cell Associates, Inc. v. National Institutes of Health, 579 F.2d 1155 (9th Cir. 1978), which interpreted the scope of Privacy Act remedies, precludes such injunctive relief. A violation of Section 552a(e)(7) falls within the catch-all remedy provision, applicable if the agency fails to comply with any other provision of the Privacy Act. 5 U.S.C. Section 552a(g)(1)(D). As the statute does not expressly provide for injunctive relief for a violation of this catch-all provision, Cell Associates precludes injunctive relief for a violation of Section 552a(e)(7). The Plaintiffs attempt to avoid the precedential impact of Cell Associates on the ground that it nowhere mentions Section 552a(e)(7). That is so, but the holding of Cell Associates nonetheless applies directly to this case. The Privacy Act specifies that injunctive relief isavailable for violations of some provisions of the Act, but not for a violation of Section 552a(e)(7). Under Cell Associates, Plaintiffs cannot obtain injunctive relief except for violations as to which such relief is specifically permitted. The Plaintiffs' complaint expressly provides that the FBI is sued for injunctive relief only. Accordingly, because their sole requested remedy is unavailable, Plaintiffs fail to state a claim under the Privacy Act. FTCA Claims The FTCA constitutes a waiver of sovereign immunity under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. State substantive law applies" in FTCA actions. If an individual federal employee is sued, the United States shall, given certain conditions are satisfied, be substituted as the party defendant. Plaintiffs allege that the United States is liable under the FTCA for invasion of privacy under California law, violation of the California constitutional right to privacy, violation of California Civil Code Section 52.1, and intentional infliction of emotional distress. The Court first consider Defendants' jurisdictional arguments, and then discuss their implications for the substantive FTCA claims. FTCA Judgment Bar The FTCA's judgment bar provides that the judgment in an action under the FTCA shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim. The judgment bar provision has no application here. The judgment bar provision precludes claims against individual defendants in two circumstances: (1) where a plaintiff brings an FTCA claim against the government and non-FTCA claims against individual defendants in the same action and obtains a judgment against the government, and (2) where the plaintiff brings an FTCA claim against the government, judgment is entered in favor of either party, and the plaintiff then brings a subsequent non-FTCA action against individual defendants, Neither of those two circumstances, nor their attendant risks, is present here. Plaintiffs brought their FTCA claim, necessarily, against the United States, and their non-FTCA claims against the Agent Defendants, in the same action. The FTCA's judgment bar does not operate to preclude Plaintiffs' claims against the Agent Defendants. FTCA Discretionary Function Exception The Court cannot determine the applicability of the discretionary function exception at this stage in the litigation. If, on remand, the district court determines that Defendants did not violate any federal constitutional or statutory directives, the discretionary function exception will bar Plaintiffs' FTCA claims. But if the district court instead determines that Defendants did violate a nondiscretionary federal constitutional or statutory directive, the FTCA claims may be able to proceed to that degree. Because applicability of the discretionary function will largely turn on the district court's ultimate resolution of the merits of Plaintiffs' various federal constitutional and statutory claims, discussing whether Plaintiffs substantively state claims as to the state laws underlying the FTCA claim would be premature. We therefore decline to do so at this juncture. AFFIRMED in part, REVERSED in part, and REMANDED. A full-text copy of the Ninth Circuit's February 28, 2019 Opinion is available at https://tinyurl.com/y6cputet from Leagle.com. Carl J. Nichols -- CARL.NICHOLS@WILMERHALE.COM -- (argued) and Howard M. Shapiro -- HOWARD.SHAPIRO@WILMERHALE.COM -- Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Katie Moran -- KATIE.MORAN@WILMERHALE.COM -- Wilmer Cutler Pickering Hale and Dorr LLP, Los Angeles, California; for Defendants-Appellants/Cross-Appellees Barbara Walls and J. Stephen Tidwell. Alexander H. Cote acote@scheperkim.com (argued), Amos A. Lowder -- alowder@scheperkim.com -Angela M. Machala -- amachala@scheperkim.com -- David C. Scheper -- dscheper@scheperkim.com -- Scheper Kim & Harris LLP, Los Angeles, California, for Defendants-Appellants/Cross-Appellees Pat Rose, Paul Allen, and Kevin Armstrong. Douglas N. Letter (argued), Daniel Tenny, and Mark B. Stern, Appellate Staff; Stephanie Yonekura, Acting United States Attorney; Civil Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees Federal. Bureau of Investigation, Christopher A. Wray, and Paul Delacourt. Richard R. Wiebe, Law Office of Richard R. Wiebe, 44 Montgomery St, Ste 650, CA 94104-4605 San Francisco, California; Thomas E. Moore III -- tmoore@rroyselaw.com, Royse Law Firm PC, Palo Alto, California; David Greene -- davidg@eff.org -- Andrew Crockner -- andrew@eff.org -- Mark Rumold, James S. Tyre -- jstyre@eff.org -- Kurt Opsahl -- kurt@eff.org -- Electronic Frontier Foundation, San Francisco, California; for Amicus Curiae Electronic Frontier Foundation. UNITED STATES: Ackerman Seeks to Certify Class & Subclass --------------------------------------------------------- In the class action lawsuit ACKERMAN & SON LLC; ACKERMAN BROTHERS FARMS, LLC; BACK ROAD FARMING, INC., et al.; individually and on behalf of a class of similarly situated persons, the Plaintiffs, vs. UNITED STATES DEPARTMENT OF AGRICULTURE, RISK MANAGEMENT AGENCY, and FEDERAL CROP INSURANCE CORPORATION, the Defendants, Case No. 1:17-cv-11779-TLL-PTM (E.D. Mich.), the Plaintiffs move the Court to certify a class consisting of: "all policyholders of 2015 Dry Bean Revenue Endorsement (DBRE) policies insuring pea (navy) beans and/or small red beans in Michigan, and who farmed in the Eastern District of Michigan in 2015." In the event that the court prefers to certify subclasses, the Plaintiffs move to certify three subclasses consisting of persons meeting these criteria: i. All policyholders of 2015 DBRE policies insuring pea (navy) beans in Michigan, grown in the Eastern District of Michigan in 2015. ii. All policyholders of 2015 DBRE policies insuring small red beans in Michigan, grown in the Eastern District of Michigan in 2015. iii. All policyholders of 2015 DBRE policies insuring both pea (navy) beans and small red beans in Michigan, grown in the Eastern District of Michigan in 2015.[CC] Attorneys for the Plaintiff: John D. Tallman, Esq. JOHN D. TALLMAN, PLC 4020 East Beltline Ave, N.E. – Suite 101 Grand Rapids, MI 49525 Telephone: (616) 361-8850 Attorney for the Defendants: Sarah Karpinen, Esq. ASSISTANT U.S. ATTORNEY 211 W. Fort Street – Suite 2001 Detroit, MI 48226 Telephone: (313) 226-9595 UNITED STATES: Court Nixes Class Claims in Smith Prisoner Suit -------------------------------------------------------------- The U.S. District Court for the District of Columbia issued an order in the lawsuit titled GARY LEE SMITH v. HUGH J. HURWITZ, Case No. 1:19-cv-00548-RDM (D.D.C.), ruling that: -- Plaintiff's individual claims shall proceed; -- Plaintiff's class action claims are dismissed; -- Plaintiff's motion to certify class is denied; -- Plaintiff's motion for service is denied as moot; and -- the Clerk of Court shall assign this action randomly to a judge for further proceedings. Hugh J. Hurwitz is the Acting Director of the Federal Bureau of Prisons. The Plaintiff, a prisoner proceeding pro se, has filed suit alleging that the Bureau of Prisons has failed to distribute his health care services fees as restitution to victims. He also attempts to bring a class action lawsuit on behalf of other prisoners. The Court finds that while the Plaintiff's individual claims may proceed, he may not bring a class action. As a general rule, applicable here, a pro se litigant can represent only himself or herself in federal court.[CC] UNITED STATES: DHS Ordered to Turn Over Docs in DACA Class Action ----------------------------------------------------------------- Courthouse News Service reported that a federal judge has ordered the U.S. Department of Homeland Security to either turn over documents regarding its decision to terminate protections for children of immigrants -- known as Dreamers -- or submit a privilege log ahead of the summary judgment portion of a class action over the termination of DACA. A copy of the Order is available at: https://is.gd/um91b6 UNITED STATES: Oklahoma City NAACP to File Class Action v. DHS -------------------------------------------------------------- Dana Hertneky, writing for News9, reports that the NAACP says they will be working with a local attorney to file a class action lawsuit against the Department of Human Services. They say they represent dozens of families and DHS caseworkers. The plaintiffs in the case are seeking monetary damages and change in the system, they say, not only fails to protect children but also puts them in harm's way. The DHS caseworkers who told News 9 in a 2017 investigation about high caseloads and the danger that puts kids in, will be part of the lawsuit. As will Dahn Gregg who spoke to News 9 the day she was fired after she raised concerns about dangerous foster homes. "As workers, they should be able to go and say this is a problem, and someone should listen to them and take care of it," said Gregg. "These are children, we are responsible for the safety of these children." Gregg's attorney Rachel Bussett says she has also heard from several families whose children were harmed while in DHS care. The NAACP says they also have had many families reach out to them saying the same thing. "We have family after family with the same problem, and you can't have the same problem with different families that have no connection," said Dana Brockway with the Oklahoma City branch of the NAACP. In a statement DHS said, "We have met with Oklahoma City NAACP representatives numerous times over the past year regarding these allegations. Thorough reviews of the few cases presented to us found no evidence of improprieties. In fact, the courts have been involved in each of these matters and have issued the orders governing the Department's ongoing efforts to work with those families and the families' responsibilities for regaining custody of their children. We are quite confident our actions have been justifiable, in the best interests of the children involved, and these allegations are without merit." Brockway and Bussett, however, say they are also taking their concerns to state lawmakers and have scheduled a meeting with Governor Stitt. "Unless he makes a systemic change in DHS from top to bottom a lawsuit can't be avoided at this point," said Bussett. "Because we have been shaking the trees for two years and they aren't listening." Bussett says the lawsuit should be filed by the end of the month. [GN] UNITED STATES: Veterans Affairs Responds to NVLSP's Class Action ---------------------------------------------------------------- The National Veterans Legal Services Program on April 1 issued the following news release: In response to the National Veterans Legal Services Program (NVLSP) class action lawsuit, Wolfe and Boerschinger v. Wilkie, the U.S. Dept. of Veterans Affairs (VA) admitted that it misled tens of thousands of veterans who had applied for reimbursement of the emergency -care expenses they incurred at non-VA facilities. The admission came in VA's March 15, 2019 court-ordered response to the lawsuit that NVLSP filed on behalf of Peter E. Boerschinger. Mr. Boerschinger seeks to represent the tens of thousands of other veterans who, like him, received VA correspondence inaccurately informing them that they could not qualify for reimbursement if their expenses were partially covered by private insurance. Under the law, veterans can qualify for reimbursement even if their emergency medical expenses are partially covered by private insurance. As part of Mr. Boerschinger's lawsuit, NVLSP seeks to compel the VA to provide corrected information to all veterans who received the inaccurate communications and to reinstate their reimbursement claims. "NVLSP is gratified that our class action lawsuit has forced the VA to admit to the widespread systematic errors in its emergency-care reimbursement system and to provide corrected information to tens of thousands of veterans who received the false information," said NVLSP Executive Director Bart Stichman. "NVLSP's fight for veterans is far from over. NVLSP will continue to pursue our class action lawsuit with full vigor to correct the other claim in our lawsuit -- VA's continued policy of denying reimbursement for the deductibles and co-insurance payments they are required to pay to their private insurer." According to the VA, the Veterans Health Administration (VHA) will begin to take several steps to remedy the false information that was sent to veterans. VHA stated that on Feb. 8, 2019, it stopped adjudication of all emergency-care reimbursement claims that were missing needed information or that did not meet criteria for reimbursement. The VHA announced a three-tiered corrective action plan that involves corrected notice letters, new adjudications, and renewed appellate rights to all veterans whose claims are denied after they are re-adjudicated. The VHA's three categories of corrective actions are: * Category A veterans are those whose claims were denied based on the presence of other health insurance. VHA will advise them by letter of the erroneous adjudication and notify them that their claims will be reopened and re-adjudicated. VHA stated that these letters will be issued beginning in April 2019, but did not address when it will complete these mailings. Nor did VHA address when these cases will be redecided. Once decided, Category A veterans will ultimately be informed via letter of the re-adjudication results and the new one-year period to appeal any adverse decision. * Category B veterans are those whose claims were denied for reasons other than the presence of other health insurance. They will be treated similarly to Category A veterans. VHA stated that it will begin to send letters notifying them that their claims will be reopened and redecided in May 2019. * Category C veterans are those whose claims were rejected as incomplete. VHA will begin to mail corrected notices in May 2019. These corrected notices will advise Category C veterans of the correct eligibility criteria for reimbursement. Additionally, VHA will also institute some global organizational changes for its reimbursement claims system. This includes revising all of its letter templates to remove the erroneous other-health-insurance criterion. Background On Jan. 1, 2019, NVLSP amended the class action lawsuit it filed two months earlier in the U.S. Court of Appeals for Veterans Claims (CAVC) to accuse the VA of sending false information throughout 2018 to tens of thousands of veterans who had applied for VA reimbursement of emergency medical expenses they incurred at non-VA facilities. The lawsuit, filed with the pro bono assistance of Sidley Austin LLP, asserts that the VA has a practice and policy of informing these veterans - falsely - that they cannot qualify for any reimbursement if they have partial coverage for their emergency medical expenses under a health plan contract. This VA representation is inaccurate, according to NVLSP, because it directly violates the binding decision issued by the CAVC in 2016 in Staab v. Shulkin, which invalidated a VA regulation precisely because it prohibited reimbursement if the veteran had partial coverage under a health care plan. NVLSP has filed suit three times over VA's failure to comply with the Emergency Care Fairness Act of 2010 (ECFA). NVLSP represented veteran Richard Staab (Staab v. Shulkin) in the first landmark case filed in 2014 after the VA declined to reimburse him for any of the $48,000 he incurred for emergency open heart surgery purely because secondary insurance covered part of the emergency care bill. In that lawsuit, the CAVC nullified the VA regulation that prohibited reimbursement for any of the veteran's emergency medical expenses merely because some, but not all of those expenses were covered by the veteran's insurance. In that watershed ruling in 2016, the CAVC ruled that Congress intended the VA to step in as a "secondary payer" where other health care insurers cover only a portion of the cost of the veteran's emergency treatment and invalidated VA's regulation. Twenty-one months later, the VA issued a new regulation in an effort to comply with the Staab decision. According to the second class action lawsuit filed at the CAVC in October 2018 by NVLSP on behalf of Ms. Amanda Wolfe (Wolfe v. Wilkie), the new regulation violates the ECFA because it takes the narrow provision in the ECFA allowing VA not to reimburse veterans for copayments or "similar payments," and adds deductibles and co-insurance payments to the list of non-reimbursable expenses, which are not similar to copayments at all. About NVLSP The National Veterans Legal Services Program (NVLSP) -- http://www.nvlsp.org-- is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1981. NVLSP strives to ensure that our nation honors its commitment to its 22 million veterans and active duty personnel by ensuring they have the benefits they have earned through their service to our country. NVLSP has represented veterans in lawsuits that compelled enforcement of the law where the VA or other military services denied benefits to veterans in violation of the law. NVLSP's success in these lawsuits has resulted in more than $5.2 billion dollars being awarded in disability, death and medical benefits to hundreds of thousands of veterans and their survivors. NVLSP offers training for attorneys and other advocates; connects veterans and active duty personnel with pro bono legal help when seeking disability benefits; publishes the nation's definitive guide on veteran benefits; and represents and litigates for veterans and their families before the VA, military discharge review agencies and federal courts. [GN] UTAH: May Seeks to Certify Class of Prisoners Suffering From HCV ---------------------------------------------------------------- The Plaintiffs in the lawsuit entitled RONALD MAY, et al. v. UTAH DEPARTMENT OF CORRECTIONS, et al., Case No. 2:18-cv-00854-RJS-BCW (D. Utah), ask the Court to certify a class defined as: All current and future prisoners in UDOC custody who have been diagnosed, or will be diagnosed, with chronic HCV ("the "Plaintiff Class"). The Named Plaintiffs are prisoners incarcerated by the Utah Department of Corrections ("UDOC") who suffer from chronic hepatitis C ("HCV") and have been allegedly denied treatment with direct-acting antiviral ("DAA") that is ninety-five percent (95%) effective in preventing serious and potentially fatal outcomes, citing HCV Guidance: Recommendations for Testing, Managing, and Treating Hepatitis C, published by The American Association for the Study of Liver Disease and the Infectious Disease Society of America, 2018. Treatment with DAA drugs is the medically accepted standard of care for HCV patients, the Plaintiffs contend.[CC] The Plaintiffs are represented by: Stewart Gollan, Esq. RICKS & GOLLAN, PLLC 75 East 400 South, Suite 300 Salt Lake City, UT 84111 Telephone: (801) 413-3406 E-mail: sgollanlaw@gmail.com - and - William L. Schmidt, Esq. WILLIAM L. SCHMIDT, ATTORNEY AT LAW, P.C. P.O. Box 25001 Fresno, CA 93729 Telephone: (559) 261-2222 E-mail: legal.schmidt@gmail.com - and - R. Shane Johnson, Esq. R. SHANE JOHNSON, PLLC 24 D Street Salt Lake City, UT 84103 Telephone: (801) 364-2222 E-mail: shane@utahdefense.com The State Defendants are represented by: Michael J. Teter, Esq. Diana F. Bradley, Esq. Sean D. Reyes, Esq. UTAH ATTORNEY GENERAL 160 East 300 South, Sixth Floor P.O. Box 140856 Salt Lake City, UT 84114-0856 Telephone: (801) 366-0100 E-mail: mteter@agutah.gov dbradley@agutah.gov seanreyes@agutah.gov VALET INC: Underpays Parking Attendants, Lafleur et al. Allege -------------------------------------------------------------- MIKKEL LAFLEUR; and DIMITRI LAFLEUR, individually and on behalf of all others similarly situated, Plaintiff v. BOSTON VALET, INC.; and JOHN MANSFIELD, Defendants, Case No. 19-1098A (Mass. Super., Suffolk Cty., March 19, 2019) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs. The Plaintiffs were employed by the Defendants as parking attendant. Boston Valet, Inc. is a valet parking company in Massachusetts. [BN] The Plaintiff is represented by: Michael J. Bace, Esq. BACE LAW GROUP, LLC PO Box 9316 Boston, MA 02114 Telephone: (508) 922-8328 E-mail: mjb@bacelaw.com WALT DISNEY: Faces Gender Pay Gap Class Action in California ------------------------------------------------------------ Gene Maddaus, writing for Variety, reports that a class action law firm sued the Walt Disney Co. on April 2, alleging that the company systematically underpays its female employees. The firm of Andrus Anderson LLP, based in San Francisco, seeks to represent all women employed by the Walt Disney Studios in California since 2015. The suit claims that corporate policies -- including setting a new hire's salary based on her salary at previous employers -- has a discriminatory effect on women. The suit also alleges that Disney does not have an internal mechanism to ensure that women are not paid less than their male counterparts for the same work. "Like other companies that operate without transparency, consistency, and accountability, Disney's leadership tends to value male workers more than female workers," the suit alleges. "Taken together, Disney's compensation policies, procedures and practices are not valid, job-related, or justified by business necessity." A class action law firm sued the Walt Disney Co. on April 2, alleging that the company systematically underpays its female employees. The firm of Andrus Anderson LLP, based in San Francisco, seeks to represent all women employed by the Walt Disney Studios in California since 2015. The suit claims that corporate policies --including setting a new hire's salary based on her salary at previous employers -- has a discriminatory effect on women. The suit also alleges that Disney does not have an internal mechanism to ensure that women are not paid less than their male counterparts for the same work. "Like other companies that operate without transparency, consistency, and accountability, Disney's leadership tends to value male workers more than female workers," the suit alleges. "Taken together, Disney's compensation policies, procedures and practices are not valid, job-related, or justified by business necessity." [GN] WARNER MUSIC: Ninth Circuit Appeal Filed in Williams Class Suit --------------------------------------------------------------- Defendants Warner Music Group Corporation and Warner Bros. Records, Inc., filed an appeal from a Court ruling in the lawsuit styled Leonard Williams, et al. v. Warner Music Group Corporation, et al., Case No. 2:18-cv-09691-RGK-PJW, in the U.S. District Court for the Central District of California, Los Angeles. The appellate case is captioned as Leonard Williams, et al. v. Warner Music Group Corporation, et al., Case No. 19-80052, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiffs-Respondents LEONARD WILLIAMS, on behalf of himself and all others similarly situated; and THE LENNY WILLIAMS PRODUCTION COMPANY, a California corporation, are represented by: Douglas L. Johnson, Esq. Neville Johnson, Esq. JOHNSON & JOHNSON LLP 439 N. Canon Drive Beverly Hills, CA 90210 Telephone: (310) 975-1080 Facsimile: (310) 975-1095 E-mail: djohnson@jjllplaw.com njohnson@jjllplaw.com - and - Paul R. Kiesel, Esq. Jeffrey Alan Koncius, Esq. Nicole Ramirez, Esq. KIESEL LAW LLP 8648 Wilshire Boulevard Beverly Hills, CA 90211 Telephone: (310) 854-4444 Facsimile: (310) 854-0812 E-mail: kiesel@kiesel.law koncius@kiesel.law ramirez@kiesel.law - and - Clifford Harris Pearson, Esq. Bobby Pouya, Esq. Daniel Leon Warshaw, Esq. PEARSON SIMON WARSHAW & PENNEY, LLP 15165 Ventura Boulevard Sherman Oaks, CA 91403 Telephone: (818) 788-8300 Facsimile: (818) 788-8104 E-mail: cpearson@pswlaw.com bpouya@pswlaw.com dwarshaw@pswlaw.com Defendants-Petitioners WARNER MUSIC GROUP CORPORATION, a Delaware Corporation, and WARNER BROS. RECORDS, INC., a Delaware Corporation, are represented by: Sean Ashley Commons, Esq. Rollin Ransom, Esq. SIDLEY AUSTIN LLP 555 West 5th Street Los Angeles, CA 90013 Telephone: (213) 896-6010 Facsimile: (213) 896-6600 E-mail: scommons@sidley.com rransom@sidley.com WELLS FARGO: Court Denies McDonald's Class Certification Bid ------------------------------------------------------------ In the class action lawsuit Liane McDonald, the Plaintiff, vs. WELLS FARGO BANK, N.A., the Defendant, Case No 2:16-cv-00264-MAK (W.D. Pa.), the Hon Judge J. Kearney entered an order denying Plaintiff's motion for class certification. Wells Fargo is an American multinational financial services company headquartered in San Francisco, California, with central offices throughout the United States.[CC] WYNDHAM VACATON: Underpays Sales Representatives, Pagh Suit Says ---------------------------------------------------------------- ANDERS PAGH, individually and on behalf of all others similarly situated, Plaintiff v. WYNDHAM VACATON OWNERSHIP, INC.; and DOES 1 through 100, Defendants, Case No. 30-2019-01060077-CU-OE-CXC (Cal. Super., Orange Cty., March 29, 2019) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff Pagh worked for the Defendants as a sales representative. Wyndham Vacation Ownership, Inc. develops and markets flexible, points-based vacation ownership products. The company owns and operates vacation ownership resorts throughout United States, Canada, Mexico, the Caribbean, and the South Pacific that represent more than 23,000 individual vacation ownership units. Wyndham Vacation Ownership, Inc. was formerly known as Cendant Timeshare Resort Group, Inc. and changed its name to Wyndham Vacation Ownership, Inc. in May, 2006. The company was incorporated in 2003 and is based in Orlando, Florida. Wyndham Vacation Ownership, Inc. operates as a subsidiary of Wyndham Worldwide Corporation. [BN] The Plaintiff is represented by: Gregory P. Wong, Esq. BARKHORDARIAN LAW FIRM, PLC 6047 Bristol Parkway, Second Floor Culver City, CA 90230 Telephone: (323) 450-2777 Facsimile: (310) 215-3416 E-mail: greg@barklawfirm.com - and – Sandeep J. Shah, Esq. SHAH SHETH LLP 650 Town Center Drive, Suite 1400 Telephone: (714) 955-4551 Facsimile: (714) 966-0663 E-mail: sandeep@shahshethlaw.com XTO ENERGY: Court Certifies Class of Drilling Consultants --------------------------------------------------------- In the class action lawsuit GARY McCOLLUM, et al., the Plaintiffs, vs. XTO ENERGY, INC., the Defendant, Case no. 5:18-cv-00080-HE (W.D. Okla.), the Hon. Judge John Eaton entered an order conditionally certifying a Fair Labor Standards Act class defined as: "all Drilling Consultants and Completions Consultants who provided services to XTO Energy, Inc., in the United States and were paid a day-rate instead of time and one-half for hours worked in excess of 40 hours in a workweek in the last three years"; The Court said, "Defendant has objected to plaintiffs' proposed notice and forms. Accordingly, the parties are directed to confer in an effort to reach agreement on a form of notice, consent form, necessary deadlines, and methodology for providing notice to potential plaintiffs, and to submit, within 14 days from the filing of this order, a joint statement reflecting their agreement or, if an agreement cannot be reached, their respective positions as to same. Further, having reviewed plaintiff’s proposed notice and methodology, the parties are advised that to provide accurate and fair notice to potential plaintiffs, the notice must also inform putative class members that they may be required to testify in court in Oklahoma and that plaintiffs, if they lose the case, could be responsible for paying court costs and expenses, not including Attorney's fees."[CC] [*] Law to Expand Scope for Class Actions in Italy Approved ----------------------------------------------------------- ANSA reports that the Senate on April 3 gave definitive approval to a law expanding the scope for class-action lawsuits in Italy. The legislation was approved by the Upper House with 206 votes in favour, 44 abstentions and just one vote against. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2019. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***