/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190604.mbx C L A S S A C T I O N R E P O R T E R Tuesday, June 4, 2019, Vol. 21, No. 111 Headlines 3M COMPANY: Letzkus Sues over Defective Combat Arms Earplugs ABBVIE INC: Cleveland Bakers Fund Sues Over Humira Price-fixing ABBVIE INC: Reaches Agreement in Principle in Rubinstein Suit ABC PHONES: Does not Pay Overtime Compensation, Hardney Suit Says ADOMANI INC: Still Faces Mollik Class Action in California ADT INC: Bid to Dismiss IPO-Related Suits Underway ADT INC: Settlement Proceedings in Wireless Encryption Suit Stayed AGENTRA, LLC: Pascal Sues over Unauthorized Phone Calls AHERN RENTALS: Faces Bautista Suit Over FCRA Breach AIRCEL LLC: Headrick Moves for Certification of Class Under FLSA AIRGAS USA: Lit'l Pepper Suit Moved to Southern Dist. of California AIRSTREAM, INC: Satterly Suit Wins Conditional Class Certification ALLERGAN PLC: Dismissal of Generic Drug Pricing Suit Appealed ALLERGAN PLC: Notice of Appeal Filed in Testosterone Suit ALLTRAN FINANCIAL: Greifman Sues Over Confusing Collection Letter AMAZON.COM.KSDC LLC: Christeson Seeks Prelim. Nod of $61K Accord AMAZON.COM.KSDC: Court OKs Christeson Conditional Certification AMERICAN EAGLE: Experian Unit's Objection to Settlement Rebuffed AMERICAN FEDERATION: Faces Class Action in Illinois Over Fees ANIMAL FEEDS: Manatt Phelps Attorneys Discuss High Court Ruling APPLE INC: Bronstein Gewirtz Files Securities Fraud Class Suit APPLE INC: Faces Class Action Over iPhone 7 "Loop Disease" APPLE INC: Labaton Sucharow Files Expanded Class Action Lawsuit APPLE INC: Selling iTunes Listening Data, Class Suit Claims ARIZONA ACREAGE: Ariz. App. Affirms Summary Judgment in Monroe AVANOS MEDICAL: Appeal in Bahamas Surgery Case Still Pending AVANOS MEDICAL: Dismissal of Jackson Class Suit Appealed BANK OF AMERICA: Castillo Seeks to Certify Class & Subclass BARCLAYS: Judge Tosses Debt Collection Class Action BARTON NINE: Faces Class Action Over Incorrect GST Charges BCI COCA-COLA: Cohen Labor Suit Removed to C.D. Cal. BOSMAN TRUCKING: Johnson Suit Alleges FLSA Violation CACERES INTERIOR: Gomez Sues Over Unpaid Overtime Wages CALIFORNIA: McClenton Files Petition for Writ of Certiorari CAWLEY & BERGMANN: Placeholder Bid for Class Certification Filed CBC RESTAURANT: Pardue et al. Suit Moved to C.D. California CELGENE CORP: Bid to Dismiss NJ Consolidated Class Suit Underway CELLCO PARTNERSHIP: Court Vacates Scheduling Order in Rosenbohm CENTENE CORPORATION: Dennis Sues Over Blind-Inaccessible Website CHARTER COMMUNICATIONS: Harper Sues Over Labor Code Breach CHECKERS DRIVE-IN: Lodge Sues Over Unsolicited Marketing CHEMOURS COMPANY: Accrues $22MM for Leach Settlement at March 31 CITIGROUP INC: Faces Consolidated VRDO-Related Class Suit CITY OF CLEVELAND: Laborers International Sues Over Unpaid Wages CJS SOLUTIONS: Court Refuses to Approve Settlement in Borup COMMUNITY HEALTH: To Appeal Class Certification Ruling in "Zwick" COMPASS LENDING: Court Strikes S. Naiman's 1st Amended Complaint CONVERGENT OUTSOURCING: Sheean Moves to Certify Three Classes COOK COUNTY, IL: Brown, et al. Seek Class Certification COOK COUNTY, IL: Howard et al. Seek Class Certification CUNNINGHAM RESTAURANT: Leslie Suit Alleges FLSA Violation CVS HEALTH: Court Dismisses Kroessler's FDCA Suit DEUTSCHE BANK: Questions in L. Lima Suit Certified to Hawaii Ct. DISTRICT OF COLUMBIA: Arbitration Stay in WTU's Suit Affirmed DISTRICT OF COLUMBIA: Court Narrows Claims in Guns Seizure Suit DON VITO: Court Denies Preliminary Approval of Settlement in Camilo DR PEPPER: Kilpatrick Townsend Atorney Discusses Court Ruling DXP ENTERPRISES: Warden Seeks Overtime Pay for Safety Consultants ENCORE CAPITAL: Proposed Board Amendments Misleading, Suit Says EQUINOX HOLDINGS: Porter Suit Moved to N.D. California EVANGER'S DOG: Court Dismisses Defamation Counterclaim in Mael EXPRESS SCRIPTS: Harrod Seeks to Certify Class in Record Fees Suit FIRSTSOURCE ADVANTAGE: Ormaza Sues over Fair Debt Collection FITBIT INC: Court Orders Post-Distribution Accounting in Robb Suit FORGE RESTAURANT: Pavon Seeks Minimum Wages for Tipped Employees FRESNO DEPUTY: Court Extends Time to File Response in Campos Suit GENERAL MOTORS: Faces Class Action Over Transmission Problems GLOBAL TEL: Fifth Circuit Appeal Filed in Alexander RICO Suit GODIVA CHOCOLATIER: Bradley Arant Attorneys Discuss Court Ruling GRUPO HOTELERO: Mata Files Suit for Unlawful Trafficking HARNEY & SONS: Fischler Sues Over Blind-Inaccessible Website HARVEST RESTAURANT: Underpays Tipped Employees, Reynolds Claims HEALTHFIRST INC: Lacario Sues Over Unpaid Overtime Wages HOSOPO CORP: Court Allows TCPA Class Action to Proceed HOT POT FLUSHING: Chovon Files Suit Over Time-Shaving Practices HUNTINGTON INGALLS: Herndon Suit Asserts ERISA Violation HYUNDAI MOTOR: Lieff Cabraser, Baron & Budd File Class Action IKEA US RETAIL: Miller Suit Asserts Gender Discrimination INTERNATIONAL PAPER: Class Certification Sought in Slocum Suit INTUIT INC: Kehiaian Sues Over Deceptive Business Practices IRONCLAD ENERGY: Certification of Pumpdown Supervisors Class Sought ITT AEROSPACE: Toribio Hits Unpaid Wages, Missed Breaks IVY ENTERPRISES: Han Seeks Unpaid Overtime Compensation JERRY W. BAILEY: Court Decertify Provisional Class in Koch JIFFY LUBE: Turizo Sues over Unwanted Text Messages JIMMY JAZZ: Pierre Suit Asserts ADA Violation JOHNSON & JOHNSON: Carter Suit Moved to C.D. California JOHNSON & JOHNSON: Castro Suit Moved to C.D. California JOHNSON & JOHNSON: DeBoth Suit Moved to C.D. California JOHNSON & JOHNSON: Foster Suit Moved to C.D. California JOHNSON & JOHNSON: Franco Suit Moved to C.D. California JOHNSON & JOHNSON: Grijalva Suit Moved to C.D. California JOHNSON & JOHNSON: Groff Suit Moved to C.D. California JOHNSON & JOHNSON: Hagemann Suit Moved to C.D. California JOHNSON & JOHNSON: Love Suit Moved to C.D. California JOHNSON & JOHNSON: Myers Suit Moved to C.D. California JOHNSON & JOHNSON: Newberry Suit Moved to C.D. California JOHNSON & JOHNSON: Nickaloff Suit Moved to C.D. California JOHNSON & JOHNSON: Removes Abbott Suit to C.D. California JOHNSON & JOHNSON: Removes Lane Suit to N.D. California JOHNSON & JOHNSON: Removes Peoples Suit to C.D. California JOHNSON & JOHNSON: Removes Schade Suit to C.D. California JOHNSON & JOHNSON: Tyson Suit Moved to C.D. California JP MORGAN: Appeals Decision in McShannock Suit to Ninth Circuit JUST ENERGY: J. Collins' Suit Remanded to Calif. Superior Court JVK OPERATIONS: Montiel-Flores Sues Over Unpaid Compensations KAUFMAN COUNTY, TX: Sued Over High Property Appraisals KIRCHHOFF AUTOMOTIVE: Green Files Suit Over Time-Shaving Practices KRYPTONITE ENERGY: Gordon Seeks Unpaid Minimum, Overtime Wages LABORATORY CORP: Kawa Orthodontics Sues Over Unsolicited Facsimiles LABORATORY CORP: Still Defends Feckley Class Suit over Commissions LABORATORY CORP: Still Defends Haro Suit over Labor Code Breaches LTD FINANCIAL: Certification of Class Sought in Norton Suit LVNV FUNDING: Arbitration Ruling in Williams-Hopkins Suit Affirmed MARRIOTT INC: Davidson Named to Plaintiffs Steering Committee MATRIX WARRANTY: Geiger Suit Asserts TCPA Violation MCCALL SERVICE: Technicians Seeks Unpaid Overtime Wages MDL 2047: Court Denies Krupnick's Bid for Immediate Fee Disbursal MDL 2741: Perry v. Monsanto over Roundup Sales Consolidated MDL 2741: Yeager v. Monsanto over Roundup Sales Consolidated MEDELY INC: Hensley Suit Alleges Labor Code Violation MELLANOX TECHNOLOGIES: Faces Class Action Over Nvidia Acquisition MELLANOX TECHNOLOGIES: Stein Balks at Merger Deal with NVDIA MERCY HOSPITAL: Loses Bid to Dismiss Minors' Tort Claims MID-AMERICA APARTMENT: Appeal from Class Status in "Cleven" Pending MIDLAND CREDIT: Court OKs Renewed Arbitration Bid in J. Lance Suit MIZUHO BANK: Lack's Class Cert. Bid Denied MONDELEZ INTERNATIONAL: Harper Files False Labeling Suit in Calif. MONOGRAM AEROSPACE: Lopez Sues Over Calif. Labor Code Violations MONSANTO COMPANY: Armstrong Sues over Sale of Herbicide Roundup MONSANTO COMPANY: Delsucs Sue over Sale of Herbicide Roundup MONSANTO COMPANY: Munkres Sues over Sale of Herbicide Roundup MONSANTO COMPANY: Smiths Sue over Sale of Herbicide Roundup MONSANTO COMPANY: Walker Sues over Sale of Herbicide Roundup MORGAN STANLEY: Settles Ex-Financial Advisor's Class Action NATIONAL COLLEGIATE: Kelly Files Suit for Negligence NATIONAL COLLEGIATE: Kerns Sues Over Student-Athletes' Injuries NAVIENT CORP: Still Defends Consolidated Class Suit in New Jersey NAVIENT CORP: Still Faces Lord Abbett Consolidated Class Lawsuit NEW MEXICO: Cummings Files Petition for Writ of Certiorari NEW ORLEANS, LA: Caluda et al. Seek to Certify Class Action NIAGARA DISTRIBUTORS: Removes Rodriguez Suit to S.D Florida NORTHLAND GROUP: Johnson Sues over Debt Collection Practices NUTANIX INC: Maroun Files Class Action Over False Reports NZONE GUIDANCE: Hiser's Operators and Drillers Classes Certified OMNICELL INC: Mazya Plaintiff Files Amended Complaint ONEMAIN HOLDINGS: Executes Settlement for Galestan Securities Suit OXY USA: Court Won't Review Remand Denial in Cooper Clark's Suit P&S SELECT: Franco Seeks Unpaid Minimum and Overtime Wages P.F. CHANG'S: Wilson Elser Attorney Discusses Court Ruling PAN E VINO: Gonzalez Seeks Damages Over Unpaid Wages PROGRESSIVE SELECT: William South Suit Moved to S.D. Florida PUPPY MANAGEMENT: Does not Properly Pay Workers, DeRoss Says RAINBOW NAILS: Court OKs Conditional Certification in Yang Suit RBC INSURANCE: Faces Class Action Over Vacation, Holiday Pay RCI HOSPITALITY: Hoffman Sues Over Share Price Drop RE/MAX HOLDINGS: 3 Antitrust Class Action Complaints Underway REAL CARE: Mitchell Seeks OT Pay for Home Health Aids REWALK ROBOTICS: Court Dismisses W. Yan's Securities Suit RICHMOND, VA: Court Narrows Claims in V. White's FLSA Suit ROUGE VALLEY: Blaney McMurtry Attorneys Discuss Court Ruling SCANA CORP: KBC Files Damages Claim for Breach of Fiduciary Duties SCR MEDICAL: Goodlet Seeks Unpaid Overtime Pay Under FLSA SEAWORLD: $11.5MM Passes Class Action Settlement Gets Court OK SHARP REES-STEALY: Nace Seeks Unpaid Wages, Rest Period Premiums SPARK ENERGY: Appeal in Gillis Class Suit Still Pending SPARK ENERGY: Confidential Settlement Reached in Richardson Suit SPARK ENERGY: Discovery Underway in Veilleux Case SPARK ENERGY: Mediation Ongoing in Jurich Class Action SPERIAN ENERGY: I. Brady's ICFA Suit Transferred to C.D. Ill. STANCE, INC: Website not Accessible to Blind People, Olsen Says STARBUCKS CORP: George Sues Over Exposure to Toxic Chemicals STARWOOD: Israeli Bondholders File Class Action STE-MARTHE-SUR-LE-LAC: Residents Mull Class Action Over Flooding STONEWATER ROOFING: Coker Sues Over Unpaid Overtime SUNEDISON INC: June 17 Class Action Opt-Out Deadline Set SUNPOWER CORP: Tobar Suit Alleges FLSA Violations SUNRUN INC: Loftus Suit Alleges TCPA Violation TATE & KIRLIN: Certification of Class Sought in Menear Suit TFORCE LOGISTICS: Lim Suit Removed to C.D. California TPUSA INC: Does not Properly Pay Workers, Headspeth Suit Says TRW AUTOMOTIVE: Rubio et al Sue over Defective Airbag Control Unit U.S. SOCCER: Motion to Stay Pay Discrimination Class Suit Denied ULTIMATE SOFTWARE: Kessler Files Suit Over Sale to Hellman VESCIO THREADING: Sotelo Suit Alleges Labor Code Violations VISA INC: Appeals Launched in Canadian Merchant Litigation VOCUS GROUP: Faces Shareholder Class Action WALMART INC: Haskins Seeks Unpaid Vacation Pay WATERSTONE FINANCIAL: Court Vacates July 2017 Arbitration Award WATERSTONE FINANCIAL: District Court Okays Werner Suit Settlement WATERSTONE MORTGAGE: Underpays Loan Originators, Johnson Claims WEINERT ENTERPRISES: Anderson Seeks to Certify Opt-out Class WELLS FARGO: Settlement in Auto Insurance Suit Underway WELLS FARGO: Still Faces Class Suit over ATM Access Fee WESTERN REFINING: Removes Hall Suit to Central Dist. of California WESTERN UNION: Smallen Trust Appeals D. Colo. Ruling to 10th Cir. WINDHAM PROFESSIONALS: Third Circuit Appeal Filed in James Suit ZF TRW: Car Owners Sue Over Defective Air Bag Control Units [*] Missouri Bill Modifies Class Action Joinder, Venue Rules ********* 3M COMPANY: Letzkus Sues over Defective Combat Arms Earplugs ------------------------------------------------------------ The case, JIMMY LEE LETZKUS, the Plaintiff, vs. 3M COMPANY, AEARO HOLDINGS, LLC, AEARO INTERMEDIATE, LLC, AEARO, LLC and AEARO TECHNOLOGIES, LLC, the Defendants, Case No. 3:19-cv-01540-MCR-EMT (N.D. Fla., May 24, 2019), seeks to hold 3M liable for hearing loss or damage Plaintiff allegedly suffered while serving variously in the U.S. military, including during foreign conflicts. The Plaintiff contends that Combat Arms TM Earplugs, Version 2 ("CAEv2") manufactured and sold by Aearo were defectively designed and failed to provide adequate hearing protection. 3M denies these allegations. CAEv2, designed by Aearo in close collaboration with the U.S. military, represented a revolutionary breakthrough in hearing protection for service members. CAEv2 helped servicemembers better maintain situational awareness (e.g., to hear nearby voice commands) while also maintaining some protection from gunfire and other higher decibel sounds. CAEv2 met the U.S. military's specifications and helped the military provide hearing protection to service members. Despite knowing of the dangerous defects in its earplugs, Defendant sold the Dual-ended Combat ArmsTM earplugs to the branches of the U.S. military for more than a decade without providing the U.S. military and/or Plaintiff with any warning of said defects, causing Plaintiff and other service members similar permanent injuries, such as hearing loss.[BN] Attorneys for the Plaintiff: Michael W. Gaines, esq. Tim L. Bowden, esq. LAW OFFICES OF TIM BOWDEN 306 Northcreek Blvd., Suite 200 Goodlettsville, TN 37072 Telephone: (615) 859-1996 Facsimile: (615) 859-1921 E-mail: mwgaines01@gmail.com bowden_law@bellsouth.net bowden1megan@gmail.com ABBVIE INC: Cleveland Bakers Fund Sues Over Humira Price-fixing --------------------------------------------------------------- Cleveland Bakers and Teamsters Health and Welfare Fund, on behalf of itself and all those similarly situated, Plaintiff, v. Abbvie Inc., Abbvie Biotechnology Ltd. and Amgen Inc., Defendants, Case No. 19-cv-03168 (N.D. Ill., May 10, 2019), seeks to recover overcharges resulting from the anti-competitive actions of the Defendants over the manufacture and sale of "Humira" pursuant to the Hatch-Waxman Act and the Biologics Price Competition and Innovation Act. Humira is a medication used to treat rheumatoid arthritis, psoriatic arthritis, ankylosing spondylitis, Crohn's disease, ulcerative colitis, psoriasis, hidradenitis suppurativa, uveitis, and juvenile idiopathic arthritis. AbbVie allegedly used the patent system to make the costs to any potential competitor so high that the would-be competitor would not become an actual competitor. It allegedly entered into deals with manufacturers of "adalimumab," Humira's bio-similar and delayed their entry until various dates in 2023. Cleveland Bakers and Teamsters Health and Welfare Fund is a multiemployer trust fund established to provide health and welfare benefits to collectively bargained members. [BN] Plaintiff is represented by: Jason Zweig, Esq. HAGENS BERMAN - NEW YORK OFFICE 555 Fifth Ave, Suite 1700 New York, NY 10017 Tel: (212) 752-5455 Email: jasonz@hbsslaw.com - and - Thomas M. Sobol, Esq. Lauren G. Barnes, Esq. Greg Arnold, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 55 Cambridge Parkway, Suite 301 Cambridge, MA 02142 Tel: (617) 482-3700 Fax: (617) 482-3003 Email: tom@hbsslaw.com laurenb@hbsslaw.com - and - Steve W. Berman, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 Email: steve@hbsslaw.com - and - Joseph H. Meltzer, Esq. Terence S. Ziegler, Esq. Donna Siegel Moffa, Esq. KESSLER TOPAZ MELTZER & CHECK LLP 280 King of Prussia Road Radnor, PA 19087 Tel: (610) 667-7706 Fax: (610) 667-7056 Email: jmeltzer@ktmc.com tziegler@ktmc.com dmoffa@ktmc.com ABBVIE INC: Reaches Agreement in Principle in Rubinstein Suit ------------------------------------------------------------- AbbVie Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2019, that parties in the lawsuit styled, Rubinstein, et al. v Gonzalez, et al., have reached an agreement in principle to settle this lawsuit. No further updates were provided in the Company's SEC report. In November 2014, five individuals filed a putative class action lawsuit, Rubinstein, et al. v Gonzalez, et al., on behalf of purchasers and sellers of certain Shire plc (Shire) securities between June 20 and October 14, 2014, against AbbVie and its chief executive officer in the United States District Court for the Northern District of Illinois alleging that the defendants made and/or are responsible for material misstatements in violation of federal securities laws in connection with AbbVie's proposed transaction with Shire. In April 2019, the parties reached an agreement in principle to settle this lawsuit. AbbVie Inc. discovers, develops, manufactures, and sells pharmaceutical products worldwide. The company offers HUMIRA, a therapy administered as an injection for autoimmune diseases; IMBRUVICA, an oral therapy for treating chronic lymphocytic leukemia; and VIEKIRA PAK, an interferon-free therapy, with or without ribavirin, to treat adults with genotype 1 chronic hepatitis C. The company was incorporated in 2012 and is based in North Chicago, Illinois. ABC PHONES: Does not Pay Overtime Compensation, Hardney Suit Says ----------------------------------------------------------------- RON HARDNEY, MANUEL PANNGASIRI, and MICHELLE SALWAY, individually and on behalf of all others similarly situated, Plaintiffs, v. ABC PHONES OF NORTH CAROLINA, Defendant, Case No. 3:19-cv-12722 (D. N.J., May 20, 2019) is an action under the Fair Labor Standards Act of 1938 ("FLSA") on behalf themselves and all current and former non-exempt, hourly-paid Store Managers ("SMs") who work and/or worked for ABC Phones of North Carolina, Inc. ("ABC") within the United States from the later of May 20, 2016 or the date in which Defendant reclassified its SM position from exempt to hourly, non-exempt through the date of final judgment. ABC violated the FLSA by requiring Plaintiffs and the Collective Action Members to perform work "off the clock" and failing to pay them the full extent of their overtime compensation. Plaintiffs and the Collective Action Members are entitled to unpaid overtime compensation from ABC for all hours worked by them in excess of 40 hours in a workweek, and are also entitled to liquidated damages pursuant to the FLSA, says the complaint. Plaintiffs were employed by Defendant and regularly performed work as SMs for Defendant's benefit. ABC Phones of North Carolina, Inc. is a North Carolina corporation with its principal place of business located in Raleigh, North Carolina.[BN] The Plaintiff is represented by: Michael Palitz, Esq. SHAVITZ LAW GROUP, P.A 830 3rd Avenue, 5th Floor New York, NY 10022 Phone: (800) 616-4000 Facsimile: (561) 447-8831 Email: mapalitz@shavitzlaw.com - and - Gregg I. Shavitz, Esq. Camar R. Jones, Esq. Tamra C. Givens, Esq. SHAVITZ LAW GROUP, P.A. 951 Yamato Road, Suite 285 Boca Raton, FL 33431 Phone: (561) 447-8888 Facsimile: (561) 447-8831 Email: gshavitz@shavitzlaw.com cjones@shavitzlaw.com tgivens@shavitzlaw.com ADOMANI INC: Still Faces Mollik Class Action in California ---------------------------------------------------------- ADOMANI, Inc. continues to defend itself against a purported class action lawsuit captioned M.D. Ariful Mollik v. ADOMANI, Inc. et al., Case No. RIC 1817493, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2019. On August 23, 2018, the lawsuit was filed in the Superior Court of the State of California for the County of Riverside against us, certain of our executive officers, and the two underwriters of our offering of common stock under Regulation A in June 2017. This complaint alleges that documents related to our offering of common stock under Regulation A in June 2017 contained materially false and misleading statements and that all defendants violated Section 12(a)(2) of the Securities Act of 1933, as amended (the "Securities Act"), and that we and the individual defendants violated Section 15 of the Securities Act, in connection therewith. The plaintiff seeks on behalf of himself and all class members: (i) certification of a class under California substantive law and procedure; (ii) compensatory damages and interest in an amount to be proven at trial; (iii) reasonable costs and expenses incurred in this action, including counsel fees and expert fees; (iv) awarding of rescission or rescissionary damages; and (v) equitable relief at the discretion of the Court. On November 9, 2018, in response to a demurrer filed by defendant Network 1 Financial Securities, Plaintiff filed a first amended complaint, which was substantially similar to the original complaint but refined certain allegations regarding the alleged material omissions that form the basis of the complaint. Defendants demurred to the first amended complaint. The court heard defendants' demurrers to the first amended complaint on January 30, 2019. At this hearing the court granted plaintiff leave to file a second amended complaint. Plaintiff filed a second amended complaint on January 31, 2019. The second amended complaint attempts to substitute in two putative class plaintiffs. Defendants jointly demurred to the second amended complaint on March 4, 2019. This demurrer was set for hearing on May 7, 2019. ADOMANI said, "We believe that the purported class action lawsuit is without merit and intend to vigorously defend the action." ADOMANI, Inc. provides zero-emission electric and hybrid drivetrain systems for integration in new and existing school buses and medium to heavy-duty commercial fleet vehicles. ADOMANI, Inc. was founded in 2012 and is headquartered in Corona, California. ADT INC: Bid to Dismiss IPO-Related Suits Underway -------------------------------------------------- ADT Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 7, 2019, for the quarterly period ended March 31, 2019, that the motions to dismiss in the case entitled, In re ADT Inc. Shareholder Litigation and Perdomo v ADT Inc., are fully briefed, and defendants have requested argument on the motions. Five substantially similar shareholder class action lawsuits related to the January 2018 initial public offering (IPO) of ADT Inc. common stock were filed in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida in March, April, and May 2018 and have been consolidated for discovery and trial and entitled In re ADT Inc. Shareholder Litigation. The lead plaintiffs seek to represent a class of similarly situated shareholders and assert claims for alleged violations of the Securities Act of 1933, as amended ("Securities Act"). The plaintiffs allege that the Company defendants violated the Securities Act because the registration statement and prospectus used to effectuate the IPO were false and misleading in that they allegedly misled investors with respect to litigation involving the Company, the Company's efforts to protect its intellectual property, and the competitive pressures faced by the Company. The defendants moved to dismiss the consolidated complaint in October 2018. The Court has not yet set a date for argument on the motions. A similar shareholder class action lawsuit entitled Perdomo v ADT Inc., also related to the January 2018 IPO was filed in the U.S. District Court for the Southern District of Florida in May 2018, for which the plaintiff filed an Amended Complaint in January 2019 as directed by the Court. The defendants moved to dismiss the Amended Complaint in March 2019. The motions are fully briefed, and defendants have requested argument on the motions. ADT Inc. provides security and automation solutions for homes and businesses in the United States and Canada. It provides a range of fire detection, fire suppression, video surveillance, and access control systems to residential, commercial, and multi-site customers. The company was formerly known as Prime Security Services Parent, Inc. and changed its name to ADT Inc. in September 2017. ADT Inc. was founded in 1874 and is headquartered in Boca Raton, Florida. ADT INC: Settlement Proceedings in Wireless Encryption Suit Stayed ------------------------------------------------------------------ ADT Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 7, 2019, for the quarterly period ended March 31, 2019, that final approval of the settlement in Wireless Encryption Litigation remains pending as the case has been stayed. The Company is subject to five class action claims regarding wireless encryption in certain ADT security systems. Jurisdictionally, three of the five cases are in Federal Court (in districts within Illinois, Arizona, and California), and both of the remaining two cases are in Florida State Court (both in Palm Beach County Circuit Court). Each of the five plaintiffs brought a claim under the respective state's consumer fraud statute alleging that The ADT Corporation and each of its consolidated subsidiaries prior to the consummation of the ADT Acquisition made misrepresentations and material omissions in its advertising regarding the unencrypted wireless signal pathways in certain security systems monitored by The ADT Corporation. The complaints in all five cases further allege that certain security systems monitored by The ADT Corporation are not secure because the wireless signal pathways are unencrypted and can be easily hacked. In January 2017, the parties agreed to settle all five class action lawsuits. In October 2017, the U.S. District Court for the Northern District of California entered an order granting preliminary approval of the settlement. Notice to class members was issued in November 2017, and the settlement is currently in the administration process. A fairness hearing regarding the settlement was conducted in February 2018. The Court took the matter under advisement and subsequently stayed the settlement proceedings pending an appellate ruling on a related legal issue. The deadline for filing claims expired in February 2018. Final approval of the settlement remains pending as a result of the stay. The settlement administrator will not pay any claims until the Court enters an order granting final approval of the settlement. No further updates were provided in the Company's SEC report. ADT Inc. provides security and automation solutions for homes and businesses in the United States and Canada. It provides a range of fire detection, fire suppression, video surveillance, and access control systems to residential, commercial, and multi-site customers. The company was formerly known as Prime Security Services Parent, Inc. and changed its name to ADT Inc. in September 2017. ADT Inc. was founded in 1874 and is headquartered in Boca Raton, Florida. AGENTRA, LLC: Pascal Sues over Unauthorized Phone Calls ------------------------------------------------------- The case, LAWRENCE PASCAL, individually and on behalf of all others similarly situated, the Plaintiff, vs. AGENTRA, LLC, a Texas limited liability company, DATA PARTNERSHIP GROUP, LP, a Georgia limited partnership, HEALTH AND LIFE INSURANCE SERVICES, a California corporation, ALEXIS NUNEZ, an individual d/b/a WE BUY IT ASAP, the Defendants, Case No. 4:19-cv-02418-DMR (N.D. Cal., May 3, 2019), seeks to stop Defendants' illegal practice of making unauthorized calls that play prerecorded voice messages to the telephones of consumers nationwide, and to obtain redress for all persons injured by their conduct. The Defendants are businesses that market to consumers and property owners. As a primary part of their marketing efforts, the Defendants and their agents placed thousands of automated calls employing a prerecorded voice message to cell phones and residential phones nationwide. Unfortunately, Defendants did not obtain consent prior to placing these calls and, therefore, are in violation of the Telephone Consumer Protection Act. According to the complaint, Defendants' use of technological equipment to spam consumers with its advertising on a grand scale. By placing the calls at issue, Defendants have violated the privacy and statutory rights of Plaintiff and the Class. The Plaintiff therefore seeks an injunction requiring Defendants to stop its unconsented calling, as well as an award of actual and statutory fines to the Class members, together with costs and reasonable attorneys' fees.[BN] Attorney for the Plaintiff and the Class: Mark L. Javitch, Esq. JAVITCH LAW OFFICE 480 S. Ellsworth Ave San Mateo, CA 94401 Telephone: 650-781-8000 Facsimile: 650-648-0705 E-mail: mark@javitchlawoffice.com AHERN RENTALS: Faces Bautista Suit Over FCRA Breach --------------------------------------------------- JUAN BAUTISTA, individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. AHERN RENTALS, INC., a Nevada corporation; and DOES 1 through 100, inclusive; Defendants, Case No. 19STCV17467 (Cal. Super. Ct., Los Angeles Cty., May 20, 2019) seeks compensatory and punitive damages due to Defendants' willful or grossly negligent conduct and its systematic and willful violation of, inter alia, the Fair Credit Reporting Act ("FCRA"), Investigative Consumer Reporting Agencies Act ("ICRAA"), Consumer Credit Reporting Agencies Act ("CCRAA"), and California's Unfair Competition Law ("UCL"). The Defendants routinely obtain and use information from background reports in connection with their hiring processes without complying with state and federal mandates for doing so, asserts the complaint. As part of this practice, Defendants provide the requisite disclosure to applicants in their employment application. However, the disclosure that Defendants provide to Plaintiff and each Class Member as part of their hiring process is noncompliant with state and federal statutes, it adds. The Defendants have violated the requirements under these statutes by failing to provide proper disclosures. The procurement of background reports for employment purposes is subject to strict disclosure requirements under federal law pursuant to the FCRA and under California law pursuant to the ICRAA and CCRAA, the complaint says. Plaintiff applied for a job with Defendants by completing an online employment application on about May 3, 2017, in Los Angeles County, California. AHERN RENTALS, INC. was and is a Nevada corporation, and was, at all times relevant to this complaint, engaged in commercial transactions throughout this county, the State of California and the various states of the United States of America.[BN] The Plaintiffs are represented by: DOUGLAS HAN, ESQ. SHUNT TATAVOS-GHARAJEH, ESQ. DANIEL J. PARK, ESQ. JUSTICE LAW CORPORATION 751 N. Fair Oaks Avenue, Suite 101 Pasadena, CA 91103 Phone: (818) 230-7502 Facsimile: (818)230-7259 AIRCEL LLC: Headrick Moves for Certification of Class Under FLSA ---------------------------------------------------------------- The Plaintiff in the lawsuit captioned JOSHUA TORREY HEADRICK, Individually, and on behalf of himself and others similarly situated v. AIRCEL, LLC, a Delaware Limited Liability Corporation, Case No. 3:18-cv-00389-PLR-HBG (E.D. Tenn.), moves the Court to issue an order: (1) authorizing this action to proceed as an Fair Labor Standards Act ("FLSA") collective action for the Defendant's overtime compensation violations at their Maryville, Tennessee fabricating facility at any time during the applicable limitations period covered by the Collective Action Complaint (i.e. two (2) years for FLSA violations and three (3) years for willful FLSA violations) including up to the date of final judgment on behalf of the Plaintiff and other similarly situated current and former hourly-paid factory employees who join this action pursuant to the FLSA; (2) directing the Defendant to immediately provide Plaintiff's counsel a computer-readable file containing the names (last names first), last known physical addresses, last known e-mail addresses, social security numbers, dates of employment and last known telephone numbers of all putative class members during the last three years; (3) providing that Court-approved notice be posted at the Maryville, Tennessee fabricating facility, enclosed with Defendant's currently-employed putative class members' next regularly-scheduled paychecks or stubs, and be mailed and emailed to Defendant's hourly-paid factory employees during the past three years or currently employs so they can timely assert their claims as part of this litigation; (4) tolling the putative class' statute of limitations as of the date this Motion is fully briefed (except for those who have already opted into this action); and (5) deeming Opt-in the Plaintiffs' Consent Forms to be "filed" on the dates they are postmarked (excluding those who opted in prior to Court-supervised Notice being sent).[CC] The Plaintiff is represented by: Gordon E. Jackson, Esq. James L. Holt, Jr., Esq. J. Russ Bryant, Esq. Paula R. Jackson, Esq. Robert E. Turner, IV, 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 jholt@jsyc.com rbryant@jsyc.com pjackson@jsyc.com rturner@jsyc.com The Defendant is represented by: Steven E. Seasly, Esq. Ann E. Knuth, Esq. HAHN LOESER & PARKS LLP 200 Public Square, Suite 2800 Cleveland, OH 44114-2316 Telephone: (216) 621-0150 Facsimile: (216) 241-2824 E-mail: sseasly@hahnlaw.com aknuth@hahnlaw.com - and - John M. Kizer, Esq. GENTRY, TIPTON & McLEMORE, P.C. P.O. Box 1990 Knoxville, TN 37901-1990 Telephone: (865) 525-5300 E-mail: jmk@tennlaw.com AIRGAS USA: Lit'l Pepper Suit Moved to Southern Dist. of California ------------------------------------------------------------------- The case, Lit'l Pepper Gourmet, Inc. a California corporation, Individually and on behalf of those similarly situated, the Plaintiff, vs. Airgas USA, LLC, a Delaware limited liability company, the Defendant, Case No. 37-02019-00016827-CU-BT-CTL, was removed from the Superior Court of the State of California, to the U.S. District Court for the Southern District of California (San Diego) on May 3, 2019. The Southern District of California Court Clerk assigned Case No. 3:19-cv-00837-LAB-AGS to the proceeding. The suit alleges deceptive trade practices related violation. The case is assigned to the Hon. Chief Judge Larry Alan Burns. Airgas USA 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.[BN] Attorneys for the Plaintiff: John Kenneth Landay, Esq. LANDAY ROBERTS LLP 450 J. St. No. 5291 San Diego, CA 92101 Telephone: (619) 230-5712 E-mail: jlanday@landayroberts.com Attorneys for the Defendant: Kanika D. Corley, Esq. SEDGWICK DETERT MORAN & ARNOLD LLP 801 S Figueroa St., 19th Floor Los Angeles, CA 90017-5556 Telephone: (213) 426-6900 Facsimile: (213) 426-6921 E-mail: kanika.corley@sdma.com AIRSTREAM, INC: Satterly Suit Wins Conditional Class Certification ------------------------------------------------------------------ In the class action lawsuit MARK SATTERLY, et al., the Plaintiffs, vs. AIRSTREAM, INC., the Defendant, Case No. 3:19-cv-00032-WHR (S.D. Ohio), the Hon. Judge Water H. Rice entered an order: 1. sustaining Plaintiffs' unopposed motion for conditional class certification and court-supervised notice to potential opt-in plaintiffs; and 2. setting forth procedures governing Plaintiffs' emergency motion for a protective, order and the immediate granting of Plaintiffs' motion for issuance of notice, additional notice, corrective actions, preliminary injunction, and sanctions. [CC] ALLERGAN PLC: Dismissal of Generic Drug Pricing Suit Appealed ------------------------------------------------------------- Allergan plc said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 7, 2019, for the quarterly period ended March 31, 2019, that the ERISA plaintiffs have taken an appeal from the court's decision in granting the company's motion to dismiss the complaint in the Generic Drug Pricing Securities and the Employee Retirement Income Security Act of 1974 (ERISA) Litigation to the Third Circuit Court of Appeals. Putative classes of shareholders and two individual opt-out plaintiffs filed class action lawsuits against the Company and certain of its current and former officers alleging that defendants made materially false and misleading statements between February 2014 and November 2016 regarding the Company's internal controls over its financial reporting and that it failed to disclose that its former Actavis generics unit had engaged in illegal, anticompetitive price-fixing with its generic industry peers. These lawsuits have been consolidated in the U.S. District Court for the District of New Jersey. The complaints seek unspecified monetary damages. On April 11, 2019, the court heard oral arguments on the Company's motion to dismiss the complaint. In addition, class action complaints have been filed premised on the same alleged underlying conduct that is at issue in the securities litigation but that assert claims under the Employee Retirement Income Security Act of 1974 ("ERISA"). These complaints have been consolidated in the district court in New Jersey. The court granted the Company's motion to dismiss this complaint. The ERISA plaintiffs have appealed this decision to the Third Circuit Court of Appeals. Allergan plc, a pharmaceutical company, develops, manufactures, and commercializes branded pharmaceutical, device, biologic, surgical, and regenerative medicine products worldwide. The company operates in three segments: US Specialized Therapeutics, US General Medicine, and International. The company was formerly known as Actavis plc and changed its name to Allergan plc in June 2015. Allergan plc was founded in 1983 and is headquartered in Dublin, Ireland. ALLERGAN PLC: Notice of Appeal Filed in Testosterone Suit --------------------------------------------------------- Allergan plc said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 7, 2019, for the quarterly period ended March 31, 2019, that the plaintiffs in the Testosterone Replacement Therapy class action suit have filed a Notice of Appeal to the U.S. Court of Appeals for the Seventh Circuit from the lower court's order granting defendants' motion for summary judgment. Subsidiaries of the Company were named in a class action complaint filed on behalf a putative class of third-party payers in the U.S. District Court for the Northern District of Illinois. The suit alleges that the Company's subsidiaries violated various laws including the federal the Racketeer Influenced and Corrupt Organizations (RICO) statute and state consumer protection laws in connection with the sale and marketing of Androderm(R). The class plaintiffs seek to obtain certain equitable relief, including injunctive relief and an order requiring restitution and/or disgorgement, and to recover damages and multiple damages in an unspecified amount. While the lawsuit is ongoing, the court has denied plaintiff's class certification motion. On February 14, 2019, the court granted Defendants' motion for summary judgment, dismissing the case in its entirety. On March 19, 2019, plaintiffs filed a Notice of Appeal to the Seventh Circuit. Allergan plc, a pharmaceutical company, develops, manufactures, and commercializes branded pharmaceutical, device, biologic, surgical, and regenerative medicine products worldwide. The company operates in three segments: US Specialized Therapeutics, US General Medicine, and International. The company was formerly known as Actavis plc and changed its name to Allergan plc in June 2015. Allergan plc was founded in 1983 and is headquartered in Dublin, Ireland. ALLTRAN FINANCIAL: Greifman Sues Over Confusing Collection Letter ----------------------------------------------------------------- Sarah Greifman, individually and on behalf of all others similarly situated, Plaintiff, v. Alltran Financial, LP, Defendant, Case No. 7:19-cv-04689 (S.D. N.Y., May 21, 2019) seeks to recover for violations of the Fair Debt Collection Practices Act ("FDCPA"). In its efforts to collect an alleged Debt, Defendant contacted Plaintiff by letter ("the Letter") dated June 6, 2018. The Letter contains multiple addresses for Defendant. Both of these addresses are located in the coupon meant to be detached and sent, which makes it even more confusing for the least sophisticated consumer, as to where the disputes must be sent. Without clear direction as to where to mail her written dispute, the least sophisticated consumer would likely not dispute the debt at all. Without clear direction as to where to mail her written dispute, the least sophisticated consumer would likely not dispute the debt at all because she would be frightened of calling the collection agency where highly trained and aggressive debt collectors answer calls. The Letter would likely discourage the least sophisticated consumer from exercising her right to dispute the debt, says the complaint. Plaintiff Sarah Greifman is an individual who is a citizen of the State of New York and is a natural person allegedly obligated to pay a debt. Defendant is regularly engaged, for profit, in the collection of debts allegedly owed by consumers.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. BARSHAY SANDERS, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (516) 203-7600 Fax: (516) 706-5055 Email: csanders@barshaysanders.com AMAZON.COM.KSDC LLC: Christeson Seeks Prelim. Nod of $61K Accord ---------------------------------------------------------------- Pursuant to Section 216(b) of the Fair Labor Standards Act and without Amazon's opposition, the Plaintiff in the lawsuit styled WYATT CHRISTESON, individually and on behalf of a class of similar employees v. AMAZON.COM.KSDC, LLC, Case No. 2:18-cv-02043-KHV-JPO (D. Kan.), seeks an order from the Court: (1) conditionally certifying the Parties' proposed settlement class consisting of Christeson and seven other IT Support Engineers who worked for Amazon at any time between January 25, 2015, and March 31, 2018; (2) preliminarily approving the Parties' Settlement Agreement and Release; and (3) approving the Parties' proposed notice and consent forms attached to the Agreement and the means by which the Parties propose to send such notice and consent forms to the Settlement Class Members. The Plaintiff and the Defendant reached a settlement of the pending dispute concerning unpaid overtime claims under the Fair Labor Standards. If all of the Settlement Class Members join this lawsuit and become Participating Plaintiffs, the Defendant has agreed to pay an amount not to exceed $61,636.[CC] The Plaintiff is represented by: Morgan L. Roach, Esq. MCCAULEY & ROACH, LLC 527 W. 39th St., Suite 200 Kansas City, MO 64111 Telephone: (816) 523-1700 Facsimile: (816) 523-1708 E-mail: morgan@mccauleyroach.com The Defendant is represented by: Stefanie R. Moll, Esq. T. Cullen Wallace, Esq. MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street, Suite 4000 Houston, TX 77002 Telephone: (713) 890-5000 E-mail: stefanie.moll@morganlewis.com twallace@morganlewis.com - and - Daniel B. Boatright, Esq. LITTLER MENDELSON, P.C. 1201 Walnut Street, Suite 1450 Kansas City, MO 64106 Telephone: (816) 627-4401 E-mail: dboatright@littler.com AMAZON.COM.KSDC: Court OKs Christeson Conditional Certification --------------------------------------------------------------- The United States District Court for the District of Kansas issued a Memorandum and Order granting in part Plaintiff's Unopposed Motion For Conditional Certification Of Proposed Settlement Class in the case captioned WYATT CHRISTESON, individually and on behalf of a class of similarly situated employees, Plaintiff, v. AMAZON.COM.KSDC, LLC, Defendant. Civil Action No. 18-2043-KHV.(D. Kan.). Wyatt Christeson brings suit against Amazon.com.ksdc, LLC on behalf of himself and others similarly situated, alleging that defendant violated the Fair Labor Standards Act (FLSA). The Plaintiff filed an unopposed motion for conditional certification of the proposed class, preliminary approval of the amended settlement agreement and release, and approval of the proposed notice to class members. The Plaintiff asks the Court to conditionally certify a collective action consisting of plaintiff and seven other IT Support Engineers who worked for defendant. Under the amended settlement agreement, the defendant agrees to pay each Settlement Class Member who opts in (Participating Plaintiff) $250.00 plus approximately $195.00 for each instance in which the Participating Plaintiff recorded 40, 49 or 55 hours in a workweek. This entitles each Participating Plaintiff to between $250.00 and $3,762.00, depending on his or her timesheets. If all seven IT Support Engineers opt in and become Participating Plaintiffs, defendant will pay up to $61,636.00, which includes plaintiff's request for up to $35,000.00 in attorney's fees, up to $2,467.62 in costs and up to a $5,000.00 service award to plaintiff. The FLSA provides that an employee may bring a collective action on behalf of other employees who are similarly situated. A lawsuit brought under the FLSA does not become a collective action unless other plaintiffs opt in by giving written consent. For conditional certification at the notice stage, the Court requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan. The standard for certification at the notice stage is a lenient one that typically results in class certification. Here, the plaintiff asserts that the potential class members are IT Support Engineers whom defendant informed of the maximum hours they could record for each week 40, 49 or 55 hours regardless of whether their job duties required them to exceed such maximum. He asserts that on multiple occasions, supervisors required the IT Support Engineers to adjust their timesheets to reflect only the maximum hours defendant permitted, and that they were not paid for overtime work. Generally, where a defendant employs putative class members in similar positions, the allegation that defendant engaged in a pattern or practice of not paying overtime is sufficient to allege that plaintiffs were together victims of a single decision, policy or plan. The allegations of the complaint suggest that plaintiff and potential class members are IT Support Engineers whom defendant (1) employed at any time between January 25, 2015 and March 31, 2018; (2) required to adjust their timesheets to match the maximum permitted hours; and (3) did not compensate for overtime work. Plaintiff has satisfied the low threshold required to demonstrate at the notice stage that all putative class members are similarly situated for purposes of conditional collective action certification under Section 216(b). Accordingly, the Court conditionally certifies a collective action consisting of Christeson and seven other IT Support Engineers who worked for Amazon at any time between January 25, 2015 and March 31, 2018. When employees sue their employer to recover overtime compensation under the FLSA, the parties must present any proposed settlement to the Court for review and a determination whether the settlement is fair and reasonable. To approve an FLSA settlement, the Court must find that (1) the litigation involves a bona fide dispute (2) the proposed settlement is fair and equitable to all parties concerned and (3) the proposed settlement contains an award of reasonable attorney's fees. Initially, the parties did not follow the Tenth Circuit's two-step procedure for obtaining collective action certification. In anticipation of a renewed motion for settlement approval, however, the Court reviewed the parties' initial proposed settlement agreement and found that this litigation involves a bona fide dispute. That conclusion still stands. The Court found that the proposed settlement agreement was not fair and equitable in light of the history and policy of the FLSA. Specifically, among other things, the Court advised the parties that the proposed settlement agreement contained overly-broad releases, inappropriate confidentiality requirements, an unenforceable non-disparagement clause and an impermissible prohibition on plaintiff's future employment. Plaintiff's motion for conditional certification does not specifically mention a single one of the deficiencies which the Court highlighted in its prior order, or explain how the parties claim to have rectified them. The Court will not re-write the parties' agreement, and it will not go hunting like a pig, searching for truffles, inventing arguments to satisfy its concerns. The Court again notes, however, that the proposed release goes well beyond the claims alleged in the complaint. The scope of the proposed release is nothing short of laughable, and the Court cannot approve it. The FLSA also requires that a settlement agreement include an award of a reasonable attorney's fee and costs of the action. In the instant motion, the parties state that Class Counsel will seek approval of the attorneys' fees and service award when he or she files for final settlement approval. The Court found that because the parties' motion was procedurally deficient, the proposal for attorney's fees and costs and the service award was premature. The Court nevertheless warned that it critically views settlement agreements in which defendants agree not to object to or oppose a fee request. The Court further noted that if low plaintiff participation caused a large portion of the maximum fund to revert to defendant, it would affect the Court's assessment of the reasonableness of the requested attorney's fees and service award. The Court reiterates these words of caution and adds one last word. In the amended settlement agreement, Class Counsel requests up to $35,000.00 in attorney's fees, up to $2,467.62 in costs and up to $5,000.00 for a service award to plaintiff. Even if defendant distributes all funds to Participating Plaintiffs, fees, expenses and service awards constitute 222 per cent of the amount which Participating Plaintiffs will collectively receive. If the parties seek further approval of a settlement, they must cite specific cases which authorize costs and fee awards in that order of magnitude. The Court is skeptical of such high fee requests, especially where they are not subject to testing through the adversarial process. In sum, the Court conditionally certifies a collective action comprised of Christeson and seven other IT Support Engineers whom defendant employed at any time between January 25, 2015 and March 31, 2018. The Court otherwise overrules plaintiff's motion. Accordingly, the Plaintiff's Unopposed Motion For Conditional Certification Of Proposed Settlement Class And Preliminary Approval Of the Parties' Settlement Agreement And Release And Notice To Settlement Class Members is sustained in part. Pursuant to 29 U.S.C. Section 216(b), the Court conditionally certifies a class comprised of Wyatt Christeson and seven other IT Support Engineers who worked for Amazon.com.ksdc, LLC at any time between January 25, 2015 and March 31, 2018. In addition, the Court approves Wyatt Christeson as class representative. A full-text copy of the District Court's May 16, 2019 Memorandum Order is available at https://tinyurl.com/y6pcogmw from Leagle.com. Wyatt Christeson, individually and on behalf of a class of similar employees, Plaintiff, represented by Jeffrey S. Kratofil -- jeff@mccauleyroach.com -- McCauley & Roach, LLC & Morgan L. Roach -- morgan@mccauleyroach.com -- McCauley & Roach, LLC. Amazon.com.ksdc, LLC, Defendant, represented by Daniel B. Boatright -- dboatright@littler.com -- Littler Mendelson, PC, Stefanie R. Moll -- stefanie.moll@morganlewis.com -- Morgan, Lewis & Bockius, LLP, pro hac vice & Thomas Cullen Wallace -- cullen.wallace@morganlewis.com -- Morgan, Lewis & Bockius, LLP, pro hac vice. AMERICAN EAGLE: Experian Unit's Objection to Settlement Rebuffed ---------------------------------------------------------------- Barbara Grzincic, writing for Reuters, reports that an Experian subsidiary lacked standing to object to American Eagle Outfitters' settlement of a junk-text class action even though it may eventually have to pay the $14.5 million bill, a federal appeals court held on April 30. The 2nd U.S. Circuit Court of Appeals upheld the Pittsburgh-based retailer's settlement of the 2014 lawsuit filed in federal court in Manhattan under the Telephone Consumer Protection Act. The 2017 settlement covers the owners of more 618,000 cellphones that received American Eagle's unsolicited marketing texts over a seven-year period. [GN] AMERICAN FEDERATION: Faces Class Action in Illinois Over Fees ------------------------------------------------------------- Gregg Re, writing for Fox News, reports that a massive class-action lawsuit filed in Illinois on May 1 could force unions to refund hundreds of millions of dollars in agency fees paid by thousands of workers nationwide prior to the Supreme Court's landmark ruling last year in Janus v. AFSCME (American Federation of State, County and Municipal Employees). That June 2018 decision barred public-sector unions from requiring nonmembers to pay the fees without obtaining their clear consent. It already has cost unions tens of millions of dollars in dues, experts say, though the ruling hasn't yet been applied retroactively to provide refunds to workers. The new Leitch et al., v. AFSCME litigation again unites the nonprofit law firms Liberty Justice Center (LJC) and National Right to Work Legal Defense Foundation, which worked together on the Janus case, against AFSCME -- the largest public-sector union in the country. The two legal groups are representing nine government worker plaintiffs and a class of more than 2,700 workers in the lawsuit, which aims to set a precedent that could apply to all public-sector unions. "We're putting the band back together," Liberty Justice Center President Patrick Hughes told Fox News. "The argument is once something is deemed to be unconstitutional [in the civil context] -- agency fees -- then they're deemed to be retroactively unconstitutional. . . . We're taking the position that those fees should be refunded to those nonmembers." Prior to Janus, Hughes argued, workers were faced with a "false choice" -- they could pay full membership dues and become a union member, or pay a substantial amount of those dues and not become a member. The Supreme Court validated Hughes' reasoning last June, holding not only that public unions violated the First Amendment by taking money out of unwilling workers' paychecks to fund collective bargaining, but also that employees must "clearly and affirmatively consent" before any fees or dues are collected. Hughes emphasized that workers should be able to join unions if they want. But that decision, he said, should be made free from the external pressures created by mandatory agency fees. AFSCME and other unions, Hughes acknowledged, can be expected to fight the lawsuit "tooth and nail," given the amount of money at stake. He predicted that unions would offer a "good faith" defense, and assert that they are entitled to retain the dues from before the Janus decision because they believed their position to be legally sound. "The problem is the Supreme Court has never found the good-faith doctrine applies in this context -- and the more fact-specific [problem] is that the public sector unions were well aware" that pending legal challenges to mandatory agency dues had merit, Hughes said. The complaint, obtained by Fox News, noted that on Feb. 9, 2015, then-Illinois Gov. Bruce Rauner, a Republican, "issued an executive order that recognized the State's agency fee requirements were likely unconstitutional and that called for the fees to be placed in escrow 'so that each such State Employee will receive the amount deducted from his or her wages upon the determination by any court of competent jurisdiction that the Fair Share Contract Provisions are unconstitutional.'" However, AFCME did not "agree to have agency fees escrowed while their constitutionality was resolved," the complaint asserts. AFCME did not respond to Fox News' request for comment. The organization has called the Janus case a "blatantly political and well-funded plot to use the highest court in the land to further rig the economic rules against everyday working people." In addition to class certification, the May 1 lawsuit seeks for "plaintiffs and class members actual damages in the full amount of fees and any assessments seized from their wages from May 1, 2017 to June 27, 2018, plus interest, for violations of their First Amendment Rights." Illinois' statute of limitations prevents the workers from obtaining a refund going back more than two years, but Hughes told Fox News that other states have longer statutes of limitations. The lawsuit was slated to be formally announced on May 1 at a press conference in Chicago. Mark Janus, the plaintiff in Janus v. AFSCME, is scheduled to appear. He is seeking a refund of some $3,000 in agency fees. "Refusing to return unlawfully seized union fees to these workers and in a growing number of cases across the country represents a blatant disregard for the law," said Mark Mix, president of the National Right to Work Legal Defense Foundation. "AFSCME union officials in this case stand in utter defiance of the Supreme Court's Janus decision. This case proves, once again, that union officials will do whatever it takes to keep the coffers brimming with forced dues and fees at the expense of the workers they claim to 'represent.' Keeping hundreds of millions of dollars taken from workers in violation of their First Amendment rights is outrageous." While the May 1 lawsuit is the first by LJC to demand a refund for paid agency fees, and its first class-action case, the group said it expects to file more litigation given the alleged resistance of unions to comply with Janus. According to an April 17, 2019 letter from the National Union of Healthcare Workers to a California union employee -- provided to Fox News by LJC -- some employees have been threatened with termination if they failed to join a union. That letter, while unrelated to the Illinois litigation, highlights ongoing problems with Janus enforcement, Hughes said. In a March lawsuit also handled by LJC, two University of California system employees claimed they were effectively being held "against their will" and forced to pay monthly union dues. On July 25, 2018, "upon learning of the Janus decision of June 27, 2018," one of the plaintiffs resigned from her union by letter and also wrote to University of California, Santa Barbara (UCSB) requesting that it stop deducting union dues from her paycheck. In response, the plaintiff said, the union informed UCSB that it should continue withholding money from her paycheck, and the university complied. The union said that, under the terms of the collective bargaining agreement, the plaintiff could eventually opt out of the fees -- she would just need to wait until around March 31, 2022. [GN] ANIMAL FEEDS: Manatt Phelps Attorneys Discuss High Court Ruling --------------------------------------------------------------- Richard Gottlieb, Esq. -- rgottlieb@manatt.com -- Esra Hudson, Esq. -- ehudson@manatt.com -- and Alma Pinan, Esq.-- apinan@manatt.com -- of Manatt, Phelps & Phillips, LLP, in an article for JDSupra, report that the Supreme Court, in a sharply-divided 5-4 ruling issued on April 24, ruled that nothing in the Federal Arbitration Act allows courts to compel class action arbitration even if the contract is ambiguous in that regard, and notwithstanding rules that direct courts to interpret such ambiguities most strongly against the drafter. What happened The Federal Arbitration Act (FAA) broadly favors arbitration and the parties' ability to contract away their litigation rights through this alternate dispute resolution process. That said, back in 2010, the Supreme Court ruled in Stolt-Nielsen v. AnimalFeeds Int'l that a court may not compel arbitration on a classwide basis when an agreement is "silent" on the availability of such arbitration. Because class arbitration fundamentally changes the nature of the "traditional individualized arbitration" envisioned by federal law, the Court concluded in Stolt-Nielsen that a party may not be compelled to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so. In its April 24 ruling, the Court now concludes that federal law likewise prevents class arbitration, even when the arbitration agreement is ambiguous on the issue, because the Federal Arbitration Act requires courts to enforce covered arbitration agreements according to the terms of those agreements, and an ambiguous provision cannot be interpreted to compel class action arbitration. As a general rule, when a contract is ambiguous, courts will apply, as a last resort, the rule of contract interpretation known as contra proferentem, which means that the ambiguous contract provision at issue will be interpreted against the drafter. In the decision below, the U.S. Court of Appeals for the Ninth Circuit did precisely that, concluding that the arbitration agreement at issue was ambiguous on the question of class action arbitration, and must be resolved in favor of ordering such arbitration. Indeed, this appeared to be consistent with Supreme Court precedent such as Mitsubishi Motors v. Soler Chrysler-Plymouth (1985) and Moses H. Cone Memorial Hospital v. Mercury Construction (1983), holding that any ambiguities about the scope of an arbitration agreement must be resolved in favor of arbitration. But here, the Supreme Court draws the line on class action arbitration. Citing AT&T Mobility v. Concepcion (2011), the Court concludes that individual parties cannot force class action arbitration on other similarly situated parties without the parties' consent because it is inconsistent with the FAA to apply the more general contra proferentem rule to impose class arbitration in the absence of the parties' clear consent. In addition, in one of three dissents, Justice Kagan wrote the primary opinion and largely agreed with a concurring opinion by Justice Thomas on the core principle that the dispute should have been resolved by applying common law contract principles. Those well-established principles, she wrote, ought to have resolved the case against Lamps Plus's request for individual arbitration because, based on those rules of contract interpretation and Supreme Court precedent requiring contracts to be enforced in accordance with their terms, the arbitration agreement Lamps Plus wrote would be "best understood to authorize arbitration on a classwide basis." Moreover, she wrote, "a plain-vanilla rule of contract interpretation, applied in California as in every other State, requires reading it against the drafter -- and so likewise permits a class proceeding here." Ultimately, however, that view did not carry the day. The Court noted the importance of recognizing the fundamental difference between class arbitration and the individualized form of arbitration. Class arbitration is slower, more costly and more likely to generate procedural morass than is individual arbitration. Thus, silence and ambiguity are not enough to compel class arbitration. This decision should ensure that parties to an arbitration agreement are not forced into inefficient class arbitration proceedings unless the parties expressly agreed to such proceedings. Why it matters This is a major development in arbitration law because courts have applied the rule of contra proferentem to force class action arbitration on the parties based on purported ambiguity in arbitration agreements, even when none exists. With the ruling, the Supreme Court has made clear that the FAA prohibits the use of state-law rules of contract interpretation to the extent they seek to impose classwide arbitration in the absence of an express agreement to that effect. [GN] APPLE INC: Bronstein Gewirtz Files Securities Fraud Class Suit -------------------------------------------------------------- The City of Roseville Employees' Retirement System in April 2019 filed a securities fraud class action lawsuit against Apple that included Tim Cook and Luca Maestri as defendants. Bronstein, Gewirtz & Grossman, LLC, has announced that they have filed a similar class action lawsuit against Apple, CEO Tim Cook and CFO Luca Maestri, on behalf of shareholders who purchased or otherwise acquired Apple securities between November 2, 2018 and January 2, 2019, both dates inclusive. 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 during the Class Period, defendants made materially false and misleading statements and/or failed to disclose adverse information regarding Apple's business and prospects. Specifically, defendants failed to disclose that: (a) the U.S.-China trade war had negatively impacted demand for iPhones and Apple's pricing power in greater China; (b) due to Apple discounting the cost of replacement batteries to make up for the Company's prior conduct of intentionally degrading the performance of the batteries in older iPhones, the rate at which Apple customers were replacing their batteries in older iPhones, rather than purchasing new iPhones, was negatively impacting Apple's iPhone sales growth; (c) as a result of slowing demand, Apple had slashed production orders from suppliers for the new 2018 iPhone models and cut prices to reduce inventory; and (d) defendants' decision to withhold unit sales for iPhones and other hardware, which was a metric relevant to investors and their view of the Company's financial performance, was designed to and would mask declines in unit sales of the Company's flagship product. As a result of this information being withheld from the market during the Class Period, the price of Apple stock was artificially inflated to more than $209 per share. Then on January 2, 2019, post-close, Apple disclosed that, for the first time in over 14 years, Apple would miss its prior quarterly revenue forecast amid falling iPhone sales in China, its third largest market after USA and Europe. The Company announced first quarter fiscal 2019 revenues of only $84 billion, below the expected range of $89 billion to $93 billion the Company had announced eight weeks previously on November 1, 2018. The Company also disclosed that in addition to macroeconomics in the Chinese market, the price cuts to battery replacements a year earlier to fix the Company's prior surreptitious conduct had hurt iPhone sales. This news caused the market price of Apple common stock to decline more than $15 per share, or more than 9%, from a close of $157.92 per share on January 2, 2019 to a close of $142.19 per share on January 3, 2019. [GN] APPLE INC: Faces Class Action Over iPhone 7 "Loop Disease" ---------------------------------------------------------- Julio Cachila, writing for International Business Times, reports that Apple is facing a class action lawsuit for the so-called "loop disease" affecting the iPhone 7. A class action lawsuit was filed against Apple for Audio IC defects on the iPhone 7, Apple Insider reported. According to the plaintiffs, their iPhone 7 smartphones don't work the way Apple promised they would work. What's more, they said Apple wouldn't do a thing about it. The lawsuit has three plaintiffs. Two of them said they experienced a greyed-out "speaker" button on the iPhone's touchscreen. One of them described talking during calls as if she was "speaking under water." All of them said Siri doesn't respond to voice commands, and that other voice response applications are inoperable as well. All plaintiffs took their iPhones to local Apple Stores for repair or replacement. One of them was told that the problem was caused by her cellular provider. Two of them were told that they were past the warranty period. None of them had their problems fixed. The three plaintiffs' experiences with the iPhone 7 are not isolated cases. These are similar to what many iPhone 7 users have experienced in the previous years. In fact, a quick visit to the Apple forums and a quick search on the internet will reveal that this has been going on for quite some time to many users, and Apple actually knows that. One certain commenter in the Apple forums said the Cupertino-based tech giant knows the issue but is not going to do anything about it. Specifically, the poster quoted Apple as saying, "We know it's a problem with some devices and we're not going to replace your phone." What caused this problem in first place The lawsuit claims that the Audio IC defect is caused by faulty design, specifically the "substandard" material used in the iPhone 7's external casing, rendering it unable to protect the internal parts over prolonged use; and the wrong placement of the audio IC chip on the iPhone's logic board, leading to loss of connection with the board itself. This problem isn't difficult to fix. Independent trained technicians can fix the problem by soldering the audio IC chip to the board using thin copper wire. The plaintiffs accuse Apple of "concealing" the defect from consumers, engaging in deceptive practives, and refusing to repair affected iPhones despite knowing the defect. They want Apple to repair or recall the devices, extend applicable warranties, and pay for damages and attorney's fees. [GN] APPLE INC: Labaton Sucharow Files Expanded Class Action Lawsuit --------------------------------------------------------------- Labaton Sucharow LLP ("Labaton Sucharow") announces that on May 24, 2019, it filed a securities class action lawsuit, captioned Steamfitters Local 449 Pension Plan v. Apple Inc., No. 19-cv-2891 (N.D. Cal.) (the "Action"), on behalf of its client Steamfitters Local 449 Pension Plan ("Steamfitters") against Apple Inc. (NASDAQ: AAPL) ("Apple" or the "Company") and certain officers and directors (collectively, "Defendants"). The Steamfitters Action asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and SEC Rule 10b-5 promulgated thereunder, on behalf of all those who purchased or otherwise acquired Apple securities during the period from August 1, 2017 through January 2, 2019, inclusive (the "Class Period"), who were damaged thereby (the "Class"). The Action expands upon the substantially related cases City of Roseville Employees Retirement System v. Apple Inc., No. 19-cv-2033 (N.D. Cal.), asserting Exchange Act claims on behalf of all purchasers of Apple common stock between November 2, 2018 and January 2, 2019; and Reddy v. Apple Inc., No. 19-cv-2615 (N.D. Cal.), asserting Exchange Act claims on behalf of all purchasers of Apple securities between November 2, 2018 and January 2, 2019. Pursuant to the notice published on April 16, 2019 in connection with the first-filed case, as required by the Private Securities Litigation Reform Act of 1995, investors wishing to serve as Lead Plaintiff are required to file a motion for appointment as Lead Plaintiff by no later than June 17, 2019. Apple is a multinational technology company headquartered in Cupertino, California that designs, develops, and sells consumer electronics, computer software, and online services. The Company's most profitable product is the iPhone smartphone, which since 2012 has represented more than 40 percent of the Company's revenue. China is the Company's third-largest market, and most important growth market, yet is susceptible to geopolitical and macroeconomic uncertainty and increased competition from emerging Chinese smartphone manufacturers. On January 23, 2017, Apple released a software update which secretly slowed the performance of certain iPhones with battery-related issues. Throughout 2017, these undisclosed intentional slowdowns led consumers to prematurely believe their devices had become obsolete, leading them to upgrade their iPhones at a fast rate. Specifically, beginning in August 1, 2017, Apple began to report a record number of iPhone upgrades. In December 2017, Apple revealed it had been intentionally slowing down certain iPhones, also disclosing that the problem was battery-related, as opposed to device-related. Following this revelation, Apple offered discounted replacement batteries throughout 2018 in light of public outrage. The Steamfitters Action alleges that during the Class Period, Defendants misled investors by making materially false and misleading statements as each of the Defendants knew and failed to disclose or deliberately disregarded that: (1) the intentional slowdown of certain model iPhones, unsustainably boosted iPhone sales during 2017 and cannibalized future sales; (2) the Company's replacement battery program during 2018 (enacted as a direct and primary response to the Company's intentional phone throttling during 2017) was negatively impacting iPhone sales; and (3) the U.S.-China trade war, declining Chinese economy, and strength of the U.S. dollar had negatively impacted demand for iPhones in Greater China. On January 2, 2019, after the close of trading, for the first time in fifteen years Apple slashed its prior quarterly revenue forecast for its already complete first fiscal quarter 2019. On this date, Defendants disclosed that the Company's revenues for its first fiscal quarter 2019 were only $84 billion, substantially below the expected range of $89 billion to $93 billion the Company had announced eight weeks earlier. Defendants attributed these results to declining iPhone sales, in part, due to more consumers purchasing discounted replacement batteries in lieu of upgrading their iPhones, and the decelerating Chinese economy and U.S.-China trade war impacting iPhone demand in Greater China. On this news, Apple common stock fell precipitously by more than $15 per share, or more than 9 percent, to close at $142.19 per share on January 3, 2019. If you purchased or otherwise acquired Apple securities during the Class Period and were damaged thereby, you are a member of the "Class" and may be able to seek appointment as Lead Plaintiff. Lead Plaintiff motion papers must be filed with the U.S. District Court for the Northern District of California no later than June 17, 2019. The Lead Plaintiff is a court-appointed representative for absent members of the Class. You do not need to seek appointment as Lead Plaintiff to share in any Class recovery in the Action. If you are a Class member and there is a recovery for the Class, you can share in that recovery as an absent Class member. You may retain counsel of your choice to represent you in the Action. If you would like to consider serving as Lead Plaintiff or have any questions about this lawsuit: Contact: Francis P. McConville, Esq. Labaton Sucharow Phone: 800-321-0476 Website: www.labaton.com. Email: fmcconville@labaton.com [GN] APPLE INC: Selling iTunes Listening Data, Class Suit Claims ----------------------------------------------------------- Chance Miller, writing for 9to5Mac, reports that while Apple is a strong proponent of user privacy, a new lawsuit accuses the company of disclosing and selling certain iTunes purchase data. Bloomberg reports that Apple has been hit with a class action alleging that it discloses and sells information about iTunes listening habits. In the lawsuit, customers from Rhode Island and Michigan accuse Apple of selling personal listening information about its customers, without consent. The customers say they hope to represent "hundreds of thousands" of residents in their home states who are affected by Apple's alleged practice. The lawsuit alleges that someone can purchase a list of iTunes customers who meet a certain set of requirements, such as a list of people who are college-educated and purchase country music from the iTunes Store: "For example, any person or entity could rent a list with the names and addresses of all unmarried, college-educated women over the age of 70 with a household income of over $80,000 who purchased country music from Apple via its iTunes Store mobile application," the customers said. "Such a list is available for sale for approximately $136 per thousand customers listed." The lawsuit is seeking $250 for each Rhode Island iTunes customer whose information was disclosed, and $5,000 for each Michigan resident affected. These numbers are based on each state's respective privacy law. Tim Cook has repeatedly stated that Apple does not believe in the practice of selling user data. In an interview earlier this year, Cook said that because Apple does not sell user data, users are able to "feel that they can trust Apple." Cook has also called on the FTC to establish a ‘data-broker clearinghouse' so users can better track what happens with their data. The case against Apple is Wheaton v Apple Inc and will proceed forward in the US District Court for the Northern District of California. [GN] ARIZONA ACREAGE: Ariz. App. Affirms Summary Judgment in Monroe -------------------------------------------------------------- The Court of Appeals of Arizona, Division One, issued an Opinion affirming the judgment of the Superior Court granting Plaintiffs' Motion for Summary Judgment in the case captioned In re the Matter of: JEAN M. MONROE, Plaintiff/Appellee, v. ARIZONA ACREAGE LLC, et al., Defendants/Appellants. BOYD FAMILY PARTNERSHIP and JEAN M. MONROE, Plaintiffs/Appellees, v. SUNNY LAKES RANCHOS LLC, et al., Defendants/Appellants. Nos. 1 CA-CV 18-0476, 1 CA-CV 18-0478, 1 CA-CV 19-0170 and 1 CA-CV 19-0171 (Consolidated). (Ariz. App.). The Appellants appeal the superior court's denial of their cross-motions for partial summary judgment and grant of partial summary judgment in favor of representative plaintiffs Jean M. Monroe and Boyd Family Partnership (Appellees). Sunny Lakes executed a promissory note in favor of multiple lenders in exchange for $5,000,000. Over one hundred individuals and entities contributed money to the Sunny Lakes loan, and no lender contributed more than fourteen percent of the total loan value. The note was secured by a deed of trust encumbering several acres of undeveloped land in Mohave County (Plot A). In addition to the note and deed of trust, Mardian executed a guaranty agreement, promising to repay the loan in the event Sunny Lakes failed to do so. Both Sunny Lakes and AZ Acreage made payments on their respective notes until July 2008, when both companies stopped making payments. In late June 2014, believing the statute of limitations was just days from expiration, Appellees filed two class action lawsuits to foreclose on Plot A and Plot B and recover any resulting deficiency. The Appellees moved for partial summary judgment to: (1) establish the dollar amount due under each note (2) establish that the classes were entitled to payment under the notes (3) order a sheriff's sale of Plot A and Plot B and (4) establish liability against each defendant for payment of any deficiency that may arise. Appellants each cross-moved for summary judgment, again arguing the claims were barred by a four-year statute of limitations and Appellants had failed to bring the actions in accordance with the terms of the deeds of trust and controlling Nevada law. The court granted the Appellees' motions in part reserving the issue of Mardian's liability to pay a deficiency until after the properties were sold and a fair market value hearing could be held. In its Rule 54(b) order, the court determined Sunny Lakes owed $13,870,277.75 on its promissory note plus interest, and AZ Acreage owed $10,933,666.62 on its promissory note plus interest. Sunny Lakes and AZ. Appellants and Mardian raise three main arguments on appeal: (1) the Appellees' claims are barred by the doctrines of issue and claim preclusion; (2) the Appellees' claims are governed by a four-year statute of limitations and, accordingly, are untimely; and (3) the Appellees' claims are barred because they failed to obtain written consent of 51% of the lenders before filing the lawsuits, as required by the deeds of trust and by N.R.S. Section 645B.340. Issue Preclusion and Claim Preclusion Do Not Apply The Appellants argue the holding in related litigation, Karayan v. Mardian, 690 Fed. Appx. 996 (9th Cir. 2017) (mem. decision), under the doctrines of issue and claim preclusion bars both class action lawsuits. Before the superior court, however, Appellants only argued that the Karayan decision should preclude one class member, the Karayan Family Trust, from participating in the class. Appellants never argued that Appellees as class representatives should be barred from bringing suit, and we will not consider the argument for the first time on appeal. Statutes of Limitations The Judicial Foreclosure Claims Were Timely Filed The Appellants failed to make payments on the notes starting in July 2008. The subject lawsuits were filed on June 27, 2014. Appellants contend the superior court erred by denying their cross-motions for summary judgment, arguing that the four-year limitations period under A.R.S. Section 12-544(3) applies to bar Appellees' claims. The Appellees assert the six-year limitations period under A.R.S. Section 47-3118(A) applies and the claims were timely filed. Section 12-544(3) provides, there shall be commenced and prosecuted within four years after the cause of action accrues, an action upon an instrument in writing executed without the state. Alternatively, A.R.S. Section 47-3118(A) provides, an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date. Both the Appellants and the Appellees rely on the proposition that where one statute of limitations has general application and another arguably competing statute of limitations is specific, the specific statute should prevail. The parties disagree, however, as to which of these arguably competing statutes is specific and controlling. Appellants argue Section 12-544(3) is specific because it applies to instruments created outside this state and is therefore directly applicable to the promissory notes and deeds of trust executed in Nevada. In contrast, Appellees argue Section 47-3118(A) is more specific and should prevail because it outlines the limitations period for particular negotiable instruments created pursuant to the Uniform Commercial Code (U.C.C.), including promissory notes. The Ariz. App.'s conclusion is supported by the fact that Nevada has also adopted the six-year statute of limitations period outlined in Article Three. And since Arizona's initial adoption of the U.C.C. in 1967, this court has interpreted Section 12-544(3) only in regard to claims brought by a plaintiff seeking to enforce a foreign judgment. This narrow application of the older limitations provision further supports our conclusion that the more recent limitations provision is specific to promissory notes and should therefore apply in this case. The Breach of Guaranty Claims Were Timely Filed Mardian argues Arizona case law establishes that provisions from the U.C.C., as codified in Arizona, do not apply in any respect to guaranty agreements regardless of the underlying instrument the guaranty agreement relates to because the guaranty is a separate contract. He therefore contends that the shorter four-year limitations period of A.R.S. Section 12-544(3) should apply to bar Appellees' claim against him, irrespective of whether the six-year limitations period of A.R.S. Section 47-3118(A) applies to the judicial foreclosure claims against Appellants. Mardian correctly states that Arizona treats guaranty agreements as contracts separate from their related instruments. However, we do not agree that the cases Mardian relies upon broadly prohibit U.C.C. application to all guaranty agreements. Here, Mardian signed specific guaranty agreements, which obligated him to repay only the debts of the particular promissory notes related to each loan. Further, in Grimm, this court contemplated that the U.C.C. could apply to a guaranty agreement in situations where the borrower under a negotiable instrument is an entity owned by the guarantor. The Court determines that this case is such a case. Accordingly, Section 47-3118(A) applies to Appellees' breach of guaranty claims against Mardian. Therefore, the Court concludes Section 47-3118(A) applies and the superior court did not err in finding that Appellees timely filed a claim against Mardian. The 51% Requirement Under the Default Clause and N.R.S. Section 645B.340 The Appellants argue the claims are barred because Appellees lacked standing to sue. They assert the Appellees did not comply with certain terms of the default clause that had to be met before bringing the foreclosure actions. In the alternative, Appellants contend Appellees' claims are barred for failure to comply with N.R.S. Section 645B.340. Appellees Sufficiently Pled a Declared Default The Appellants argue Appellees did not have standing to bring these claims because they did not obtain the agreement of 51% of the lenders before declaring a default on the deeds of trust. To initiate a claim in Arizona, a party must have standing, that is, a plaintiff must allege a distinct and palpable injury. Here, the Appellees alleged in their complaints that a default under the deeds of trust had occurred, resulting in the full amount being due under each note. The Appellees' motions for partial summary judgment asserted that the Appellants were in default as of July 1, 2008. The Appellants originally challenged the sufficiency of a specific declared default date in their 2014 motion to dismiss, but later abandoned this position and did not contest the July 1, 2008 date in their response to the motions for partial summary judgment or their cross-motions for summary judgment. On this record, Appellees sufficiently established an injury, the July 1, 2008 default giving them standing to bring both lawsuits. It is undisputed that Appellants failed to make payments on either note since July 1, 2008. It also is undisputed that each class is owed money under the notes. Furthermore, Appellants have not asserted that they were improperly prejudiced or damaged in this litigation due to the alleged failure to properly declare a default. The Court determines that judicial economy and administration is promoted by affirming that Appellees have standing to seek recovery for the money owed under each note. The Court affirms the superior court's grant of partial summary judgment and judgment on the pleadings in favor of Appellees. A full-text copy of the Ariz. App.'s May 16, 2019 Opinion is available at https://tinyurl.com/y3usj9d3 from Leagle.com. Lundberg & Elias, PLLC, Bullhead City, By T'shura-Ann Elias, Gregory & Elias, Plc, 3640 Highway 95 Ste 140, Bullhead City, AZ, 86442-4337, Counsel for Plaintiffs/Appellees. Johnson & Gubler, P.C., Las Vegas, Nevada, By Matthew L. Johnson, Russell G. Gubler, Lakes Business Park, 8831 W. Sahara Avenue, Las Vegas, Nevada 89117, Counsel for Defendants/Appellants. AVANOS MEDICAL: Appeal in Bahamas Surgery Case Still Pending ------------------------------------------------------------ Avanos Medical, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 7, 2019, for the quarterly period ended March 31, 2019, that the appeal filed in the case, Bahamas Surgery Center, LLC v. Kimberly-Clark Corporation and Halyard Health, Inc., is still pending. Avanos said, "We have an Indemnification Obligation for the matter styled Bahamas Surgery Center, LLC v. Kimberly-Clark Corporation and Halyard Health, Inc., No. 2:14-cv-08390-DMG-SH (C.D. Cal.) ("Bahamas"), filed on October 29, 2014." In that case, the plaintiff brought a putative class action asserting claims for common law fraud (affirmative misrepresentation and fraudulent concealment) and violation of California's Unfair Competition Law ("UCL") in connection with the company's marketing and sale of MicroCool surgical gowns. On April 7, 2017, a jury returned a verdict for the plaintiff, finding that Kimberly-Clark was liable for $3.9 million in compensatory damages (not including prejudgment interest) and $350.0 million in punitive damages, and that Avanos was liable for $0.3 million in compensatory damages (not including prejudgment interest) and $100.0 million in punitive damages. Subsequently, the court also ruled on the plaintiff's UCL claim and request for injunctive relief. The court found in favor of the plaintiff on the UCL claim but denied the plaintiff's request for restitution. The court also denied the plaintiff's request for injunctive relief. On May 25, 2017, the company filed three post-trial motions: a renewed motion for judgment as a matter of law; a motion to decertify the class; and a motion for new trial, remittitur, or amendment of the judgment. On March 30, 2018, the court ruled on the post-trial motions. The court denied all three, except it granted in part the motion to reduce the award of punitive damages to a 5 to 1 ratio with compensatory damages. On April 11, 2018, the court issued an Amended Judgment in favor of the plaintiff and against us and Kimberly-Clark. The judgment against the company is $0.3 million in compensatory damages and pre-judgment interest and $1.3 million in punitive damages. The judgment against Kimberly-Clark is $3.9 million in compensatory damages, $1.3 million in pre-judgment interest, and $19.4 million in punitive damages. On April 12, 2018, the company filed a notice of appeal to the Ninth Circuit Court of Appeals. Avanos said, "We intend to continue our vigorous defense of the Bahamas matter." No further updates were provided in the Company's SEC report. Avanos Medical, Inc. operates as a medical technology company that focuses on delivering medical device solutions to improve patients’ quality of life worldwide. The company was formerly known as Halyard Health, Inc. and changed its name to Avanos Medical, Inc. in June 2018. Avanos Medical, Inc. was incorporated in 2014 and is headquartered in Alpharetta, Georgia. AVANOS MEDICAL: Dismissal of Jackson Class Suit Appealed -------------------------------------------------------- Avanos Medical, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 7, 2019, for the quarterly period ended March 31, 2019, that the plaintiff in the case, Jackson v. Halyard Health, Inc., Robert E. Abernathy, Steven E. Voskuil, et al., has appealed the dismissal of the action to the U.S. Court of Appeals for the Second Circuit. The company was served with a complaint in a matter styled Jackson v. Halyard Health, Inc., Robert E. Abernathy, Steven E. Voskuil, et al., No. 1:16-cv-05093-LTS (S. D. N. Y.), filed on June 28, 2016. In that case, the plaintiff brings a putative class action against the Company, its former Chief Executive Officer, its Chief Financial Officer and other defendants, asserting claims for violations of the Securities Exchange Act, Sections 10(b) and 20(a). The plaintiff alleges that the defendants made misrepresentations and failed to disclose certain information about the safety and effectiveness of our MicroCool gowns and thereby artificially inflated the Company's stock prices during the respective class periods. The alleged class period for purchasers of Kimberly-Clark securities who subsequently received Avanos securities is February 25, 2013 to October 21, 2014, and the alleged class period for purchasers of Avanos securities is October 21, 2014 to April 29, 2016. On February 16, 2017, we moved to dismiss the case. On March 30, 2018, the court granted the company's motion to dismiss and entered judgment in the company's favor. On April 27, 2018, the plaintiff filed a Motion for Relief from the Judgment and for Leave to Amend. On April 1, 2019, the court denied the plaintiff's motion. On May 1, 2019, Jackson appealed the dismissal of the action to the 2nd Circuit Court of Appeals. Avanos said, "We intend to continue our vigorous defense of this matter." Avanos Medical, Inc. operates as a medical technology company that focuses on delivering medical device solutions to improve patients’ quality of life worldwide. The company was formerly known as Halyard Health, Inc. and changed its name to Avanos Medical, Inc. in June 2018. Avanos Medical, Inc. was incorporated in 2014 and is headquartered in Alpharetta, Georgia. BANK OF AMERICA: Castillo Seeks to Certify Class & Subclass ----------------------------------------------------------- In the class action lawsuit CINDY R. CASTILLO, individually and on behalf of all others similarly situated, the Plaintiff, vs. BANK OF AMERICA NATIONAL ASSOCIATION, a North Carolina Corporation, and DOES 1-10, inclusive, the Defendants, Case 8:17-cv-00580-DOC-KES (C.D. Cal.), the Plaintiff will move the Court on July 15, 2019, for an order: 1. certifying class and subclass: California Class: "all hourly-paid, non-managerial call center workers of Bank of America, National Association, in the State of California within four years prior to the filing of the complaint in this action until resolution of this lawsuit"; Sub-Class 1: "all Class Members who are or were employed by Defendants and subject to Defendant’s Unfair Business Practices"; and 2. appointing James Hawkins, APLC, as class counsel. Bank of America National Association operates 13 call centers in California where, from March 2013 to September 2018, 5,031 telephone-dedicated employees handled phone calls regarding banking and investment services offered by Defendant to its customers. The Defendant maintained a uniform policy and practice that discouraged employees from accurately recording their work time. An employee who does not adhere to her scheduled times is subject to discipline. The Defendant allegedly failed to pay for all time worked. The Defendant also applied a uniform, written policy that miscalculated overtime premium wages.[CC] Attorneys for Cindy R. Castillo individually, and on behalf of all others similarly situated: James R. Hawkins, Esq. Gregory Mauro, Esq. JAMES HAWKINS APLC 9880 Research Drive, Suite 200 Irvine, CA 92618 Telephone: (949) 387-7200 Facsimile: (949) 387-6676 E-mail: James@jameshawkinsaplc.com Greg@jameshawkinsaplc.com BARCLAYS: Judge Tosses Debt Collection Class Action --------------------------------------------------- Dena Aubin, writing for Reuters, reports that a judge in Boston federal court has dismissed a proposed class action accusing a Barclays unit and a Massachusetts law firm of suing borrowers over credit card debt that was no longer legally enforceable, ruling that the dispute must be resolved in arbitration. The named plaintiff, Ellen Christensen of Lawrence, Massachusetts, had argued that Barclays waived its right to arbitration by making use of the courts to sue her, but U.S. District Judge Allison Burroughs on April 30 rejected that argument. Christensen succeeded in getting Barclays' debt collection lawsuit against her dismissed, and she will not suffer unfair prejudice if the current case is sent to arbitration, the judge said. [GN] BARTON NINE: Faces Class Action Over Incorrect GST Charges ---------------------------------------------------------- The Canberra Times reports that Canberra apartment buyers in a large double class action have sued some of the city's biggest developers alleging they incorrectly paid GST on their purchases. The suit, lodged in the Federal Court, alleges that the buyers agreed to pay GST as a portion of the purchase price but the developers were not liable to pay it and so kept the resulting windfall. The developers deny the allegations, and the two cases are listed to be heard in Sydney from May 1. The cases concern two separate developments; Barton's Governor Place, developed by Barton Nine and 13.1 Barton (entities of the Morris Property Group and the Doma Group), and Belconnen's Altitude Apartments, developed by Belconnen Lakeview (a subsidiary of Hindmarsh Group). According to the respective developments' websites, Governor Place has 171 apartments and Altitude has 348. Litigation funder IMF Bentham is behind the class action, and firm Corrs Chambers Westgarth is acting for the buyers. Assuming an average contract price of about $450,000, each owner could expect a refund of $40,000 if successful. The developers could be ordered to repay millions of dollars. The case will centre around the interpretation of Australian tax law and the contracts for sale. The buyers say the developers are liable to repay the amount equivalent to the GST, and are also liable for damages for breach of contract and contravention of the Australian consumer law. The developers deny the allegations. They say the purchase price was the amount in the contract, irrespective of GST. The developers also deny the allegations of breach of contract and of the consumer law. [GN] BCI COCA-COLA: Cohen Labor Suit Removed to C.D. Cal. ---------------------------------------------------- The case captioned Marc Cohen, individually and on behalf of all others similarly situated, Plaintiff, vs. BCI Coca-Cola Bottling Company of Los Angeles, Coca-Cola Refreshments USA, Inc., The Coca-Cola Company, Reyes Coca-Cola Bottling, LLC, and Does 1 through 20, inclusive, Defendants, inclusive, Case No. 19STCV08785 (Cal. Super., March 14, 2019), was removed to the United States District Court for the Central District of California on May 10, 2019 under Case No. 19-cv-04083. Cohen seeks redress for Defendants' failure to pay minimum wages, failure to pay all overtime wages, meal period violations, wage statement violations, waiting time penalties and unfair competition under California Law.[BN] Cohen is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Phone: (877) 206-4741 Fax: 866-633-0228 Email: tfriedman@toddflaw.com abacon@toddflaw.com - and - Lawrence W. Freiman, Esq. FREIMAN LEGAL 388 Market St., Suite 1300 San Francisco, CA 94111 Tel: (415) 213-4880 Defendants are represented by: Jennifer Robinson, Esq. LITTLER MENDELSON, P.C. 333 Commerce Street, Suite 1450 Nashville, TN 37201 Telephone: (615) 383-3033 Email: jenrobinson@littler.com - and - Sophia Behnia, Esq. Gal Gressel, Esq. LITTLER MENDELSON, P.C. 333 Bush Street, 34th Floor San Francisco, CA 94104 Telephone: (415) 433-1940 Email: sbehnia@littler.com ggressel@littler.com sboxer@littler.com BOSMAN TRUCKING: Johnson Suit Alleges FLSA Violation ---------------------------------------------------- Martaneze Johnson, James Hannah and Walter Cherry, on behalf of themselves and all others similarly situated v. Bosman Trucking, Inc., and Greg Tlustochowicz, Case No. 1:19-cv-02066 (N.D. Ill., March 26, 2019), is brought against the Defendants for violations of the Fair Labor Standards Act, the Illinois Minimum Wage Law, and the Chicago Minimum Wage Ordinance. The Plaintiffs alleged they were improperly classified as independent contractors and denied time and one half their regular rates of pay for hours worked over 40 in a workweek. The Plaintiffs were employed as shuttle drivers and performed duties for the Defendants related to transporting automobile parts between different areas of the plant yard via trailer under the direction of the Defendants' management. The Defendant Bosman Trucking owns and operates a trucking company that contracts its services to an automobile assembly plant and repair service yard located at 12600 S Torrance Ave., Chicago, Illinois 60633. The Defendant Tlustochowicz is the owner of Bosman Trucking.[BN] The Plaintiffs are represented by: John William Billhorn, Esq. BILLHORN LAW FIRM 53 West Jackson Blvd., Suite 840 Chicago, IL 60604 Tel: (312) 853-1450 CACERES INTERIOR: Gomez Sues Over Unpaid Overtime Wages ------------------------------------------------------- DARWIN ALEXANDER GARCIA GOMEZ and all others similarly situated, Plaintiff, v. CACERES INTERIOR PARTITIONS, INC, JORGE E. CACERES Defendant, Case No. 1:19-cv-22026-KMM (S.D. Fla., May 20, 2019) is an action arising under the Fair Labor Standards Act ("FLSA"). It is believed that the Defendant has employed several other similarly situated employees like Plaintiff who has not been paid overtime and/or minimum wages for work performed in excess of 40 hours weekly from the filing of this complaint back three years. Plaintiff worked an average of 58 hours of per week for Defendant and was paid an average of $19 per hour but was not paid the half-time overtime rate for the hours worked over 40 hours in a week as required by the Fair Labor Standards Act. Plaintiff therefore claims the half-time overtime rate based upon the applicable minimum wage for the hours worked above 40 in a week. Plaintiff worked for Defendant as a finisher of interior construction from on or about May 2017 through on or about September 20, 2018. CACERES INTERIOR PARTITIONS, INC, is a corporation that regularly transacts business within the Southern District of Florida.[BN] The Plaintiff is represented by: J.H. Zidell, Esq. J.H. Zidell, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Phone: (305) 865-6766 Fax: (305) 865-7167 Email: ZABOGADO@AOL.COM CALIFORNIA: McClenton Files Petition for Writ of Certiorari ----------------------------------------------------------- JOVAN MCCLENTON, the Petitioner, v. STATE OF CALIFORNIA, the Respondent, Case No. 18-9123 (U.S.), is an appeal to the Supreme Court of United States from a decision by the Court of Appeal of California, Second Appellate District, in Case No. B293648. The lower court decision date is November 15, 2018. The Petitioner filed a petition for a writ of certiorari and motion for leave to proceed in forma pauperis. Response due was June 3, 2019. Attorneys for the Petitioner: Leslie Beth Ringold, Esq. LOS ANGELES COUNTY PUBLIC DEFENDER 19-513 Clara Shortridge Foltz Criminal Justice Center 210 West Temple Street Los Angeles, CA 90012 E-mail: LRingold@pubdef.lacounty.gov CAWLEY & BERGMANN: Placeholder Bid for Class Certification Filed ---------------------------------------------------------------- In the class action lawsuit captioned WENDY UNTERSHINE, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. CAWLEY & BERGMANN, LLP, the Defendant, Case No. 2:19-cv-00654 (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. 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 CBC RESTAURANT: Pardue et al. Suit Moved to C.D. California ----------------------------------------------------------- AMBER PARDUE and JENNIFER VARGAS, on behalf of themselves and all others similarly situated, the Plaintiffs, vs. CBC RESTAURANT CORP., a Delaware corporation; JU LIANA ZHU, an individual; and DOES 1 through 100, inclusive, the Defendants, Case No. BC693274 (Filed April 30, 2019), was removed from the Superior Court of the State of California for the County of Los Angeles, to the U.S. Distict Court for the Central District of California on May 3, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-03920 to the proceeding. According to the complaint, Corner Bakery have had a consistent policy or practice of failing to pay overtime wages to Plaintiffs and other non-exempt employees in the State of California working at or from the Rancho Cucamonga location in violation of California state wage and hour laws as a result of, without limitation, Plaintiffs and similarly situated employees routinely working over 8 hours per day or 40 hours per week without being properly compensated. Corner Bakery is an American chain of cafes that specialize in pastries, breads, breakfast dishes, gourmet sandwiches, homemade soups, salads, and pasta.[BN] Attorneys for the Plaintiffs, on behalf of themselves and all others similarly situated: David D. Bibiyan, Esq. Diego Aviles, Esq. BIBIYAN LAW GROUP, P.C. 1801 Century Park East, Suite 2600 Los Angeles, CA 90067 Telephone: (3 10) 438-5555 Facsimile: (310) 300- 1705 E-mail: david@tomorrowlaw.com diego@tomorrowlaw.com CELGENE CORP: Bid to Dismiss NJ Consolidated Class Suit Underway ---------------------------------------------------------------- Celgene Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 25, 2019, for the quarterly period ended March 31, 2019, that the motion to dismiss filed in a consolidated class action suit pending before the U.S. District Court for the District of New Jersey remains pending. On March 29, 2018, the City of Warren General Employees' Retirement System filed a putative class action against the company and certain of its officers in the U.S. District Court for the District of New Jersey. The complaint alleges that the defendants violated federal securities laws by making misstatements and/or omissions concerning (1) trials of GED-0301, (2) 2020 outlook and projected sales of OTEZLA(R), and (3) the new drug application for Ozanimod. On May 3, 2018, a similar putative class action lawsuit against the company and certain of its officers was filed by Charles H. Witchcoff in the U.S. District Court for the District of New Jersey. The complaint alleges that defendants violated federal securities laws by making material misstatements and/or omissions concerning (1) trials of GED-0301, (2) 2020 outlook and projected sales of OTEZLA(R), and (3) the new drug application for Ozanimod. On September 27, 2018, the court consolidated the two actions and appointed a lead plaintiff, lead counsel, and co-liaison counsel for the putative class. On October 9, 2018, the court entered a scheduling order which requires lead plaintiff to file an amended complaint by December 10, 2018; defendants to file their motion to dismiss the amended complaint by February 8, 2019; lead plaintiff to file its opposition to the motion to dismiss by April 9, 2019; and defendants to file their reply by May 9, 2019. On December 10, 2018, the lead plaintiff filed its amended complaint. On February 8, 2019, defendants filed a motion to dismiss plaintiff's amended complaint in full, and the plaintiff filed its opposition on April 9, 2019. Celgene Corporation, a biopharmaceutical company, discovers, develops, and commercializes therapies for the treatment of cancer and inflammatory diseases worldwide. Celgene Corporation was founded in 1980 and is headquartered in Summit, New Jersey. CELLCO PARTNERSHIP: Court Vacates Scheduling Order in Rosenbohm --------------------------------------------------------------- The United States District Court for the Southern District of Ohio, Eastern Division issued an Opinion and Order vacating Court's Scheduling Order in the case captioned NEIL ROSENBOHM, Plaintiff, v. CELLCO PARTNERSHIP, Defendant. Civil Action No. 2:17-cv-731. (S.D. Ohio). This case arises under the Fair Labor Standards Act (FLSA) and the Ohio Minimum Fair Wage Standards Act, Ohio Revised Code Chapter (Ohio Act). Plaintiff worked for Defendant Cellco Partnership (d/b/a "Verizon") as a Solution Specialist. Plaintiff alleges that Defendant engaged in a scheme not to pay Solution Specialists and similarly-situated employees for the work they performed at Verizon store locations. Plaintiff alleges that Solution Specialists and similarly-situated employees were required to work off-the-clock at the end of shifts and to participate in lengthy unpaid online training courses. Random sampling is required to ensure the sample is representative of the opt-in class Defendant's Objection centers on the Undersigned's directive in the Scheduling Order that Second Stage opt-in discovery, and any potential trial or other testimony from opt-in plaintiffs, will proceed based upon a randomly selected sample size of 94 opt-in plaintiffs. The Defendant contends that limiting opt-in discovery to a random sample is based on a flawed assumption that the opt-in class is similarly situated (which is Plaintiff's burden to prove at the close of Second Stage discovery. Defendant argues that, to account for the heterogeneity of the opt-in class, the parties must each be allowed to select, in equal numbers, the identity of those opt-in plaintiffs to be deposed. The Defendant's position fails to appreciate fundamental principles of statistical sampling. The validity of a random sample does not depend on any pre-conceived assumptions about the characteristics of the population from which the sample is drawn. On the contrary, sampling allows a statistician to use data from a sample of a given population to draw conclusions about the entire population. That is, sampling, when performed in a statistically sound manner, will reveal whether there is heterogeneity among the opt-in plaintiffs such that final certification is or is not appropriate. If, as Defendant contends, the opt-in plaintiffs are not similarly situated, those differences will be reflected in the sample. But one can draw inferences about the larger population only if the sample is representative of that larger population. And representativeness is best ensured using random sampling. Conversely, any non-random sampling method increases the likelihood that the sample will be biased and not accurately represent the larger population. Hand-picking is almost certain to introduce a substantial amount of selection bias into the sample, such that the Court could not rely on the representativeness of the sample as to the population of all 3,875 opt-in plaintiffs. For these reasons, at the in-person conference and in the Scheduling Order, the Undersigned rejected the parties' original proposal that they each be permitted to hand-pick a certain number of opt-in plaintiffs who would be subject to discovery and instead ordered that 94 opt-in plaintiffs be selected at random. Two further points bear mentioning: First, the Defendant has not argued that it is entitled to take full discovery of all 3,875 opt-in plaintiffs. It has conceded, based on proportionality concerns under Fed. R. Civ. P. 26(b)(1), that full discovery of all opt-in plaintiffs is not feasible. Thus, the Defendant is not opposed to sampling or representative discovery itself; Defendant merely objects to the method of sample selection ordered by the Court. As explained supra, however, any method other than random sampling will introduce bias and decrease the reliability of the sample. Second, the Defendant was expressly invited by the Undersigned during the in-person discovery conference to submit expert testimony supporting the validity of its hand-picking proposal, and Defendant declined to do so. Instead, the Defendant's objection to random sampling is based on its bare assertion, unsupported by any authority, that the validity of a random sample depends on a flawed assumption that the opt-in class is similarly situated. As explained supra, Defendant's understanding is simply incorrect. The Undersigned therefore sees no reason to revisit the decision that any sampling of opt-in plaintiffs must be done randomly. Random sampling does not violate Defendant's due process rights According to the Defendant, limiting discovery to a random sample will also deprive Defendant of its due process right to develop every available defense in the final certification and trial proceedings. Thus, limiting discovery to a random sample of opt-in plaintiffs does not inherently impinge upon Defendant's due process rights. Courts have recognized, however, that defendants may be entitled to further discovery if they can demonstrate (not merely assert) that they cannot sufficiently develop their defenses based on an initial sample. Accordingly, discovery of the FLSA conditionally-certified class at this juncture remains limited to a random sample of 94 opt-in plaintiffs. However, the Defendant may, after completion of discovery with regard to the 94-plaintiff sample, move for leave to conduct further discovery if it can demonstrate why further discovery is necessary. Discovery as to the Putative Rule 23 Ohio Class The Defendant's Objection further complains that the random sample ordered by the Court fails to consider the putative Rule 23 Ohio class. The reason for this is simple: the parties did not ask the Court to resolve any discovery disputes related to the putative Rule 23 Ohio class, either in their proposed scheduling order or during the in-person discovery conference. Defendant raised the putative Ohio class for the first time in its Objection. The putative Ohio class, brought under Fed. R. Civ. P. 23, differs from the conditionally certified FLSA class, brought under the collective action provisions of 29 U.S.C. Section 216, in important respects. First, no certification of the Ohio class has yet occurred. At present, Plaintiff Rosenbohm is the only member of the putative Ohio class that is currently before the Court. Further, the absent Ohio class members have not yet been notified of the potential class action and will not be notified unless and until the Court certifies a class under Rule 23. And even if they are notified in the future, they will not be required under Rule 23 to affirmatively opt in to the Ohio class as were the FLSA class members; rather, upon class certification, they will automatically become members of the Rule 23 class unless they affirmatively opt out. In light of the time it has taken the parties and the Court to address the Defendant's objections and the upcoming deadlines in the existing Scheduling Order, the Court vacates the April 17, 2019 Scheduling Order. A full-text copy of the District Court's May 16, 2019 Opinion and Order is available at https://tinyurl.com/y2zq7j7q from Leagle.com. Neil Rosenbohm, on behalf of himself and all others similarly situated, Plaintiff, represented by Anthony J. Lazzaro , Chastity Lynn Christy, Michael Fradin, Fradin Law Office & Lori M. Griffin, Lazzaro Law Firm, LLC, 920 Rockefeller Building, 614 W. Superior Avenue, Cleveland, Ohio 44113. Cellco Partnership, doing business as, Verizon Wireless Defendant, represented by Tonya B. Braun -- tbraun@jonesday.com -- Jones Day & Stanley Weiner -- sweiner@jonesday.com -- Jones Day. CENTENE CORPORATION: Dennis Sues Over Blind-Inaccessible Website ---------------------------------------------------------------- Derrick U Dennis, on behalf of himself and all others similarly situated, Plaintiffs, v. CENTENE CORPORATION, Defendant, Case No. 1:19-cv-04659 (S.D. N.Y., May 21, 2019) is a civil rights action against Defendant for the Defendant's failure to design, construct, maintain, and operate its website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired people. The Defendant's denial of full and equal access to its website, and therefore denial of its products and services offered thereby and in conjunction with its physical locations, is a violation of the Plaintiff's rights under the Americans with Disabilities Act ("ADA"), says the complaint. Plaintiff seeks a permanent injunction to cause a change in Defendant's corporate policies, practices, and procedures so that Defendant's website will become and remain accessible to blind and visually-impaired consumers. Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read website content using his computer. Defendant operates a commercial website, www.fideliscare.org, which markets and sells health insurance for individuals and families. Defendant's website offers consumers the ability to purchase products and goods through its website for delivery.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. SHALOM LAW, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11415 Phone: (718) 971-9474 Facsimile: (718) 865-0943 Email: Jshalom@jonathanshalomlaw.com CHARTER COMMUNICATIONS: Harper Sues Over Labor Code Breach ---------------------------------------------------------- LIONEL HARPER, individually and on behalf of all others similarly situated and all aggrieved employees, Plaintiff, v. CHARTER COMMUNICATIONS, LLC, CHARTER COMMUNICATIONS, INC., and DOES 1 through 25, Defendants, Case No. 2:19-at-00392 (Cal. Super. Ct., Shasta Cty., May 17, 2019) is an action brought by Plaintiff individually and on behalf of a class of similarly situated employees who performed work for Defendants in California during the relevant time periods. On September 14, 2018, Plaintiff complied with the requirements of Labor Code by providing written notice via online filing to the Labor and Workforce Development Agency ("LWDA"), and via certified mail return receipt requested to Defendants, of the specific provisions of the Labor Code alleged to have been violated, including the facts and theories that support the alleged violations. Plaintiff did not receive notice from the LWDA that it intended to investigate the violations alleged in Plaintiff's written notice. Plaintiff therefore has complied with Labor Code's notice requirements and is authorized to commence a civil action under the Private Attorneys General Act ("PAGA"), says the complaint. Plaintiff worked for Defendants in California as a salesperson from September 2017 to March 2018. Defendants market and sell various services, including television, Internet, and phone services, in California and nationwide.[BN] The Plaintiff is represented by: Jamin S. Soderstrom, Esq. SODERSTROM LAW PC 3 Park Plaza, Suite 100 Irvine, California 92614 Phone: (949) 667-4700 Fax: (949) 424-8091 Email: jamin@soderstromlawfirm.eom CHECKERS DRIVE-IN: Lodge Sues Over Unsolicited Marketing -------------------------------------------------------- ROBERT LODGE, individually and on behalf of all others similarly situated, Plaintiff, v. CHECKERS DRIVE-IN RESTAURANTS, INC. a Florida Corporation, Defendant, Case No. 9:19-cv-80672-XXXX (S.D. Fla., May 21, 2019) seeks to secure redress for violations of the Telephone Consumer Protection Act ("TCPA"). To promote its services, Defendant engages in unsolicited marketing, harming thousands of consumers in the process. The Defendant's unsolicited text messages caused Plaintiff actual harm, including invasion of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Defendant's text messages also inconvenienced Plaintiff and caused disruption to his daily life, says the complaint. Through this action, Plaintiff seeks injunctive relief to halt Defendant's illegal conduct. Plaintiff also seeks statutory damages on behalf of himself and members of the class, and any other available legal or equitable remedies. Plaintiff is a natural person who, at all times relevant to this action, was a resident of Palm Beach County, Florida. Defendant is a fast-food burger chain restaurant.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Ave., Suite 1205 Miami, FL 33132 Phone (305) 479-2299 Facsimile (786) 623-0915 Email: efilings@shamisgentile.com gberg@shamisgentile.com - and - Scott Edelsberg, Esq. Jordan D. Utanski, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd. #607 Aventura, FL 33180 Phone: (305) 975-3320 Email: scott@edelsberglaw.com utanski@edelsberglaw.com - and - Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Phone: 954.400.4713 Email: mhiraldo@hiraldolaw.com CHEMOURS COMPANY: Accrues $22MM for Leach Settlement at March 31 ---------------------------------------------------------------- The Chemours Company has accrued US$22 million at March 31, 2019, for its obligation under the Leach settlement agreement wherein the Company must continue to provide water treatment designed to reduce the level of PFOA in water to six area water districts and private well users, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2019. The obligation was previously assigned to E. I. du Pont de Nemours and Company ("DuPont"), but was reassigned to Chemours after the Company's separation from DuPont on July 1, 2015. In 2004, DuPont settled a class action captioned Leach v. DuPont, filed in West Virginia state court, alleging that approximately 80,000 residents living near the Washington Works facility had suffered, or may suffer, deleterious health effects from exposure to PFOA in drinking water. Among the settlement terms, DuPont funded a series of health studies by an independent science panel of experts ("C8 Science Panel") to evaluate available scientific evidence on whether any probable link exists, as defined in the settlement agreement, between exposure to PFOA and disease. The C8 Science Panel found probable links, as defined in the settlement agreement, between exposure to PFOA and pregnancy-induced hypertension, including preeclampsia, kidney cancer, testicular cancer, thyroid disease, ulcerative colitis, and diagnosed high cholesterol. Under the terms of the settlement, DuPont is obligated to fund up to US$235 million for a medical monitoring program for eligible class members and pay the administrative cost associated with the program, including class counsel fees. The court-appointed Director of Medical Monitoring implemented the program and testing is ongoing with associated payments to service providers disbursed from an escrow account which the Company replenishes pursuant to the settlement agreement. As of March 31, 2019, approximately US$1.6 million has been disbursed from escrow related to medical monitoring. While it is reasonably possible that the Company will incur additional costs related to the medical monitoring program, such costs cannot be reasonably estimated due to uncertainties surrounding the level of participation by eligible class members and the scope of testing. In addition, under the Leach settlement agreement, DuPont must continue to provide water treatment designed to reduce the level of PFOA in water to six area water districts and private well users. At separation, this obligation was assigned to Chemours and is included in the US$22 million accrued for these matters at March 31, 2019 and December 31, 2018. The Chemours Company provides performance chemicals in North America, the Asia Pacific, Europe, the Middle East, Africa, and Latin America. It operates through three segments: Titanium Technologies, Fluoroproducts, and Chemical Solutions. The Chemours Company was founded in 2014 and is headquartered in Wilmington, Delaware. CITIGROUP INC: Faces Consolidated VRDO-Related Class Suit --------------------------------------------------------- Citigroup Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 30, 2019, for the quarterly period ended March 31, 2019, that the company has been named as a defendant in a consolidated class action suit related to variable rate demand obligations (VRDOs). In February and March 2019, certain financial institutions that served as remarketing agents for municipal bonds called variable rate demand obligations (VRDOs), including Citigroup, Citibank, Citigroup Global Markets Inc. (CGMI), Citigroup Global Markets Limited (CGML_ and numerous other industry participants, were named as defendants in putative class actions filed by the City of Philadelphia and the City of Baltimore in the United States District Court for the Southern District of New York. Plaintiffs allege that defendants colluded to set artificially high VRDO interest rates. The complaints assert violations of the Sherman Act, as well as claims for breach of contract and unjust enrichment, and seek damages and injunctive relief. On April 5, 2019, the two suits were consolidated for pre-trial purposes. Additional information concerning these actions is publicly available in court filings under the docket numbers 19-CV-1608 (S.D.N.Y.) (Furman, J.) and 19-CV-2667 (S.D.N.Y.) (Furman, J.). Citigroup Inc., a diversified financial services holding company, provides various financial products and services for consumers, corporations, governments, and institutions in North America, Latin America, Asia, Europe, the Middle East, and Africa. The company operates through two segments, Global Consumer Banking (GCB) and Institutional Clients Group (ICG). Citigroup Inc. was founded in 1812 and is headquartered in New York, New York. CITY OF CLEVELAND: Laborers International Sues Over Unpaid Wages ---------------------------------------------------------------- LABORERS INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION No. 860, and ROBERT BLATNICA, MARINO BRADY, JOSEPH P. CARDARELLA, DWANE CLAGGETT, ROBERT CONTE, CHARLES COOK, JOSEPH CORBO, MICHAEL J. DEL-ZOPPO, ANGELO DINUNZIO, DAVID EATHRIDGE, KURT B. EATON, JOE GANTOUS, MICHAEL GIAMPAOLO, RON GOLDBERG, HENRY HAIRSTON, MICHAEL HAYES, MICHAEL ILIANO, MATTHEW LOBUE, ROBERT LAMONICA, ROBERT MANDATO, JR., ANTHONY PALMISANO, ROBERT PERSINGER, CARMONE PINZONE, FRANK PEYSER, CHARLES RICE, MALCOM ROBERTSON, GARY STEWART, ROBERT SVHADOLNIK, ROLAND F. VLIZZI, ANTHONY WARD, AND BRANDON WILLIAMS, on behalf of themselves and all those similarly situated, Plaintiffs, v. CITY OF CLEVELAND HEIGHTS, OHIO, c/o City Manager Tanisha R. Briley and Law Director James Juliano, 40 Severance Circle, Cleveland Heights, Ohio 44118, Defendant, Case No. 1:19-cv-01136 (N.D. Ohio, May 17, 2019) is a collective action challenging Defendant's practices and policies of failing to include longevity pay in Plaintiffs and similarly situated employees' ("SSE") regular rates of pay. The Defendant has willfully failed to pay Plaintiff Employees and SSEs overtime compensation at the rate of one and one-half times their regular rate of pay for the hours they worked over 40 in a workweek, in violation of the Fair Labor Standards Act ("FLSA"). Plaintiff Laborers International Union of North America, Local Union No. 860 ("Local 860") is the exclusive bargaining representative for Plaintiff Class Representatives and SSEs and, in that capacity, requests injunctive relief preventing the City of Cleveland Heights from violating the FLSA, says the complaint. Plaintiff Local 860 has, at all times relevant hereto, been a bona fide organization of labor representing employees of Defendant working within the Department of Public Works. The Defendant City of Cleveland Heights, Ohio is a political subdivision.[BN] The Plaintiffs are represented by: Basil W. Mangano, Esq. Joseph J. Guarino, Esq. MANGANO LAW OFFICES CO., L.P.A. 2460 Fairmount Blvd., Suite 225 Cleveland Heights, OH 44106 Phone: (216) 397-5844 Fax: (216) 397-5845 Email: bmangano@bmanganolaw.com jguarino@bmanganolaw.com - and – Ryan K. Hymore, Esq. 3805 Edwards Road, Suite 550 Cincinnati, OH 45209 Phone: (513) 255-5888 Fax: (216) 397-5845 Email: rkhymore@bmanganolaw.com CJS SOLUTIONS: Court Refuses to Approve Settlement in Borup ----------------------------------------------------------- The United States District Court for the District of Minnesota issued a Memorandum Order denying Plaintiff's Motion for Approval of Settlement in the case captioned Timothy C. Borup, Plaintiff, v. The CJS Solutions Group, LLC d/b/a The HCI Group, Defendant. Shana Gray, Plaintiff, v. The CJS Solutions Group, LLC d/b/a The HCI Group, Defendant. Civ. Nos. 18-1647 (PAM/DTS), 19-1008 (PAM/DTS (D. Minn.). This Order pertains to two related FLSA class-action cases regarding worker classification. The Plaintiff's counsel in Gray once again seeks approval of the parties' February 2019 settlement agreement. Borup argues that the settlement in Gray was improperly obtained through a reverse auction, and seeks limited consolidation of these matters to resolve settlement issues. Settlement Approval The Gray settlement agreement includes some indicia of a reverse auction: the settlement value for collective action members is low, the attorney's fee total is high, and the fact that CJS took steps to cabin off these litigations from each other is at least indicative evidence of a reverse auction. Accordingly, additional discovery on the reverse auction issue is needed before the settlement can be approved. Gray may renew her Motion for Approval once the outstanding settlement issues have been resolved. Plaintiff's Motion for Approval of Settlement is denied without prejudice. A full-text copy of the District Court's May 16, 2019 Memorandum and Order is available at https://tinyurl.com/y3kqqsbn from Leagle.com. Timothy C. Borup, individually and on behalf of all others similarly situated, Plaintiff, represented by Kelly A. Lelo -- klelo@larsonking.com -- Larson King, LLP, T. Joseph Snodgrass -- jsnodgrass@larsonking.com -- Larson King, LLP & Thomas A. Jacobson, Swenson Lervick Syverson Anderson Trosvig Jacobson, PA, 710 Broadway, P.O. Box 787, Alexandria, MN 56308 The CJS Solutions Group, LLC, doing business as The HCI Group, Defendant, represented byClaire B. Deason, Littler Mendelson, P.A., Corey Christensen -- cchristensen@littler.com -- Littler Mendelson P.C. & Jacqueline E. Kalk -- jkalk@littler.com -- Littler Mendelson, PC. COMMUNITY HEALTH: To Appeal Class Certification Ruling in "Zwick" ----------------------------------------------------------------- Community Health Systems, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 1, 2019, for the quarterly period ended March 31, 2019, that the company has filed a petition for permission to appeal the court's order granting class certification with the United States Court of Appeals for the Sixth Circuit, in the Zwick Partners class action suit. Zwick Partners, LP and Aparna Rao, individually and on behalf of all others similarly situated v. Quorum Health Corporation, Community Health Systems, Inc., Wayne T. Smith, W. Larry Cash, Thomas D. Miller, and Michael J. Culotta, was previously filed in the United States District Court, Middle District of Tennessee and amended on April 17, 2017, to include Community Health Systems, Inc., Wayne T. Smith and W. Larry Cash as additional defendants. The plaintiffs seek to represent a class of Quorum Health Corporation (QHC) shareholders and allege that the failure to record a goodwill and long-lived asset impairment charge against QHC at the time of the spin-off of QHC violated federal securities laws. The District Court denied all defendants' motions to dismiss on April 20, 2018. The plaintiffs moved for class certification. Plaintiffs also amended their complaint on September 14, 2018. The company moved to dismiss the additional claims in the plaintiffs' September 14, 2018 amended complaint and responded to plaintiffs' class certification motion. On March 29, 2019, the court granted the company's motion to dismiss the additional claims. The court granted the plaintiffs' motion for class certification on that same date. On April 12, 2019, the company filed a petition for permission to appeal the court's order granting class certification with the United States Court of Appeals for the Sixth Circuit. Community Health said, "We believe the claims are without merit and will vigorously defend the case." Community Health Systems, Inc. is one of the largest publicly traded hospital companies in the United States and a leading operator of general acute care hospitals and outpatient facilities in communities across the country. The company provide healthcare services through the hospitals that we own and operate and affiliated businesses in non-urban and selected urban markets throughout the United States. The company is based in Franklin, Tennessee. COMPASS LENDING: Court Strikes S. Naiman's 1st Amended Complaint ---------------------------------------------------------------- The United States District Court for the District of Arizona strikes the Plaintiff's First Amended Class Action Complaint in the case captioned Sidney Naiman, Plaintiff, v. Compass Lending Corporation, Defendant. No. CV-19-01736-PHX-JJT. (D. Ariz.). Because the Plaintiff filed the First Amended Class Action Complaint without requesting leave of Court to do so, the Court presumes Defendant consented in writing to an amended Complaint under Federal Rule of Civil Procedure 15(a)(2). Local Rule 15.1(b) provides: "If a party files an amended pleading as a matter of course or with the opposing party's written consent, the amending party must file a separate notice of filing the amended pleading. The notice must attach a copy of the amended pleading that indicates in what respect it differs from the pleading which it amends, by bracketing or striking through the text that was deleted and underlining the text that was added. The amended pleading must not incorporate by reference any part of the preceding pleading, including exhibits. If an amended pleading is filed with the opposing party's written consent, the notice must so certify." Because Plaintiff failed to comply with Local Rule 15.1(b), the Court will strike the First Amended Class Action Complaint A full-text copy of the District Court's May 16, 2019 Order is available at https://tinyurl.com/y2kx7z8z from Leagle.com. Deborah Schick, individually and on behalf of a class of all persons and entities similarly situated, Plaintiff, represented by Trinette G. Kent -- tkent@kentlawpc.com -- Kent Law Offices & Anthony Paronich -- anthony@paronichlaw.com -- Paronich Law PC. CONVERGENT OUTSOURCING: Sheean Moves to Certify Three Classes ------------------------------------------------------------- The Plaintiff in the lawsuit titled Michael Sheean, on behalf of himself and others similarly situated v. Convergent Outsourcing, Inc., Case No. 2:18-cv-11532-GCS-RSW (E.D. Mich.), asks the Court to certify these classes: a. TCPA class 1: All persons throughout the United States (1) to whom Convergent Outsourcing, Inc. placed, or caused to be placed, a call, (2) directed to a number assigned to a cellular telephone service, but not assigned to the intended recipient of Convergent Outsourcing, Inc.'s calls, (3) by using an automatic telephone dialing system or an artificial or prerecorded voice, (4) from November 11, 2016 through the date of class certification; b. TCPA class 2: All persons throughout the United States (1) to whom Convergent Outsourcing, Inc. placed, or caused to be placed, a call, (2) directed to a number assigned to a cellular telephone service, (3) by using an automatic telephone dialing system or an artificial or prerecorded voice, (4) from November 11, 2016 through the date of class certification, (5) after Convergent Outsourcing, Inc. was instructed to stop placing calls to his or her telephone number; and c. FDCPA class: All persons throughout the United States (1) to whom Convergent Outsourcing, Inc. placed, or caused to be placed, a call, (2) from May 15, 2017 through the date of class certification, (3) and in connection with the collection of a consumer debt, (4) after Convergent Outsourcing, Inc. was instructed to stop placing calls to his or her telephone number. Mr. Sheean also asks the Court to appoint him as the class representative, and to appoint Greenwald Davidson Radbil PLLC as class counsel.[CC] The Plaintiff is represented by: Michael L. Greenwald, Esq. James L. Davidson, Esq. Alexander D. Kruzyk, Esq. GREENWALD DAVIDSON RADBIL PLLC 7601 N. Federal Highway, Suite. A-230 Boca Raton, FL 33487 Telephone: (561) 826-5477 Facsimile: (561) 961-5684 E-mail: mgreenwald@gdrlawfirm.com jdavidson@gdrlawfirm.com akruzyk@gdrlawfirm.com - and - Aaron D. Radbil, Esq. GREENWALD DAVISON RADBIL PLLC 401 Congress Avenue, Suite 1540 Austin, TX 78701 Telephone: (512) 803-1578 Facsimile: (561) 961-5684 E-mail: aradbil@gdrlawfirm.com COOK COUNTY, IL: Brown, et al. Seek Class Certification ------------------------------------------------------- In the class action lawsuit CRYSTAL BROWN, et al., on Behalf of Themselves and a Class of Similarly Situated Persons, the Plaintiffs, vs. COOK COUNTY; AMY CAMPANELLI, in her capacity as Public Defender of Cook County; and THOMAS DART, in his official capacity as Sheriff of Cook County, the Defendants, Case No. 1:17-cv-08085 (N.D. Ill.), the Plaintiffs ask the Court to grant their motion for class certification.[CC] Plaintiffs' Attorneys: Robin Potter, Esq. M. Nieves Bolanos, Esq. POTTER & BOLANOS, P.C. 111 East Wacker Drive, Suite 2600 Chicago, IL 60601 Telephone: 312 861-1800 E-mail: robin@potterlaw.org nieves@potterlaw.org COOK COUNTY, IL: Howard et al. Seek Class Certification ------------------------------------------------------- In the class action lawsuit, SDAHRIE HOWARD, et al., the Plaintiffs, vs. COOK COUNTY SHERIFF'S OFFICE et al., the Defendants, Case No. 1:17-cv-08146 (N.D. Ill.), the Plaintiffs bring their claims under Title VII of the Civil Rights Act of 1964, the Illinois Civil Rights Act, and the Equal Protection Clause of the United States Constitution on behalf of a proposed Class defined as: "all women who have been employed by the CCSO at the Jail, or as Court Services deputies at the Leighton Courthouse, or by the County in positions with Cermak Health Services, at any time since April 23, 2015, except women who, during that period, have held the positions to Complaint." The class is represented by all Plaintiffs: Sdahrie Howard, Denise, Hobbs, Ellenor Altman, Tavi Burroughs, Dominque Freeman, Kimberly Crawford-Alexander, Esther Jones, Balvina Ranney, Tawanda Wilson, and Susana Plasencia.[CC] Attorneys for the Plaintiffs: Noelle Brennan, Esq. Kristin Carter, Esq. Naomi Frischv, Esq. NOELLE BRENNAN & ASSOCIATES, LTD. 20 S. Clark Street, Suite 1530 Chicago, IL 60603 Telephone: 312 422 0001 E-mail: nbrennan@nbrennan-associates.com kcarter@nbrennan-associates.com nfrisch@nbrennan-associates.com - and - Caryn Lederer, Esq. Kate E. Schwartz, Esq. Emily R. Brown, Esq. HUGHES SOCOL PIERS RESNICK & DYM, LTD. 70 W. Madison St., Suite 4000 Chicago, IL 60602 Telephone: 312 604 2630 E-mail: clederer@hsplegal.com kschwartz@hsplegal.com ebrown@hsplegal.com - and - Helly B. Kulwin, Esq. Jeffrey R. Kulwin, Esq. Rachel A. Katz, Esq. KULWIN , MASCIOPINTO & KULWIN, LLP 161 N. Clark Street, Suite 2500 Chicago, IL 60601 Telephone: 312 641 0300 E-mail: skulwin@kmklawllp.com jkulwin@kmklawllp.com rkatz@kmklawllp.com - and - Cyrus Mehri, Esq. Ellen Eardley, Esq. Michael Lieder, Esq. MEHRI & SKALET, PLLC 1250 Connecticut Ave., NW Washington, D.C. 20036 Telephone: 202 822 5100 E-mail: CMehri@findjustice.com EEardley@findjustice.com MLieder@findjustice.com - and - Marni Willenson, Esq. Samantha Kronk, Esq. WILLENSON LAW, LLC 542 S. Dearborn St., Suite 610 Chicago, IL 60605 Telephone: 312 508 5380 E-mail: marni@willensonlaw.com skronk@willensonlaw.com CUNNINGHAM RESTAURANT: Leslie Suit Alleges FLSA Violation --------------------------------------------------------- James Leslie, on behalf of himself and all others similarly situated v. Cunningham Restaurant Group LLC, Case No. 1:19-cv-00221 (S.D. Ohio, March 26, 2019), seeks to recover unpaid overtime wages and all allowable damages under the Fair Labor Standards Act. The Plaintiff worked over 40 hours as a Manager in Training in one or more workweeks, but did not receive overtime premiums on one or more regularly scheduled pay dates within the relevant period for hours worked as MITs in excess of 40 in those workweeks, says the complaint. The Plaintiff worked as a salary-paid MIT, training to become validated as a front of house manager at the Bru Burger Bar location at 41 E. 6th St., Cincinnati, Ohio 45202 approximately from April 2018 to May 2018. The Defendant owned and operated approximately 30 restaurant locations in Ohio, Indiana, and Kentucky during the FLSA relevant period under the various brand names of Bru Burger Bar, Tavern at the Point, Nesso Coastal Italia, Vida, Stone Creek Dining Company, Provision, Livery, Rize, Mesh, Union 50, Boulder Creek Dining Company, Charbonos, Moerlein Lager House, and Cafe 251. [BN] The Plaintiff is represented by: Daniel I. Bryant, Esq. BRYANT LEGAL, LLC 1550 Old Henderson Road, Suite 126 Columbus, OH 43220 Tel: (614) 704-0546 Fax: (614) 573-9826 E-mail: dbryant@bryantlegalllc.com CVS HEALTH: Court Dismisses Kroessler's FDCA Suit ------------------------------------------------- The United States District Court for the Southern District of California issued an Order granting Defendant's Motion to Dismiss in the case captioned JAMES KROESSLER, individually and on behalf of all others similarly situated, Plaintiff, v. CVS HEALTH CORPORATION, Defendant. Case No. 19-CV-277-CAB-JLB. (S.D. Cal.). Plaintiff James Kroessler filed a putative consumer class action complaint against Defendant CVS Health Corporation alleging false and misleading advertising of Defendant's CVS Health glucosamine joint health products. The complaint alleges violations of California's Unfair Competition Law, California Business & Professions Code Section (UCL); California's Consumer Legal Remedies Act, California Civil Code Section 1750, et. seq. (CLRA); and Breach of Express Warranty. Motion to Dismiss for Failure to State a Claim under Rule 12(b)(6) Under Federal Rule of Civil Procedure Rule 12(b)(6), a party may bring a motion to dismiss based on the failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege enough facts to state a claim to relief that is plausible on its face. The Defendant moves to dismiss on the following grounds: (1) Plaintiff's CLRA and UCL state law claims are preempted by the Federal Food, Drug, and Cosmetic Act (FDCA) as amended by the Nutrition Labeling and Education Act (NLEA); (2) Plaintiff lacks standing to pursue injunctive relief; (3) Plaintiff only purchased one of the six Products identified and therefore lacks standing to assert any claims, including any putative class claims, relating to Products he did not purchase; and (4) the complaint fails to state a claim under the CLRA and UCL because it is not pled with specificity under Federal Rule of Civil Procedure 9(b) Pre-emption under the FDCA as amended by the NLEA First, the Defendant contends the Plaintiff's state law false advertising claims are preempted under the FDCA. The NLEA expressly pre-empts any state law that establishes any requirement respecting any claim of the type described in section 343(r)(1) of this title made in the label or labeling of food that is not identical to the requirement of section 343(r) of this title. The NLEA also provides that no state may directly or indirectly establish any requirement for the labeling of food that is not identical" to the federal requirements. The Defendant contends that the challenged Representations are all permissible structure/function claims that comply with federal labeling requirements for dietary supplements, meaning the Plaintiff's state law false advertising claims are expressly pre-empted. The Plaintiff counters that (1) the Representations are not proper structure/function claims because they suggest effects on characteristic signs and symptoms of osteoarthritis; and (2) regardless of whether the Representations are structure/function claims or disease claims, the Representations are false and misleading and therefore his state law claims are not inconsistent with the federal requirements. Although the FDCA requires manufacturers to have substantiation for their structure/function claims, California law does not allow private plaintiffs to demand substantiation for advertising claims. As applied here, the NLEA's pre-emption provision pre-empts the Plaintiff's CLRA, UCL and breach of express warranty claims. The Plaintiff alleges the Defendant's Representations are improper structure/function claims because they suggest effects on characteristic signs and symptoms of osteoarthritis. The Plaintiff contends that the FDA noted that reduces joint paint is a disease claim and the FDA has issued warning letters to advertisers of glucosamine supplements who advertise their products will do things like improve joint mobility. However, the Representations do not purport to reduce or improve anything nor do they mention joint pain. The Representations do not suggest treatment or prevention of a disease and satisfy the requirements under the NLEA for structure/function claims. Therefore, the Representations are proper structure/function claims according to the federal requirements. The Plaintiff also contends that regardless of whether the Representations are structure/function claims or disease claims, the Representations are false and misleading and therefore his state law claims are not inconsistent with the federal requirements. The Plaintiff does not argue that the Defendant's Representations are false or misleading because the Defendant fails to reveal material facts with respect to consequences from taking the Defendant's Products. While the Plaintiff cites to numerous studies and clinical trials to demonstrate that glucosamine and other primary ingredients in the Products are ineffective at supporting or benefiting joint health, the federal requirements only require that the manufacturer has substantiation that the statement is truthful and not misleading. The FDCA does not define the term substantiation, however FDA guidance advances a common sense interpretation of substantiation, as meaning competent and reliable scientific evidence. Plaintiff's citation to studies does not equate to Defendant lacking competent and reliable scientific evidence of its own that establishes the necessary substantiation. Furthermore, California law does not allow private plaintiffs to demand substantiation for advertising claims. Plaintiff's breach of express warranty claim is premised on the same theory that the Representations are false and misleading. However, because Defendant's Representations are proper structure/function claims as permitted by the federal requirements, Plaintiff's breach of express warranty claim would also seek to impose state-law requirements that differ from the federal requirements. Accordingly, the Plaintiff's state law false advertising claims under the CLRA, UCL, and breach of express warranty are preempted and therefore are dismissed with prejudice. A full-text copy of the District Court's May 16, 2019 Order is available at https://tinyurl.com/y26jsmq2 from Leagle.com. James Kroessler, individually, and on behalf of all others similarly situated, Plaintiff, represented by Timothy G. Blood -- tblood@bholaw.com -- Blood Hurst & O'Reardon, LLP. CVS Health Corporation, Defendant, represented by Amy Pesapane Lally -- alally@sidley.com -- Sidley Austin LLP &Adriane K. Peralta -- ADRIANE.PERALTA@SIDLEY.COM -- Sidley Austin LLP. DEUTSCHE BANK: Questions in L. Lima Suit Certified to Hawaii Ct. ----------------------------------------------------------------- The United States District Court for the District of Hawaii issued an Order Certifying Question to the Supreme Court in the case captioned LIONEL LIMA, JR., et al., individually and on behalf of all others similarly situated, Plaintiffs, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, Defendant, EVELYN JANE GIBO, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. U.S. BANK NATIONAL ASSOCIATION, Defendant, DAVID EMORY BALD, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. WELLS FARGO BANK, N.A., Defendant. Civ. Nos. 12-00509 SOM-WRP, 12-00514 SOM-WRP, 13-00135 SOM-RT (D. Haw.). This court therefore respectfully asks the Hawai'i Supreme Court to exercise its discretion to accept and decide the certified question. The action arises from alleged conduct relating to the nonjudicial foreclosure of properties owned by Plaintiffs. Plaintiff Borrowers alleged that Defendant Banks and Rosen had breached their duties in selling the properties when they advertised the foreclosure sales as sales by quitclaim deed and postponed the sales without publishing notices of new dates and times. STANDARD FOR CERTIFYING A QUESTION. The Hawai'i Supreme Court has jurisdiction and power to answer, in its discretion, any question of law reserved by a circuit court, the land court, or the tax appeal court, or any question or proposition of law certified to it by a federal district or appellate court if the supreme court shall so provide by rule. When a federal district court or appellate court certifies to the Hawai'i Supreme Court that there is involved in any proceeding before it a question concerning the law of Hawai'i that is determinative of the cause and that there is no clear controlling precedent in the Hawai'i judicial decisions, the Hawai'i Supreme Court may answer the certified question by written opinion. QUESTION OF LAW TO WHICH AN ANSWER IS SOUGHT AND EFFECT OF AN ANSWER ON THE PROCEEDINGS. The question to which an answer is sought asks: When (a) a borrower has indisputably defaulted on a mortgage for real property; (b) a lender has conducted a non-judicial foreclosure sale but has not strictly complied with the requirements governing such sales; and (c) the borrower sues the lender over that noncompliance after the foreclosure sale and, if the property was purchased at foreclosure by the lender, after any subsequent sale to a third-party purchaser, may the borrower establish the requisite harm for liability purposes under the law of wrongful foreclosure and/or section 480-2 of Hawai'i Revised Statutes by demonstrating the loss of title, possession, and/or investments in the property without regard to the effect of the mortgage on those items? LEGAL CIRCUMSTANCES OUT OF WHICH THE CERTIFIED QUESTION ARISES. Recently, the Hawai'i Supreme Court has issued several opinions relating to wrongful foreclosure and UDAP claims, some with factual allegations similar to those raised in Lima, Gibo, and Bald. The Ninth Circuit and federal district judges in this jurisdiction have also applied Hawai'i substantive law to analyze such claims. However, the case law addressing nonjudicial foreclosures does not provide a clear answer to the certified question. This court views as unsettled how the harm issue should be addressed in the context of both the wrongful foreclosure tort claims and the UDAP claims before it. Stated in its starkest terms, resolving the parties' dispute (and answering the certified question) could leave Plaintiff Borrowers with no recovery or with a windfall. In other words, in trying to discern where the burdens lie, this court is not engaging in a purely philosophical exercise. One might think that everything will sort itself out if this court simply allows the cases to proceed, and that whether the mortgage debt is considered as a liability issue or as a setoff issue will not matter to the final judgments. That would ignore the status of the three cases, particularly the class action issues. Far from trying to determine how many angels can dance on the head of a pin, this court is trying to parse the governing law in a manner that will allow these cases to proceed in an orderly fashion. Wrongful Foreclosure Tort Claims The Hawai'i Supreme Court has not yet identified the elements of a wrongful foreclosure claim specifically in the nonjudicial foreclosure context, but it has stated that generally, if a foreclosure is conducted negligently or in bad faith to the detriment of the mortgagor, the mortgagor may assert a claim of wrongful foreclosure by establishing the following elements: (1) a legal duty owed to the mortgagor by the foreclosing party (2) a breach of that duty (3) a causal connection between the breach of that duty and the injury sustained and (4) damages. It is unclear whether the effect of the mortgage must be considered when determining whether a borrower has provided evidence of injury and damages in its prima facie case of wrongful foreclosure. As stated above, the only evidence of harm provided by Plaintiff Borrowers is evidence of the loss of title, possession, and investments in the properties, as if all of these attach to property owned free and clear. Generally, tort claims require the plaintiff to show that the harm would not have occurred' in the absence of that is, but for the defendant's conduct. It is undisputed that Plaintiff Borrowers defaulted on their mortgages and were subject to foreclosure. If Plaintiff Borrowers' harm is the loss of title, possession, and investments in their properties, that loss might well have occurred even if Defendant Banks had not engaged in the alleged advertising, publication, and postponement practices. That is, even if Defendant Banks had conducted the nonjudicial foreclosure proceedings according to all applicable requirements, Plaintiff Borrowers' properties might still have been sold at foreclosure. Possibly, the harm to Plaintiff Borrowers should be viewed as the loss of title, possession, and investments in their properties earlier than the loss would have occurred with properly conducted foreclosures. This interpretation recognizes that the foreclosure sales of the properties were inevitable given Plaintiff Borrowers' defaults, but that the sales should have been redone to comply with all requirements governing the manner of foreclosure. In other words, even if Plaintiff Borrowers' properties would have eventually been sold (absent evidence that they could have cured their defaults had the sales been postponed), they suffered harm from Defendant Banks' premature selling of the properties. However, even this characterization of harm raises the question of how to deal with Plaintiff Borrowers' mortgages. If Plaintiff Borrowers can claim only the loss of something they had in the first place, then how can they ignore the mortgages, as they never had unencumbered interests in their properties? Absent the foreclosure sales, Plaintiff Borrowers would have continued to be obligated to make their mortgage payments. And absent any noncompliance with foreclosure requirements, Plaintiff Borrowers' mortgages would have been taken into account. Under this line of reasoning, Plaintiff Borrowers themselves arguably must include evidence of their outstanding mortgage debt in claiming harm in the form of loss of title, possession, and investments. That is, they cannot claim as harm the loss of something they never had. But this court cannot say that this line of reasoning reflects Hawai'i law on the appropriate remedy in all wrongful foreclosure cases. The Hawai'i Supreme Court noted that the classic remedy in such circumstances would be return of title and possession, but that money damages may be substituted for title and possession in certain instances pursuant to the equitable powers of a court in adjudicating a case arising from a mortgage foreclosure. That foreclosure price was far below the more than $1.3 million that the Santiagos had paid just two years earlier. The Hawai'i Supreme Court appears to have been intent on avoiding a huge windfall to the lender. The Court did not expressly refer to any windfall to the victimized borrowers, but the total out-of-pocket losses of $1,412,790.79 resulting from the wrongful foreclosure appears to have disregarded any remaining mortgage obligation, and to have ended up compensating the Santiagos for payments made even during the years they occupied the property. Thus, the Santiagos were repaid whatever they had spent, were left with no debts, and were in effect given rent-free occupancy before losing title. Plaintiff Borrowers therefore read Santiago as establishing that, under Hawai'i law, borrowers who have been subjected to wrongful foreclosures may end up debt-free, and reimbursed for all payments made relating to the property or to the foreclosure. If the effect of the mortgage does matter in the harm analysis, such that a borrower whose debt exceeds the value of the property does not suffer harm, that of course leaves the question of how to determine the value of the property. Defendant Banks offer the foreclosure prices as evidence of value, but this court is not here adopting that approach or including that issue in the certified question. UDAP Claims To state a UDAP claim, a plaintiff must demonstrate: (1) a violation of section 480-2 (2) injury to the consumer caused by such a violation and (3) proof of the amount of damages. The Ninth Circuit said it was not enough for a debtor to simply list as damages Debtor's loss of equity in her property, the rental value of the property for the time Debtor was apparently excluded from possession, and attorneys' fees accrued in the state court ejectment action. On remand, to properly narrow the inquiry to the damage caused by Lenders' deceptive postponement, the bankruptcy court was directed to determine the difference, if any, between Debtor's situation had Lenders properly postponed the foreclosure sale and Debtor's actual situation, given that the sale was improperly postponed. The Clerk of Court is directed to transmit a copy of this order to the Hawai'i Supreme Court under official seal of the United States District Court of the District of Hawaii. The court directs the Clerk to administratively close all three cases while the matter is pending in the Hawai'i Supreme Court. A full-text copy of the District Court's May 16, 2019 Order is available at https://tinyurl.com/y2fv9mm4 from Leagle.com. Lionel Lima, Jr., individually and on behalf of all those similarly situated, Barbara-Ann Delizo-Lima, individually and on behalf of all those similarly situated & Calvin Jon Kirby, III, individually and on behalf of all those similarly situated, Plaintiffs, represented by James J. Bickerton -- bickerton@bsds.com -- Bickerton Law Group LLLP, Raymond C. Cho , Affinity Law Group, Van-Alan H. Shima , Affinity Law Group, 1188 Bishop St.Suite 3408Honolulu, HI 96813, Bridget G. Morgan-Bickerton -- morgan@bsds.com -- Bickerton Law Group LLLP, John F. Perkin – perkin@perkinlaw.com -- Perkin & Faria & Stanley H. Roehrig , Law Office of Stanley H. Roehrig, 101 Aupuni St # 124, Hilo, HI 96720 Deutsche Bank National Trust Company, identified in the Notice of Removal as defendant "solely in its trustee capacity", Defendant, represented by Andrew V. Beaman -- abeaman@chunkerr.com -- Chun Kerr LLP, Bernard J. Garbutt, III -- bernard.garbutt@morganlewis.com -- Morgan Lewis & Bockius, LLP, pro hac vice, Anna S. Goldenhersh -- anna.goldenhersh@morganlewis.com -- Morgan Lewis & Bockius, LLP, pro hac vice, Brian M. Jazaeri -- brian.jazaeri@morganlewis.com -- Morgan Lewis & Bockius, LLP, pro hac vice, Grant MacQueen -- grant.macqueen@morganlewis.com -- Morgan, Lewis & Bockius, LLP, pro hac vice, Gregory T. Fouts -- gregory.fouts@morganlewis.com -- Morgan, Lewis & Bockius, LLP, pro hac vice & Megan A. Suehiro -- megan.suehiro@morganlewis.com -- Morgan, Lewis & Bockius LLP. DISTRICT OF COLUMBIA: Arbitration Stay in WTU's Suit Affirmed ------------------------------------------------------------- The District of Columbia Court of Appeals issued an Opinion affirming the Trial Court's judgment granting Defendant's Motion to Stay Arbitration in the captioned WASHINGTON TEACHERS' UNION, Appellant, v. DISTRICT OF COLUMBIA PUBLIC SCHOOLS, Appellee. No. 17-CV-1156. (D.C.). The Washington Teachers' Union (WTU) filed such a grievance under its collective bargaining agreement (CBA) with the District of Columbia Public Schools (DCPS). In pursuing the group grievance, WTU was purporting to represent over 180 teachers who had received less than Effective ratings under the IMPACT evaluation process. These teachers were placed on different levels of probation, and some even lost their jobs. Thus, the union citing thirty-two examples of unfair, arbitrary and capricious implementation and application" of IMPACT sought arbitration from the American Arbitration Association (AAA) to rescind the negative consequences of those evaluations, including restoration of all lost salaries, benefits, and privileges of employment. The trial court granted DCPS's motion to permanently stay the arbitration. The court was persuaded that the group grievance filed by the Union is not arbitrable because DCPS did not consent to submitting this type of kitchen-sink grievance to arbitration. To the extent that the Union is challenging procedures under the IMPACT process, it is not doing so in a way that the CBA contemplates. Even though the remedy that WTU was seeking was not phrased as a challenge to the evaluation judgments themselves, the court concluded that WTU's carefully worded phrasing was nonetheless aimed at challenging such judgments, as forbidden by WTU 1: The remedies sought by the Union in its demand for arbitration include reinstating fired teachers, restoring all compensation and benefits, and purging any references to the evaluation judgments from employment records. These remedies, taken together, are tantamount to eliminating or rescinding the ratings themselves. The fundamental question presented is the extent to which this court may lawfully determine whether the class/group grievance at issue here is arbitrable. 1. As a matter of law, does the court or an arbitrator determine whether an alleged class/group grievance is arbitrable under the CBA? 2. If the appropriate authority determines that a class/group grievance is arbitrable under the CBA, does the same authority define its proper scope? 3. Once the appropriate authority has determined the proper scope of a class/group grievance under the CBA, which authority, court or arbitrator, lawfully determines whether the class/group grievance is arbitrable in this case? As a matter of law, does the court or an arbitrator determine whether a "class/group grievance" is arbitrable under the CBA? As to the first issue, D.C. Code Section 16-4406(b) (2012 Repl.) provides: The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate. The Court concludes, accordingly, that the court, not an arbitrator, must determine whether WTU may pursue arbitration of a class/group grievance against DCPS under the CBA. Pursuant to this authority, the Court further concludes, as did the trial court, contrary to WTU's lead argument that CBA Article 6.4.3.7 is the only CBA source authorizing arbitration of a class/group grievance. If the appropriate authority determines that a group grievance is arbitrable under the CBA, does the same authority define its proper scope? This brings to the Court to the second issue: does the court or an arbitrator define matter of general application? Put more specifically, once the court has concluded that a group grievance is arbitrable under CBA Article 6.4.3.7, which decision-maker determines the permitted scope of that arbitration its outside limit on the arbitrator's authority to decide the case? Is that authority inherent in the court's threshold (commonly called a gateway or substantive) determination of arbitrability, or is it a distinct procedural decision traditionally left to the arbitrator?. To avoid fundamentally incompatible results, this court must therefore answer a second question: at what level of generality should matter of general application be defined, given no elaboration of its meaning in the CBA? To say simply that the matter covers all complaints of employees who are similarly situated, for example, or all grievances that have a common thread, as the trial court found wanting here, would seem far too general. As expressed at oral argument, WTU contends that a group grievance alleging a matter of general application embraces a commonality defined merely as an IMPACT process violation. This definition thus includes all thirty two alleged violations, reflecting a substantial variety of alleged evaluation lapses, to the detriment of over 180 teachers, including an indefinite number not identified in the pleadings. DCPS, to the contrary, would limit the definition to a common injury to each individual grievant in the alleged group, meaning an injury caused by the same kind of alleged IMPACT violation. DCPS added that WTU failed to allege a single fact applicable to the entire group of over 180 named grievants," thereby implying that even if WTU's alleged group of grievants could be divided into subgroups characterized by common injuries, WTU would have to begin anew by allocating individual grievants to a very large number of subgroups for separate arbitrations. Second, the Court cannot agree with WTU that sufficient commonality for a matter of general application can be achieved by bundling together a variety of injuries caused by multiple violations of the IMPACT process. That would permit arbitration of a single claim that not even our class action rules, if applicable, would permit. The Court agrees with DCPS that a grievant's injury is the essential commonality required for a group arbitration without further limitation by reference to the evaluator who may have caused it. Third, according to CBA Article 6.4.3.3, the arbitrator may hear and decide only one grievance in each case, meaning that a group reflecting one type of injury cannot be joined with arbitration of another type of injury. In sum, a matter of general application, as applied here, is a group grievance defined by reference to injuries that the individual grievants have in common. Otherwise, the Court can discern no limiting principle that could justify a collective definition short of all process violations, as proposed by WTU a definition that would permit an agglomeration of instances far too unwieldy for compliance with CBA Article 6.4.3.3, which limits arbitration including group grievance arbitration to only one grievance in each case. Once the appropriate authority has determined the proper scope of a group grievance under the CBA, which authority, court or arbitrator, lawfully determines whether the "group grievance" is arbitrable in this case? This brings us, finally, to the third issue: should this court, or an arbitrator, determine whether WTU may pursue arbitration of this particular group grievance brought against DCPS? The trial court aptly characterized the thirty-two alleged violations of IMPACT asserted by WTU as a kitchen-sink group of grievances, applicable without specification to more than 180 grievants. Thus, WTU has alleged a potpourri of grievances, not expressly tied to particular individuals, creating an alleged group grievance far broader than the words matter of general application could possibly accommodate under the common injury test for commonality. As a matter of law, no arbitrator could rationally conclude that the collection of grievances presented here by WTU could be structured as a matter of general application arbitrable, as required, in a single case. For future cases, however, a substantive determination the arbitral scope has now been established as the platform from which an arbitrator may address all procedural issues. Arbitrators will have the uniform guidance required to decide the threshold question whether a grievance claimed to be an Article 6.4.3.7 matter of general application covering multiple individuals is arbitrable. In light of the foregoing analysis, the Court must affirm the trial court's permanent stay of the particular arbitration WTU seeks here. On the other hand, this affirmance is without prejudice. It does not preclude WTU from trying again to present a group grievance or multiple group grievances each circumscribed by the required common injury. The judgment of the trial court is affirmed, without prejudice as explained. A full-text copy of the D.C. App.'s May 16, 2019 Opinion is available at https://tinyurl.com/yyr6ppe7 from Leagle.com. Daniel M. Rosenthal -- daniel@dbrlawfirm.com -- with whom Lee W. Jackson -- lwjackson@jamhoff.com -- and Alice C. Hwang -- achwang@jamhoff.com -- were on the brief, for appellant. Mark J. Murphy -- mark.murphy@huschblackwell.com -- was on the brief for Teamsters Local Union No. 639 Amicus Curiae, in support of Washington Teachers' Union, appellant. Holly M. Johnson, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, and Stacy L. Anderson, Acting Deputy Solicitor General, were on the brief, for appellee District of Columbia. DISTRICT OF COLUMBIA: Court Narrows Claims in Guns Seizure Suit --------------------------------------------------------------- The United States District Court for the District of Columbia issued a Memorandum Opinion granting in part and denying in part Defendant's Motion to Dismiss in the case captioned MAGGIE SMITH et al., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant. Civil Case No. 15-737. (D.D.C.). This matter began when D.C. police pulled-over Maggie Smith, a 34-year-old nurse from North Carolina without a criminal record who visited D.C. in June 2014. During the traffic stop, she told the officer, as she had been taught to do in her gun ownership class that she was carrying a handgun licensed in her home state. So police arrested her, seized her firearm under Section 22-4517, and took her to the D.C. jail, where they strip-searched and held her overnight until the U.S. Attorney charged her. Though the District dismissed those charge's seven months later, Smith's gun remains in police custody. Police arrested one new plaintiff, Cpl. Frederick Rouse, after housekeeping found two handguns and a scope in his D.C. hotel room. Both handguns were licensed in Maryland, where Rouse a senior engineer at the Defense Information Systems Agency resides. After Rouse spent two nights in jail, the D.C. Attorney General charged him with violating Sections 7-2502.01 and 7-2506.01. The District eventually dismissed the charges without prejudice at a pre-trial status conference, though it had earlier successfully opposed Rouse's motion to dismiss. Police pulled-over another new plaintiff, Gerard Cassagnol, after receiving a tip he had a gun in the car. He volunteered the gun's location to the officers, which was unloaded and properly contained in a locked gun-safe. But he spent two nights in jail before the U.S. Attorney charged him with violating Sections 7-2502.01, 7-2506.01, and 22-4504. When the United States dropped the charges post-Palmer, the D.C. Attorney General reinstated the charges for Sections 7-2502.01 and 7-2506.01, and successfully opposed Cassagnol's motion to dismiss before nolle pross-ing the charges without prejudice. Before this incident, Cassagnol had no criminal record and worked fulltime for a telecommunications company. Police arrested another new plaintiff, Virginia student Delontay Davis, after spotting his firearm during a traffic stop. The District confiscated his car and firearm, strip-searched him, and jailed him for four nights while the U.S. Attorney charged him with violating Sections 7-2502.01, 7-2506.01, and 22-4504. When the U.S. Attorney dismissed those charges ten months later, the D.C. Attorney General recharged him under Sections 7-2502.01 and 7-2506.01, but dropped the case two months later. Based on these facts, the plaintiffs bring ten claims: 1. That Sections 7-2502.01, 7-2506.01, and 22-4504, which together prohibited non-D.C. residents from having handguns and ammunition for self-defense while in the District— violated the Second Amendment; 2. That arresting and detaining people under those laws violated the Fourth Amendment; 3. That those laws violated the Fifth Amendment's right-to-travel and equal protection guarantees; 4. That seizing handguns (under Section 22-4517) and the vehicles used to convey them (under Section 7-2507.06a) violated the Second Amendment; 5. That the same handgun and vehicle seizure violated the Fourth Amendment; 6. That continuing to seize plaintiffs' handguns and ammunition after dismissing their charges violates the Fourth Amendment; 7. That seizing handguns and ammunition without notice and a hearing violated the Fifth Amendment's procedural due process protection; 8. That seizing cars after searching and processing them for evidence violated the Fourth Amendment; 9. That forfeiting cars used to transport guns violates the Second Amendment; and 10. That forfeiting cars used to transport guns violates the Fourth Amendment. Now, the District moves to dismiss under Rule 12(b)(1). First, the District claims plaintiffs lack standing to challenge vehicle seizures under Section 7-2507.06a. Next, the District argues the Court lacks jurisdiction to consider plaintiffs' Second and Fifth Amendment challenges to Sections 7-2502.01, 7-2506.01, and 22-4504. The District further moves to dismiss under Rule 12(b)(6). It argues plaintiffs' Fourth Amendment challenges fail as a matter of law. It also contends plaintiffs' challenges to Sections 7-2502.01, 7-2506.01, and 22-4504 are not cognizable under Section 1983, and fail to state a claim under the Fifth Amendment. Next, the District argues plaintiffs' vehicle-related claims are time-barred. Because Plaintiffs have standing to challenge the laws that enabled the District to seize their cars, take their guns, and subject them to criminal prosecution, the Court will deny the District's 12(b)(1) motion. To have standing a plaintiff must have suffered an injury in fact, an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. The District's 12(b)(1) motion invokes standing, mootness, and preclusion. First, the District claims plaintiffs lack the required injury-in-fact to confer standing to challenge vehicle seizures under Section 7-2507.06a because the District did not actually forfeit any plaintiff's car. Next, the District claims two other cases rejecting challenges to the District's seizure of property incident to arrest preclude plaintiffs' present challenge to the District's seizure of guns and ammunition under Section 22-4517. Finally, the District argues the Court lacks jurisdiction to consider plaintiffs' Second or Fifth Amendment challenges to Sections 7-2502.01, 7-2506.01, and 22-4504, either because plaintiffs' lack standing or because their claims are moot. But the District errs at each step. Plaintiffs have standing to challenge vehicle seizures under Section 7-2507.06a: by temporarily seizing Davis's car under color of Section 7-2507.06a, the District caused him to suffer a redressable injury. Relatedly, because plaintiffs did not participate in other cases challenging the District's seizure of property incident to arrest, those cases do not preclude their challenge to Section 22-4517. Additionally, plaintiffs have standing to challenge Sections 7-2502.01, 7-2506.01, and 22-4504 because their prosecutions under those statutes caused them to suffer redressable injuries. And finally, repealing Sections 7-2502.01, 7-2506.01, and 22-4504 did not moot plaintiffs' claims for declaratory relief since the superseded laws still harm one named plaintiff and since plaintiffs seek more than a declaration concerning the repealed laws' constitutionality. Because the District intended to forfeit Davis's car under Section 7-2507.06a, plaintiffs can challenge that statute. The District argues plaintiffs lack standing to pursue Second and Fourth Amendment challenges to the District's seizure of cars used to transport guns under its civil forfeiture scheme. As the District points out, although Davis alleges the District seized his car to forfeit it, the District ultimately changed its mind, returning it sixty days later following Davis's Rule 41(g) motion. So the District narrowly argues that plaintiffs lack the requisite injury-in-fact to establish standing. Not so. After all, plaintiffs allege the District seized Davis's car to forfeit it. In the best case, that seizure might be temporary if the District gets cold feet); in the worst case, it's permanent if the District effectuates forfeiture). Here, Davis got lucky, the District's seizure was temporary. But he suffered an injury all the same: the temporary dispossession forced him to drop out of school since he couldn't get to class for half the semester. And that injury gives him standing to challenge Section 7-2507.06a. The Plaintiffs have standing to challenge the constitutionality of the laws they were prosecuted for violating because those prosecutions caused them to suffer injuries-in-fact redressable through damages and injunctive relief. The District next floats a two-pronged attack on plaintiffs' standing to challenge Sections 7-2502.01, 7-2506.01, and 22-4504. First, the District claims those laws didn't cause plaintiffs' exposure to the District's criminal justice system. But that argument confuses causation with the merits and turns centuries of civil rights jurisprudence on its head. By the District's logic, Mildred and Richard Loving could not have challenged Virginia's antimiscegenation law, Greg Johnson could not have challenged Texas's flag-burning prohibition, and John Lawrence could not have challenged Texas's sodomy ban. Simply put, someone prosecuted under a criminal law can challenge its constitutionality regardless of whether they consciously committed the offense, and regardless of whether their prosecution proceeded to conviction. The District cannot shield those laws from constitutional challenge by blaming plaintiffs for violating them. Second, the District argues declaring Sections 7-2502.01, 7-2506.01, and 22-4504 unconstitutional will not redress plaintiffs' injuries. That logic conflates redressability with damages or maybe with mootness. Either way, the Court does not adopt the District's cribbed conception of plaintiffs' requested relief. If plaintiffs' constitutional challenge to Sections 7-2502.01, 7-2506.01, and 22-4504 prevails and for present purposes, the Court must assume it will plaintiffs will be entitled to compensatory damages for physical suffering, for mental anguish, and for reasonable and necessary expenses like loss of earnings or attorney's fees. They will also be entitled to nominal damages. They may even be entitled to declaratory and injunctive relief nullifying their arrests and sealing any relevant records. But in all events, a favorable decision will likely redress injuries Sections 7-2502.01, 7-2506.01, and 22-4504 caused. So plaintiffs can challenge those laws on Second and Fifth Amendment grounds. Because plaintiffs state some valid claims and some invalid claims, the Court will grant-in-part and deny-in-part the District's 12(b)(6) motion. In its Rule 12(b)(6) motion, the District takes several swings at the legal sufficiency of plaintiffs' claims. Some land. For instance, plaintiffs' Fourth Amendment challenges to their arrest, detention, vehicle seizure, and initial firearm seizure fail as a matter of law. Additionally, plaintiffs' vehicle-related Second Amendment challenges are timebarred. And because Rule 41(g) provides adequate post-deprivation safeguards, plaintiffs' procedural due process challenge to the District's seizure of guns and ammunition stumbles from the start. But none are knockouts. Plaintiffs' Fourth Amendment challenge to the District's continued seizure of their guns and ammunition after dismissing their criminal charges may proceed. So too can plaintiffs' Second and Fifth Amendment challenges to Section 7-2502.01, 7-2506.01, and 22-4504: both are cognizable under Section 1983, and their Fifth Amendment allegations bear out equal protection and right-to-travel deprivations. And plaintiffs may continue pursuing injunctive and declaratory relief nullifying their arrests and sealing related records. Most of plaintiffs' Fourth Amendment challenges fail as a matter of law, but their challenge to the District's ongoing seizure of their guns and ammunition may proceed. The plaintiffs challenge more than just their arrests. They also challenge their overnight detentions (the other part of claim two); the ongoing seizure of their guns and ammunition (claims five and six); and the two-month seizure of Davis's car (claims eight and ten). The Fourth Amendment protects against unreasonable seizures. So was it unreasonable for the District to seize Smith for one night, Cpl. Rouse and Cassagnol for two nights, and Davis for four nights? Was it unreasonable to seize Davis's car for purposes of civil forfeiture? Or to continue holding it after searching and processing it for evidence? Was it unreasonable to seize their guns and ammunition under Section 22-4517? What about after dismissing the charges against them? For the first four questions, the Court still answers no. First, given the ample probable cause that plaintiffs had violated Sections 7-2502.01, 7-2506.01, and 22-4504, the District reasonably detained them after their arrests. To be sure, the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest. And this determination must generally occur within 48 hours of arrest. But here, Davis the only plaintiff detained for more than forty-eight hours had his initial appearance in Superior Court the day after his arrest. The Superior Court judge further detained him for three more nights after determining pursuant to D.C. Code Section 23-1322(b)(2) that no condition or combination of conditions would reasonably assure the appearance of [Davis] as required, and the safety of any other person and the community. Of course, plaintiffs do not challenge that ruling here. They only ask whether Davis and the other plaintiffs received a constitutionally adequate judicial determination of probable cause prior to their extended detention. And since they did, their challenge to their overnight detention fails as a matter of law. Second, the District reasonably retained Davis's car for purposes of civil forfeiture. Though civil forfeiture statutes raise a hornets' nest of constitutional questions, the Fourth Amendment inquiry is simple: are forfeiture proceedings supported by probable cause? Here, Section 7-2507.06a(b) provided for forfeiture of vehicles in which any person or persons transport, possess, or conceal any firearm or in any manner use to facilitate a violation of Section 22-4504. As explained, police had probable cause to believe Davis violated § 22-4504 by transporting a handgun in his vehicle. And the District reasonably held the vehicle for two months while contemplating civil forfeiture: otherwise Davis could have frustrated the proceedings by selling, destroying, concealing, or removing the vehicle from the jurisdiction. Thus seizing Davis's car in contemplation of civil forfeiture complied with the Fourth Amendment. Third and for essentially the same reason the District reasonably retained Davis's car after processing it for evidence. Because Section 7-2507.06a gave the District authority to hold the car while contemplating civil forfeiture, and because probable cause would have supported those forfeiture proceedings, the Fourth Amendment did not prohibit the District from holding the car in advance of civil forfeiture proceedings, even after processing it for evidence. Fourth, the District could seize plaintiffs' guns and ammunition while their prosecutions were pending. After all, police can seize weapons found in plain view or following a lawful search incident to arrest to ensure officer safety and to preserve incriminating evidence. Here, plaintiffs do not dispute the weapons were either in plain view or found during a lawful search. And at least until the District dismissed their criminal charges, the District could justify retaining the guns in order to preserve evidence important to the ongoing prosecution. So plaintiffs' challenge to the District's seizure of their guns and ammunition while their criminal charges were pending fails as a matter of law. But the Court cannot say whether the District's ongoing seizure of plaintiffs' guns and ammunition after dismissing the charges against them complies with the Fourth Amendment. To answer this question, the Court must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. What justification could the District possibly have for still holding plaintiffs' guns and ammunition, years after dismissing the charges against them? The District doesn't say. Clearly any need to preserve evidence for the ongoing prosecutions ended when those prosecutions were dismissed. So the District must answer this claim. In sum, although the Court will dismiss most of plaintiffs' Fourth Amendment challenges (claims two, five, eight, and ten), their Fourth Amendment challenge to the District's continuing seizure of their guns and ammunition (claim six) persists. Plaintiffs' Second and Fifth Amendment Challenges to Sections 7-2502.01, 7-2506.01, and 22-4504 survive. Claims one and three of plaintiffs' second amended complaint challenge Sections 7-2502.01, 7-2506.01, and 22-4504 on Second and Fifth Amendment grounds. Specifically, plaintiffs argue the scheme infringes on their rights to possess a handgun for individual self-defense, to equal protection, and to travel interstate. The District counters that these claims aren't cognizable under Section 1983 since plaintiffs' arrest and prosecutions passed independent constitutional muster. The District further argues plaintiffs fail to state an equal protection or right-to-travel claim. But the District is wrong. Plaintiffs' Second and Fifth Amendment claims are cognizable under Section 1983 since plaintiffs allege Sections 7-2502.01, 7-2506.01, and 22-4504 afflict substantive rights beyond their arrests and prosecutions. And plaintiffs adequately state equal protection and right-to-travel claims since Sections 7-2502.01, 7-2506.01, and 22-4504 distinguish between D.C. and non-D.C. residents in a way that jeopardizes the latter's fundamental rights. So claims one and three can proceed. Because plaintiffs allege Sections 7-2502.01, 7-2506.01, and 22-4504 violated the Bill of Rights' substantive guarantees, their Second and Fifth Amendment claims are cognizable under Section 1983. A law banning law-abiding citizens from having a handgun for individual self-defense constitutes a classic Second Amendment injury. A state law treating non-state residents differently on the basis of a fundamental right presents a paradigmatic equal protection problem. And a law forcing plaintiffs to surrender a fundamental right before traveling interstate impacts the right to travel. So at bottom, plaintiffs claim more than that they had to defend themselves against unconstitutional laws. They claim the unconstitutional laws infringed their substantive rights. Thus they allege constitutional injuries cognizable under Section 1983. The Plaintiffs' equal protection claim survives because Sections 7-2502.01, 7-2506.01, and 22-4504 distinguish between D.C. residents and non-D.C. residents at the expense of the latter's fundamental rights. The Fifth Amendment's due process clause forbids the District from denying equal protection of its laws to anyone in the District. Essentially, this protects against discrimination: the District cannot treat people differently without a satisfactory justification. By extension, it means the District cannot deny some people a benefit available to others on account of their exercise of a fundamental right. First, Sections 7-2502.01, 7-2506.01, and 22-4504 treated D.C. residents different from non-D.C. residents. True enough, the laws seem generally applicable at first glance. Section 7-2502.01(a) made it unlawful to possess or control any firearm, unless the person held a valid registration certificate for the firearm. But Section 7-2502.02 is the rub. That statute's subsection (a)(4)(C) decreed that a D.C. registration certificate shall not be issued for a pistol unless the registrant seeks to register the pistol for use in self-defense within that person's home. In other words, Section 7-2502.02 did not provide an avenue for people without a home in D.C. to register guns in D.C. Indeed, plaintiffs allege the District required registrants to prove their D.C. residency before they could obtain a certificate. And second, this differential treatment causes more problems than the District admits. To be sure, a bona fide residence requirement implicates no suspect classification, and therefore is not subject to strict scrutiny. But drawing all inferences in the plaintiffs' favour this de facto residency requirement did restrict plaintiffs' fundamental right to have a handgun for individual self-defense. Outside the equal protection context, courts cleave over what tier of heightened scrutiny applies to laws burdening the Second Amendment, and the D.C. Circuit has yet to take sides. So in addition to the Supreme Court's command to subject fundamental-right impacting distinctions to strict scrutiny under equal protection analysis, this Circuit's Second Amendment jurisprudence urges the same result. In sum, strict scrutiny applies to plaintiffs' equal protection claim. And to satisfy strict scrutiny, the District must show Sections 7-2502.01, 7-2506.01, and 22-4504 are narrowly tailored to effectively advance a compelling interest. But since the District bears this burden, it is a question for a later day. For now, the Court merely concludes that because Sections 7-2502.01, 7-2506.01, and 22-4504 drew a distinction between D.C. residents and non-D.C. residents jeopardizing the latter's exercise of their fundamental right to possess a handgun for individual self-defense, plaintiffs adequately state an equal protection claim. The Plaintiffs' right-to-travel claim adequately states a claim for relief because Sections 7-2502.01, 7-2506.01, and 22-4504 penalize plaintiffs for traveling interstate by treating D.C.-resident gunowners differently from non D.C. resident gunowners. In addition to challenging plaintiffs' Fifth Amendment claim on equal protection grounds, the District separately argues plaintiffs' right-to-travel argument fails. But like in the equal protection context any government impingement on the fundamental right to move between states would be measured under a strict scrutiny standard and would be justified only if the infringement is narrowly tailored to serve a compelling state interest. Here, the Court concludes plaintiffs plausibly allege Sections 7-2502.01, 7-2506.01, and 22-4504 impinge on their fundamental right to travel interstate, and thus merit strict scrutiny. A law implicates the right to travel when it actually deters such travel, when impeding travel is its primary objective, or when it uses `any classification which serves to penalize the exercise of that right.' Plaintiffs do not argue the laws actually deter or try to impede interstate travel. But plaintiffs do adequately contend the laws use a classification gun ownership to penalize exercising the right. As a result, plaintiffs right-to-travel claim goes the distance. Just as the Court explained for plaintiffs' equal protection claim, because the District bears the burden under strict scrutiny to prove the infringement is narrowly tailored to serve a compelling state interest, the claim cannot be resolved on the District's own motion to dismiss. Because plaintiffs adequately claim Sections 7-2502.01, 7-2506.01, and 22-4504 impinge on their fundamental right to travel interstate, their right-to-travel claim can go forward. The Plaintiffs' vehicle-related Second Amendment challenges are time-barred. The District next claims plaintiffs' vehicle-related claims all fall outside D.C. Code Section 12-301's default three-year statute of limitations. Section 12-301(8) imposes a three-year residual statute of limitations on section 1983 claims. That poses a problem for plaintiffs. After all, Davis is the only plaintiff to have his car taken. Police initially seized his car in March 2014; they returned it in late May 2014. But plaintiffs did not attempt to add Davis and his vehicle-related claims to the suit until November 2017, well after three years passed. The Plaintiffs try to skirt this time-limit by claiming the vehicle-related claims relate back to Smith's original complaint filed in May 2015. True enough, a new plaintiff or claim can relate back to the date of the original pleading if the amendment asserts a claim that arose out of the conduct, transaction, or occurrence set out or attempted to be set out in the original pleading. But new plaintiffs and claims do not relate back if they assert a new ground for relief supported by facts that differ in type from those the original pleading set forth. To determine where plaintiffs' claims fall, the Court considers whether the original complaint adequately notified the defendant of the basis for liability the plaintiffs would later advance. Even new claims and plaintiffs sharing some elements and some facts in common with the original complaint do not relate back if it operates to fault the defendant for conduct different from that identified in the original complaint. So too for Davis and his vehicle-related claims. Taking as true plaintiffs' contention that the relevant transaction in the original Complaint is properly understood as Ms. Smith's arrest" in June 2014, the Court cannot see how claims stemming from Davis's March 2014 arrest arise out of that conduct, transaction, or occurrence. Accordingly, because plaintiffs' vehicle-related Second Amendment claims assert an unanticipatable ground for relief different in kind from those in the original complaint, they do not relate back to Smith's original complaint. And because they do not relate back, they land outside Section 12-301(8)'s three-year timebar. So claims four and nine will be dismissed. Because Rule 41(g) provides adequate post-deprivation process, plaintiffs' procedural due process claim fails as a matter of law. In claim seven, plaintiffs argue the District's failure to provide notice and a hearing regarding their seized handguns and ammunition violated the Fifth Amendment's procedural due process guarantee. But the District argues the claim fails as a matter of law, since Rule 41(g) offers a constitutionally adequate post-seizure mechanism to challenge the guns' seizure. To be sure, plaintiffs' right to have a handgun for individual self-defense is a private interest of historic and continuing importance. But where police seize those guns incident to arrest, the risk of erroneous deprivation is negligible. And the search-incident-to-arrest context further makes pre-deprivation process impractical, given the ease with which guns can be quickly and quietly sold, destroyed, concealed, or otherwise removed from the jurisdiction. Accordingly, because seizing plaintiffs' guns and ammunition without pre-deprivation notice and hearing passed constitutional muster, plaintiffs' procedural due process challenge fails as a matter of law. Claim seven will be dismissed. Plaintiffs may continue pursuing injunctive and declaratory relief nullifying their arrests and expunging records relating to their arrests and prosecutions. The District's final contention can be swiftly felled. The District claims plaintiffs cannot obtain declaratory and injunctive relief sealing their arrest and prosecution records and declaring their arrests legal nullities because that relief is limited to individuals who can show by clear and convincing evidence' either that the crime for which she was arrested did not occur, or that she did not commit it. Plaintiffs have standing to challenge the laws that allowed the District to seize their cars, take their guns, and subject them to arrest and prosecution, and their claims are neither precluded nor moot. So the Court will deny the District's motion to dismiss for lack of subject matter jurisdiction. Additionally, plaintiffs state some legally sufficient claims under the Second, Fourth, and Fifth Amendments. Plaintiffs' Fourth Amendment challenge to the ongoing seizure of their guns and ammunition; their Second and Fifth Amendment challenges to Sections 7-2502.01, 7-2506.01, and 22-4504; and their pursuit of injunctive and declaratory relief nullifying their arrests and sealing related arrest and prosecution records may advance. But their other Fourth Amendment challenges fail, as do their Second Amendment challenges to vehicle seizure and forfeiture, and their procedural due process challenge to the District's seizure of their guns and ammunition. So the Court will grant-in-part and deny-in-part the District's motion to dismiss for failure to state a claim. Simply put, claims two, four, five, seven, eight, nine, and ten will be dismissed with prejudice. But all other claims remain. A separate order follows. A full-text copy of the District Court's May 16, 2019 Memorandum Opinion is available at https://tinyurl.com/yywv7us8 from Leagle.com. MAGGIE SMITH, GERARD CASSAGNOL, ROB & FREDERICK ROUSE, CORNELIUS, Plaintiffs, represented by Joseph A. Scrofano, SCROFANO LAW PC, 406 5th St NW Suite 100, Washington, DC 20001 & William Charles Cole Claiborne, III, CLAIBORNELAW, 410 E Bay St, Savannah, GA 31401, DELONTAY DAVIS, Plaintiff, represented by William Charles Cole Claiborne, III, CLAIBORNELAW. GOVERNMENT OF THE DISTRICT OF COLUMBIA, Defendant, represented by Andrew J. Saindon, OFFICE OF ATTORNEY GENERAL & Matthew Robert Blecher , OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA. DON VITO: Court Denies Preliminary Approval of Settlement in Camilo ------------------------------------------------------------------- The United States District Court for the Northern District of California, San Jose Division issued an Order denying Plaintiffs' Unopposed Motion for Preliminary Approval of the Settlement in the case captioned RODRIGO CAMILO, et al., Plaintiffs, v. SEVERO C. OZUNA, et al., Defendants. Case No.18-cv-02842-VKD. (N.D. Cal.). Presently before the Court is plaintiffs' unopposed motion for preliminary approval of the settlement of this action. Plaintiffs Rodrigo Camilo, Alvaro Camilo, Ricardo Sanchez, and Jose Lopez bring this hybrid putative class action and collective class action for alleged wage and hour violations under various provisions of the California Labor Code and the federal Fair Labor Standards Act (FLSA). Class Members, defined in the parties' Joint Stipulation for Class Action Settlement and Release (Stipulated Settlement) as follows: All non-exempt hourly employees who are employed or have been employed by Defendants as all non-exempt hourly employees involved in the tortilla and chip manufacturing process who were employed by Defendants between May 14, 2014 and March 19, 2019 who claim they were not paid all their overtime at the rate of 1.5 times their regular rate of pay, and who claim did not receive their breaks. The proposed settlement is non-reversionary and contemplates a release of claims in return for a total payment of $375,000 into a common fund. From that fund, the parties will deduct $112,500 in attorneys' fees, up to $10,000 in litigation expenses, no more than $15,000 for settlement administration costs, and service awards of $5,000 to each named plaintiff. The remaining sum, $217,500, referred to as the Net Settlement Fund," will then be available for distribution to each Participating Class Member" based on the number of weeks he or she worked, with 67% of the fund being allocated to Rule 23 class claims and 33% being allocated to those under the FLSA. Rule 23 Class Certification and FLSA Collective Class Certification In a Rule 23 class action, the members of a certified class are bound by the judgment unless they opt out of the suit. By contrast, in an FLSA collective action, only those claimants who affirmatively opt-in by providing a written consent are bound by the results of the action. The procedures for certification and approval of settlement for Rule 23 class actions and FLSA collective actions therefore are significantly different. Rule 23 Class Certification Plaintiffs bear the burden of establishing, by a preponderance of the evidence, that class certification is appropriate under Rule 23. Class certification under Rule 23 requires two steps. First, plaintiffs must satisfy the four prerequisites under Rule 23(a), namely numerosity, commonality, typicality and adequacy of representation. Here, plaintiffs seek certification under Rule 23(b)(3) and therefore must show that questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Rule 23(a) Certification For purposes of resolving the present motion for settlement, the Court finds that the Rule 23(a) requirements are satisfied. Numerosity Under Rule 23(a), the class must be so numerous that joinder of all members is impracticable. While there is no fixed number that satisfies the numerosity requirement, as a general rule, classes of forty or more are considered sufficiently numerous. Here, the numerosity requirement is met. Whether this factor is evaluated under plaintiffs' original or supplemental briefing, all indications are that there are well over 40 putative class members. Commonality Rule 23(a)(2) requires questions of law or fact common to the class. A question is common where it is capable of class-wide resolution which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. However, what matters to class certification is not the raising of common questions’ even in droves but rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. A single common question is sufficient to satisfy Rule 23(a)(2). Here, the commonality requirement is met because resolution of the class claims depends on common questions of law and fact about the class members' employment with defendants. Although plaintiffs have not identified the particular positions and duties of the putative class members, plaintiffs contend that every class member was subject to the same alleged policies, i.e., shaved overtime hours, the payment of overtime work at the regular rate of pay, and the failure to provide meal and rest breaks. Typicality Rule 23(a) requires that "the claims or defenses of the representative parties are typical of the claims or defenses of the class. The purpose of the typicality requirement is to assure that the interest of the named representative aligns with the interests of the class and the test is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct. The typicality requirement is satisfied where representative claims are reasonably coextensive with those of absent class members; they need not be substantially identical. Here, plaintiffs' claims meet the typicality requirement because plaintiffs, like every other class member, worked for defendants as non-exempt hourly employees and claim that they were subject to the same alleged unlawful wage and hour practices. Adequacy of Representation Rule 23(a) requires that the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(4). In assessing this factor, the Court addresses two legal issues, i.e., whether the named plaintiffs and their counsel (1) have any conflicts of interest with other class members, and (2) will prosecute the action vigorously on behalf of the class. The record does not indicate the presence of any conflicts of interest. No issues have been raised with respect to plaintiffs' counsel's competence, and they each aver that they have been practicing attorneys for nearly 30 years, with considerable experience litigating employment and wage-and-hour matters. The Court finds that the adequacy requirement is met. Rule 23(b)(3) Certification Plaintiffs seek to certify the proposed class under Rule 23(b)(3), which requires that the questions of law or fact common to class member predominate over any questions affecting only individual members and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation and asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues. In the present case, plaintiffs have satisfied the predominance factor because the issues in dispute concern defendants' allegedly unlawful wage and hour policies, which generally apply to all class members. The record suggests that the only individual question is the amount of damages to which each putative class member is entitled. However, individualized damages alone do not defeat Rule 23(b)(3) certification. In determining whether a class action is superior to other available methods for fairly and efficiently adjudicating the controversy, courts consider four nonexclusive factors: (1) the class members' interests in individually controlling the prosecution or defense of separate actions; (2) the extent and nature of any litigation concerning the controversy already commenced by or against the class; (3) the desirability of concentrating the litigation of the controversy in the particular forum; and (4) the difficulties likely to be encountered in managing a class action. The Plaintiffs have met the superiority requirement. Whether evaluated using the numbers provided in plaintiffs' original or supplemental briefing, the record presented indicates that the damages at issue likely are not great enough for individual putative class members to want to litigate separate actions against the defendants. In sum, for purposes of settlement, provisional certification of a Rule 23 class is appropriate. Preliminary Settlement Approval Courts may preliminarily approve a Rule 23 class action settlement and direct notice to the class if the proposed settlement (1) appears to be the product of serious, informed, non-collusive negotiations (2) does not grant improper preferential treatment to class representatives or other segments of the class (3) falls within the range of possible approval and (4) has no obvious deficiencies. In the present case, the fact that the parties reached a settlement after the parties conducted an investigation, exchanged discovery of the facts of this case, and participated in a full day of mediation facilitated by a retired judge weighs in favor of granting preliminary settlement approval. Nevertheless, for the reasons discussed below, there are several issues that preclude the preliminary approval of the parties' settlement at this time. Allocation of Settlement Payments There are substantial and unexplained inconsistencies between the terms of the parties' Stipulated Settlement and the settlement terms for which the parties now appear to seek approval. The most obvious differences concern the allocation of the settlement funds and of the payments to be made. As discussed, the parties' Stipulated Settlement contemplates that (1) 67% of the $217,500 settlement fund would be allocated to the California state claims, with the remaining 33% reserved for the FLSA claims and (2) individual payments would comprise 20% wages, 40% penalties, and 40% interest. As described in plaintiffs' supplemental briefing, however, the $217,500 fund will now be allocated equally between the California claims and the FLSA claims (with 20% of the fund, or $43,500, being reserved to each set of claims) and the remaining 60% (i.e., $130,500) to be paid as interest and penalties. Although plaintiffs seemed to suggest that the Court could make changes to the parties' Stipulated Settlement, as noted, the Court does not have the ability to do so. The Plaintiffs did not clearly explain how or why the parties originally agreed to allocate 67% of the Net Settlement Fund to the California state claims and 33% to the FLSA claims. Nor have they explained why they have now changed those allocations or how those proposed modifications are fair. Additionally, plaintiffs' supplemental calculations indicate, without explanation, that the $130,500 reserved for the payment of penalties and interest is really only being allocated to the payment of penalties. Treatment of Rule 23 class members and FLSA collective class members The Stipulated Settlement seems to assume that all individuals covered by the settlement are members of both the Rule 23 class and the FLSA collective class, and also appears to contemplate payment only to those individuals who are, in fact, members of both classes. The record presented, however, suggests that the two classes are not one and the same and that the FLSA collective class is smaller than the Rule 23 class. In other words, the Stipulated Settlement does not appear to account for members of the Rule 23 class who are not also members of the FLSA collective class. For example, the Stipulated Settlement seems to require Class Members to submit a claim form in order to receive any payment, even though Rule 23 class members are not obliged to submit a claim form to participate in the settlement. Adding to the confusion are the Stipulated Settlement's definitions of the terms Settlement Class Members and Participating Class Member. The term Settlement Class Members seems to be defined as all Rule 23 class members who either do not opt out or who timely rescind a request to opt out of the settlement. The Stipulated Settlement seems to contemplate that only Participating Class Members will be paid a settlement. Indeed, the Stipulated Settlement indicates that any Class Member who does not timely opt out of the Rule 23 settlement will automatically be deemed a Settlement Class Member who is not entitled to recover from the Net Settlement Amount. Carve-Out Period for FLSA Claims The Plaintiffs' supplemental briefing clarifies that the FLSA settlement excludes any claims during the period November 22, 2014 to November 19, 2016 to account for payments made to 35 individuals as part of the DOL proceeding. Plaintiffs' supplemental spreadsheet, however, indicates that there are other individuals who apparently did not receive a DOL settlement and whose FLSA claims fall entirely within the two-year carved out period. Plaintiffs do not explain how or why it may be fair to entirely exclude such claims from the settlement. Scope of the Release The parties' Stipulated Settlement provides that the agreed-upon release of liability encompasses the following: all claims and/or causes of action alleged in the present action as well as any and all claims, demands, rights, liabilities and/or cause of action of any nature and description whatsoever, known or unknown, in law or in equity, asserted by Plaintiffs on behalf of any Settlement Class Member relating to any compensation allegedly due or earned as a result of their employment with Defendants and any other related claims and/or penalties of any nature whatsoever. Here, the release language is not so limited and suggests that class members are more broadly releasing claims that are not based on the identical factual predicate as the present action. Courts have held that such overbreadth in a proposed release is an obvious deficiency that warrants denying preliminary approval. Defendants' Estimated Exposure In their original briefing, plaintiffs asserted that if this case were to proceed to trial, then defendants' total estimated exposure would be $488,000. They provided only highly generalized information as to how they calculated that figure, stating that it was based on records provided to them by Defendants and that plaintiffs' calculations assumed that every employee worked 14 hours of overtime per pay period. When probed by the Court at oral argument about the basis for the $488,000 estimate, plaintiffs' counsel stated only that he took the largest estimate of overtime hours per week and then calculated the total wage loss using an Excel spreadsheet. In their supplemental briefing, plaintiffs offer no new estimate of defendants' total potential exposure, and the Court cannot reliably discern from the record presented whether plaintiffs' $488,000 is reasonable and, thus, whether the proposed settlement falls within the range of possible approval. This is particularly true where plaintiffs' supplemental briefing includes an apparent significant reevaluation of the claimed damages. Attorneys' Fees, Costs, and Administrative Expenses In plaintiffs' supplemental briefing, one of plaintiffs' attorneys, Victoria Booke, avers that she spent nearly 100 hours working on this matter. She states, on information and belief, that her co-counsel, James Dal Bon, worked approximately the same number of hours..Because both attorneys worked at a rate of $500 per hour, Ms. Booke states that the time they spent litigating this matter (plus anticipated additional 30 hours going forward) is fairly close to the 30% of the settlement counsel request in fees. Although the Court need not resolve the issue of fees at this preliminary stage (particularly when there are other issues that preclude the approval of settlement at this time), the Court has some concern regarding plaintiffs' request for one-third of the settlement, in light of the fact that the benchmark is 25%. Plaintiffs' counsel should bear this in mind if or when they present a fees motion for final approval. Additionally, in the event the full amount of fees or litigation costs is not awarded or the sum reserved for administrative costs is not depleted, the parties' Stipulated Settlement does not address what should be done with the excess sums. Service Awards Each named plaintiff intends to seek a service award of $5,000. While service awards are permissible, they must also be reasonable. Here, each named plaintiff will seek an award that is approximately three times the average $1,699.22 payment they say class/collective members may expect to receive. That might not be an unreasonable ratio, and plaintiffs' counsel has now provided additional information about the plaintiffs' efforts in this case. However, in view of plaintiffs' assertion that the settlement represents a little more than half of defendants' total potential exposure, and given the range of payments plaintiffs now say that class/collective members will receive, the Court finds that if or when plaintiffs formally apply for service awards, the Court would benefit from additional discussion of the justification and evidence supporting their request. The Court conditionally certifies a Rule 23 class and FLSA collective class, but otherwise denies plaintiffs' motion for preliminary approval of the settlement. The denial is without prejudice to plaintiffs to file an amended motion for preliminary approval along with an amended Stipulated Settlement and proposed Notice by June 17, 2019 that cures the deficiencies outlined in this order. A full-text copy of the District Court's May 16, 2019 Order is available at https://tinyurl.com/y6gaqrg4 from Leagle.com. Rodrigo Camilo, an individual, Alvaro Camilo, an individual, Ricardo Sanchez, an individual & Jose Manuel Lopez, an individual, Plaintiffs, represented by James Dal Bon -- jdb@wagedefenders.com -- Law Offices of James Dal Bon & Victoria L.H. Booke -- vbooke@bookelaw.com -- Law Offices of Booke & Ajlouny, LLP. Severo C Ozuna, an individual & Don Vito Ozuna Food Corporation, a California Corporation, Defendants, represented by Julian Pardo De Zela -- julian.pardo.de.zela@svelf.com -- SV Employment Law Firm PC & Stacey Ann Zartler -- szartler@svelf.com -- Berliner Cohen. DR PEPPER: Kilpatrick Townsend Atorney Discusses Court Ruling ------------------------------------------------------------- James Bogan III, Esq. -- jbogan@kilpatricktownsend.com -- of Kilpatrick Townsend & Stockton LLP, in an article for JDSupra, reports that in prior posts, the law firm reported on the dismissals of putative class actions asserting that the "diet" in "diet soda" is false or misleading. See N.D. Cal. sounds the death knell on "diet" soda class actions (September 11, 2018) and S.D.N.Y. joins N.D. Cal. in rejecting claim that "diet" soda is deceptive to a reasonable consumer (July 9, 2018). The courts rejecting this theory of deception as implausible have done so based on two key conclusions: (1) reasonable consumers understand that diet soda -- at best -- will help them lose or maintain weight relative to the consumption of regular (high calorie) soda, and (2) no scientific study has established that the sweetener used in diet soda actually causes weight gain. Less than two weeks ago, the Second Circuit came to the same conclusion in another such class action. In Excevarria v. Dr Pepper Snapple Group, Inc., --- F.App'x. ---, No. 18-1492, 2019 WL 1761696 (2d Cir. Apr. 17, 2019) (Summary Order), two class representatives alleged that the term "diet" in "Diet Dr Pepper" was false or misleading, because it supposedly conveyed to reasonable consumers that consumption of the beverage would assist in weight loss. Central to plaintiffs' theory of deception was the claim that the sweetener in Diet Dr Pepper (aspartame) "is likely to cause weight gain, does not help in weight loss or healthy weight management, and . . . increases the risk of [metabolic] disease such as diabetes." Id. at *1. The Southern District of New York rejected the allegations as implausible and the Second Circuit affirmed, ruling: "[E]ven assuming (without deciding) that Plaintiffs are right that a reasonable consumer would understand the word 'diet' to convey promises about weight loss or management, they have still failed to state a claim here. None of the studies cited by the Complaint or the PFAC [proposed first amended complaint] establish a causal relationship between aspartame and weight gain, as has been determined by a number of courts in substantially identical cases involving complaints that cite the same studies." Id. In so ruling, the Second Circuit cited a number of cases discussed in our September 11, 2018 and July 9, 2018 posts. Accordingly, the Second Circuit sustained the district court's dismissal of the plaintiffs' original complaint and the denial of their motion for leave to file an amended complaint, ruling: "neither the Complaint nor the PFAC state a claim, because Plaintiffs cannot raise a plausible inference that 'Diet Dr Pepper' as a brand name is false or misleading." Id. at 4. [GN] DXP ENTERPRISES: Warden Seeks Overtime Pay for Safety Consultants ----------------------------------------------------------------- The case, JOSHUA WAYNE WARDEN, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, vs. DXP ENTERPRISES, INC., the Defendant, Case No. 2:19-cv-00407 (D.N.M., May 3, 2019), alleges that DXP has violated and continues to violate the New Mexico Minimum Wage Act, by failing to pay Plaintiff and other Class Members overtime at the legally required rate. The Plaintiff, individually and on behalf of all other Class Members, brings this class action lawsuit to recover overtime pay and all over available remedies under the NMMWA. According to the complaint, DXP Enterprises, Inc. was formerly the employer of Plaintiff and other Class Members. The Plaintiff worked as a "Safety Consultant" for DXP from March of 2015 through January of 2018. While working for DXP, Plaintiff was first classified as an employee, then as an independent contractor. During his time with DXP, Plaintiff typically worked approximately 100 hours per week. As both an employee and an independent contractor, Plaintiff received a day rate regardless of the number of hours he worked in a given day or week, and never received overtime pay. There are at minimum dozens of individuals who since March of 2015 that have, like Plaintiff, been paid day rates and denied overtime while working for DXP in New Mexico. These pay practices are referred as the "Day Rate Policy. DXP is a publicly traded company that offers compliance and consulting services to clients in, inter alia, the oil and gas industry. DXP contracts with various oil and gas producers to provide laborers for their drilling operations, including Plaintiff and the Class Members that were paid day rates and denied overtime pay.[BN] Attorneys for the Plaintiff: Josh Borsellino, Esq. BORSELLINO, P.C. 1020 Macon St., Suite 15 Fort Worth, TX 76102 Telephone: (817) 908-9861 Facsimile: (817) 394-2412 E-mail: josh@dfwcounsel.com ENCORE CAPITAL: Proposed Board Amendments Misleading, Suit Says --------------------------------------------------------------- Turkhan Mirzayev, individually on behalf of himeslf and all other similarly situated stockholders of ENCORE CAPITAL GROUP, INC., the Plaintiff, vs. MICHAEL P. MONACO, FRANCIS E. QUINLAN, NORMAN R. SORENSEN, LAURA NEWMAN OLLE, RICHARD J. SREDNICKI, ASH GUPTA, WENDY HANNAM, RICHARD P. STOVSKY, ASHISH MASIH, and ENCORE CAPITAL GROUP, INC., the Defendant, Case No. 2019-0331 (Del. Ch., May 3, 2019), balks at the proposal of Encore Capital Group's Board of Directors to amend the company's Amended and Restated Certificate of Incorporation to increase the number of authorized shares of Encore's common stock from 50 million to 75 million. As disclosed in the Schedule 14A Definitive Proxy Statement that the Board authorized to be filed with the U.S. Securities and Exchange Commission and disseminated on April 29, 2019, the Board approved and declared advisable the Proposed Amendment on April 11, 2019. The Proxy states that the Proposed Amendment requires the approval of just a majority of votes cast: The proposal regarding an amendment to the Amended and Restated Certificate of Incorporation to increase the number of authorized shares of common stock requires the affirmative vote of the majority of shares voting for or against the amendment at the annual meeting. Abstentions and broker non-votes will not be counted as votes cast and will not be counted in determining the number of shares necessary for approval. The lawsuit contends that Title 8 of the Delaware Code, otherwise known as the Delaware General Corporation Law, requires that, to amend a company's certificate of incorporation, a greater threshold must be satisfied, to wit: the "the affirmative vote of the holders of a majority of the stock of the corporation" is required. 8 Del. C. section 242(b)(1). Accordingly, the Proposed Threshold for approval of the Proposed Amendment to the Certificate described in the 2019 Proxy conflicts with the requirements of the DGCL and the Proxy fundamentally misstates such requirements and is therefore materially misleading, the lawsuit says.[BN] Attorneys for the Plaintiff: P. Bradford deLeeuw, Esq. ROSENTHAL, MONHAIT & GODDESS, P.A. 919 N. Market Street, Suite 1401 P.O. Box 1070 Wilmington, DE 19899-1070 Telephone: (302) 656-4433 - and - Eduard Korsinsky, Esq. Christopher J. Kupka, Esq. William J. Fields, Esq. Samir Shukurov, Esq. LEVI & KORSINSKY, LLP 55 Broadway, 10th Floor New York, NY 10006 Telephone: (212) 363-7500 Facsimile: (212) 363-7171 EQUINOX HOLDINGS: Porter Suit Moved to N.D. California ------------------------------------------------------ RENEE PORTER and JOSHUA TOLIN, individually and on behalf of all others similarly situated, the Plaintiff, vs. EQUINOX HOLDINGS, INC., a Delaware corporation; and DOES 1-50, inclusive, the Defendants, Case No. RG19009052 (Filed 19-_____), was removed from the Superior Court of the State of California for the County of Alameda, to the U.S. District court for the Northern District of California on May 3, 2019. The Northern District of California Court Clerk assigned Case No. 3:19-cv-02426 to the proceeding. The case is brought on behalf of Plaintiff individually, and on behalf of all other individuals similarly situated who worked for Equinox Holdings, Inc. The Plaintiffs allege that they and other aggrieved employees were not paid their earned overtime wages for all overtime hours worked. For example, Defendants suffered or permitted Plaintiffs and Other Aggrieved Employees to work off the clock, but did not pay Plaintiff and Other Aggrieved Employees for that time, nor count that time in calculating overtime. This often occurred on occasions when Plaintiffs and Other Aggrieved Employees worked in excess of eight hours in a day or 40 hours in a week, the lawsuit says.[BN] Attorneys for the Plaintiffs: Ronald W. Makarem, Esq. Samuel D. Almon, Esq. MAKAREM & ASSOCIATES APLC 11601 Wilshire Boulevard, Suite 2440 Los Angeles, CA 90025-1760 Telephone: (310) 312-0299 Facsimile: (310) 312-0296 EVANGER'S DOG: Court Dismisses Defamation Counterclaim in Mael -------------------------------------------------------------- The United States District Court for the Western District of Washington, Tacoma, issued an Order granting Plaintiff Mael's Motion to Dismiss Defendant Evanger's Defamation Counterclaim Against Her in the case caption NICOLE MAEL, Plaintiff, v. EVANGER'S DOG CO., INC., Defendant. Case No. C17-5469RBL. (W.D. Wash.). This putative class action arises from Mael's claim that her dogs got sick, and one ultimately died, from eating pentobarbital-tainted Evanger's Hunk of Beef dog food. Mael's story was in the news and it at least partly caused Evanger's to initiate a nationwide recall of its products. Mael sued. Evanger's asserted defamation counterclaims based on a list of Mael's public statements about the cause of Talula's death. Mael seeks dismissal of the defamation counterclaim. She argues that her statements do not and cannot support a defamation claim under the substantially similar defamation law of Illinois where Evanger's is domiciled or Washington where the comments were made. Dismissal under Fed. R. Civ. P. 12(b)(6) may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. A plaintiff's complaint must allege facts to state a claim for relief that is plausible on its face. A claim has facial plausibility when the party seeking relief pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Evanger's Response is a well-written, thorough, scholarly discussion of defamation law. It argues that Illinois and Washington law is the same, and that it need not demonstrate actual malice to succeed (but that it can). Evanger's core factual allegation in support of Evanger's defamation claim receives less attention, but it is plain: Mael's public statements intentionally omitted material information about how Talula really died. Mael failed to admit that she had Talula euthanized. Evanger's claims that Mael's incomplete, false story is more damaging to Evanger's than the one it claims is true and which it apparently wants to tell a jury; that Mael killed Talula, Mael decided to end her suffering, because a veterinarian told her the dog would not recover and then she falsely and maliciously claimed that her dog died from eating pentobarbital-tainted Hunk of Beef. It is hard to imagine that this more complete and accurate version of the story will persuade a jury that the food was not tainted, that Mael is lying, or that any claimed damages should be reduced because Mael herself is culpable because she chose to pull the plug. That is sort of like saying the coyotes technically killed the bleeding, suffering, dying deer on the highway, not the logging truck that ran over it. Except the coyotes presumably did not act in what they thought was the deer's best interest. Mael's adding to her interview the whole truth that Talula did not die right away, but because she was so sick Mael was forced to make the painful decision to euthanize her using pentobarbital would not have any perceptible effect on the mind of any reasonable listener about what really happened. Mael's statements were substantially true, and they reflect Mael's belief and opinion about what happened to her dogs. Nor do Mael's statements include any implication that is false: her dogs got sick, and one died, because they ate tainted dog food. The concealed truth, Mael was forced to decide to put her dog down because it was irrevocably damaged by the pentobarbital is not actionably different than what Mael told the news, as a matter of law. Mael's Motion to Dismiss Evanger's Defamation Counterclaim is granted, and that counterclaim is dismissed with prejudice and without leave to amend. A full-text copy of the District Court's May 16, 2019 Order is available at https://tinyurl.com/y2lxe74p from Leagle.com. Nicole Mael, Guy Mael, on behalf of themselves and all others similarly situated, Tina Wiepert, Nadine Vigliano, Carol Conway, Angela Bertucci & Britney Morea, Plaintiffs, represented by Beth E. Terrell -- bterrell@tmdwlaw.com -- TERRELL MARSHALL LAW GROUP PLLC, Jennifer Rust Murray -- jmurray@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC & Jessica J. Sleater -- jessica@andersensleater.com -- ANDERSEN SLEATER SIANNI LLC, pro hac vice. Evanger's Dog and Cat Food Co., Inc., Nutripack LLC & Sher Services Company, Incorporated, Defendants, represented by Brennen Johnson , JOHNSON GRAFFE KEAY MONIZ & WICK, John Coleman Graffe, Jr. , JOHNSON GRAFFE KEAY MONIZ & WICK, Katherine A. Bozzo , JOHNSON GRAFFE KEAY MONIZ & WICK, 2115 North 30th StreetSuite 101Tacoma, WA 98403- 3318, Gregory A. Bedell -- gbedell@kkbchicago.com -- KNABE, KRONING & BEDELL, pro hac vice, William J. Brown, Jr., BROWN WEGNER LLP, pro hac vice & William E. Wegner, BROWN WEGNER LLP, 2010 Main Street, Suite 1260, Irvine, CA 92614, pro hac vice. Sher Services Company, Incorporated, Nutripack LLC & Evanger's Dog and Cat Food Co., Inc., Counter Claimants, represented by Brennen Johnson, JOHNSON GRAFFE KEAY MONIZ & WICK, John Coleman Graffe, Jr., JOHNSON GRAFFE KEAY MONIZ & WICK, Katherine A. Bozzo, JOHNSON GRAFFE KEAY MONIZ & WICK, Gregory A. Bedell, KNABE, KRONING & BEDELL, pro hac vice, William J. Brown, Jr., BROWN WEGNER LLP, pro hac vice & William E. Wegner, BROWN WEGNER LLP, pro hac vice. EXPRESS SCRIPTS: Harrod Seeks to Certify Class in Record Fees Suit ------------------------------------------------------------------ In the class action lawsuit, CYNTHEA HARROD, Individually and o/b/o all others similarly situated, the Plaintiff, vs. EXPRESS SCRIPTS, INC., the Defendant, Case No. 8:17-cv-01607-JSM-TGW (M.D. Fla.), the Plaintiff moves the Court for an order: 1. certifying claims of violation of the Florida Deceptive and Unfair Trade Practices Act, breach of contract, breach of the covenant of good faith and fair dealing, and unjust enrichment against Defendant for class treatment on behalf of the following proposed class: "all persons in Florida who were charged a $75.00 "processing "fee to obtain a copy of their health information and/or health records from Express Scripts, following a request by a third party law firm or records company on their behalf on or before January 23, 2018"; 2. formally appointing Cynthea Harrod to serve as Class Representative of the Class; and 3. formally appointing Alex C. Davis of Jones Ward PLC and Tiffany M. Yiatras of Consumer Protection Legal, LLC, and Jason Whittemore of Wagner McLaughlin, P.A. to serve as to serve as Co-Lead Class Counsel. Excluded from the Class is (1) Defendant, Defendant's agents, subsidiaries, parents, successors, predecessors, and any entity in which Defendant or Defendant's parents have a controlling interest, and those entities' current and former employees, officers, and directors; (2) the Judge to whom this case is assigned and the Judge's immediate family; (3) Any governmental entities and any instrumentalities, subdivisions, agencies thereof; (4) any person who executes and files a timely request for exclusion from the Class; (5) any person who has had their claims in this matter finally adjudicated and/or otherwise released; (6) the legal representatives, successors and assigns of any such excluded person; (7) Counsel of record. The Plaintiff originally filed her original Motion for Class Certification along with her supporting memorandum of law on February 21, 2019, under seal.[CC] Attorneys for the Plaintiff and the Proposed Class: Jason K. Whittemore, Esq. WAGNER MCLAUGHLIN, P.A. 601 Bayshore Blvd., Suite 910 Tampa, FL 33606 Telephone: (813) 225-4000 E-mail: jason@WagnerLaw.com arelys@wagnerlaw.com - and - Alex C. Davis, Esq. JONES WARD PLC The Pointe 1205 E. Washington St., Suite 111 Louisville, Kentucky 40206 Telephone: (502) 882 6000 Facsimile: (502) 587 2007 E-mail: alex@jonesward.com - and - Tiffany M. Yiatras, Esq. CONSUMER PROTECTION LEGAL, LLC 308 Hutchinson Road Ellisville, MO 63011-2029 Telephone: 314-541-0317 Facsimile: (855) 710-7706 E-mail: tiffany@consumerprotectionlegal.com FIRSTSOURCE ADVANTAGE: Ormaza Sues over Fair Debt Collection ------------------------------------------------------------ Antoinette P. Ormaza, individually and on behalf of all others similarly situated, the Plaintiff, vs. Firstsource Advantage, LLC, the Defendant, Case No. 1:19-cv-02632 (E.D.N.Y., May 3, 2019), seeks to recover damages for Defendant's violations of the Fair Debt Collection Practices. The Defendant alleges Plaintiff owes a debt. The alleged Debt is an alleged obligation of Plaintiff to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes. In its efforts to collect the alleged Debt, the Defendant contacted Plaintiff by letter dated June 11, 2018. The Letter conveyed information regarding the alleged Debt. The Letter fails to state whether the payment must be sent by the consumer, or received by the Defendant, by the stated deadline. The Letter can be interpreted to mean that such payment must be mailed to the Defendant by the stated deadline. The Letter can also be interpreted to mean that such payment must be received by Defendant by the stated deadline. As a result of the foregoing, in the eyes of the least sophisticated consumer, the Letter is open to more than one reasonable interpretation, at least one of which is inaccurate. Because the Letter is open to more than one reasonable interpretation, it violates 15 U.S.C. section 1692e, the lawsuit says.[BN] Attorneys for the Plaintiff: BARSHAY SANDERS, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Telephone: (516) 203-7600 Facsimile: (516) 706-5055 E-mail: ConsumerRights@BarshaySanders.com FITBIT INC: Court Orders Post-Distribution Accounting in Robb Suit ------------------------------------------------------------------ The United States District Court for the Northern District of California issued an Order to File Post Distribution Accounting in the case captioned BRIAN H. ROBB, et al., Plaintiffs, v. FITBIT INC., et al., Defendants. Case No. 16-cv-00151-SI. (N.D. Cal.). Class counsel in this securities litigation filed a motion for distribution of the class settlement funds, which the Court has approved. The United States District Court for the Northern District of California has published Procedural Guidance for Class Action Settlement, which can be found at https://www.cand.uscourts.gov/ClassActionSettlementGuidance. The guidance has instructions regarding post-distribution accounting, due within 21 days after the distribution of the settlement funds and payment of attorneys' fees. Class counsel is hereby ORDERED to file a post-distribution accounting at the appropriate time in accordance with the Northern District of California's Procedural Guidance for Class Action Settlements. A full-text copy of the District Court's May 16, 2019 Order is available at https://tinyurl.com/yyln87ve from Leagle.com. Brian H. Robb, Plaintiff, represented by J. Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz LLP, pro hac vice, Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP, Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, pro hac vice, Marc Gorrie -- mgorrie@pomlaw.com -- Pomerantz, LLP & Patrick V. Dahlstrom -- pdahlstrom@pomlaw.com -- Pomerantz LLP. Viet Tran, Plaintiff, represented by Keith R. Lorenze – klorenze@rosenlegal.com -- The Rosen Law Firm, pro hac vice. Fitbit Inc., James Park, William R. Zerella, Eric N. Friedman, Jonathan D. Callaghan, Steven Murray & Christopher Paisley, Defendants, represented by Jordan Eth -- jeth@mofo.com -- Morrison & Foerster LLP, Anna Erickson White -- awhite@mofo.com -- Morrison & Foerster LLP, Mark David McPherson -- mmcpherson@mofo.com -- Morrison Foerster LLP & Ryan M. Keats - rkeats@mofo.com -- Morrison & Foerster LLP. Morgan Stanley & Co. LLC, Deutsche Bank Securities Inc. & Merrill Lynch, Pierce, Fenner & Smith Incorporated, Defendants, represented by Matthew David Powers -- mpowers@omm.com -- O'Melveny & Myers LLP, Jonathan Rosenberg -- jrosenberg@omm.com -- O'Melveny & Myers LLP & William Sushon -- wsushon@omm.com -- O'Melveny and Myers LLP. FORGE RESTAURANT: Pavon Seeks Minimum Wages for Tipped Employees ---------------------------------------------------------------- The case, JUAN CARLOS PAVON, on behalf of himself and all others similarly situated, the Plaintiffs, vs. FORGE RESTAURANT LLC d/b/a RESTAURANT FORGIONE; MARC FORGIONE; CHRISTOPHER BLUMLO, the Defendants, Case No. 1:19-cv-04008 (S.D.N.Y., May 3, 2019), seeks to recover minimum wages, misappropriated tips, call-in pay, and other damages for Plaintiff and his similarly situated co-workers -- servers, bussers, food runners, bartenders, and other similarly situated tipped employees -- who work or have worked at Restaurant Marc Forgione, located at 134 Reade Street, New York, NY 10013. Owned and/or operated by Forge Restaurant LLC, Marc Forgione and Christopher Blumlo, Restaurant Forgione is a high end "New American" restaurant located in the Tribeca neighborhood of New York City that has been featured in various publications, and has received rave reviews over the years. According to the lawsuit, the Defendants have paid Plaintiff and similarly situated Tipped Employees at or below the applicable "tipped" minimum wage rate. The Defendants, however, have not satisfied the strict requirements under the Fair Labor Standards Act or the New York Labor Law that would allow them to apply "tip credit" to Tipped Employees' wages. The Defendants failed to provide Tipped Employees with notification of the tipped minimum wage rate or tip credit provisions of the NYLL, or of their intent to apply a tip credit to Tipped Employees' wages, the lawsuit says.[BN] Attorneys for the Plaintiff: Brian S. Schaffer, Esq. Armando A. Ortiz, Esq. FITAPELLI & SCHAFFER, LLP 28 Liberty Street, 30th Floor New York, NY 10005 Telephone: (212) 300-0375 FRESNO DEPUTY: Court Extends Time to File Response in Campos Suit ----------------------------------------------------------------- The United States District Court for the Eastern District of California, Fresno Division, issued an Order extending Time to File Responsive Pleading to First Amended Complaint in the case captioned CESAR CAMPOS, et al, Plaintiffs, v. FRESNO DEPUTY SHERIFF'S ASSOCIATION, COUNTY OF FRESNO; XAVIER BECERRA, in his official capacity as Attorney General of the State of California; ERIC BANKS, PRISCILLA WINSLOW, ERICH SHINERS, and ARTHUR A. KRANTZ, in their official capacities as chair and members of the California Public Employment Relations Board, Defendants. Case No. 1:18-cv-01660 AWI-EPG. (E.D. Cal.). Plaintiffs filed their First Amended Complaint (FAC). Under Federal Rule of Civil Procedure 15, the DSA's response to the FAC is due on May 28, 2019. The FAC adds two new plaintiffs, deletes the class action allegations, and adds two new claims, requiring additional time to respond beyond the two weeks set under Rule 15. The DSA's counsel will be out of the country between May 17 and June 4, 2019, and therefore unable to prepare the DSA's response by the current due date. The Defendant DSA may have an extension of time within which to file a response to the FAC, and the date for such response will now be due June 24, 2019. This extension of time shall have no effect on the Mandatory Status Conference presently scheduled for June 11, 2019. The Court, accordingly, orders that Defendant FRESNO DEPUTY SHERIFF'S ASSOCIATION shall file a response to the First Amended Complaint on or before June 24, 2019. A full-text copy of the District Court's May 16, 2019 Order is available at https://tinyurl.com/y3t7vzgy from Leagle.com. Cesar Campos, Plaintiff, represented by Jonathan F. Mitchell, Mitchell Law, PLLC, 944 N Main St, Ann Arbor, MI 48104, pro hac vice, Talcott J. Franklin -- tal@talcottfranklin.com -- Talcott Franklin P.C., pro hac vice & Bradley A. Benbrook -- brad@benbrooklawgroup.com -- Benbrook Law Group. Latana M. Chandavong, Plaintiff, represented by Jonathan F. Mitchell, Mitchell Law, PLLC, pro hac vice & Bradley A. Benbrook, Benbrook Law Group. Neng Her & Hugh X. Yang, Plaintiffs, represented by Jonathan F. Mitchell, Mitchell Law, PLLC. Fresno Deputy Sheriff's Association, Defendant, represented by Monique Alonso -- monique@majlabor.com -- Messing Adam & Jasmine LLP. Priscilla Winslow, in official capacity as chair and members of the California Public Employment Relations Board, Xavier Becerra, in his official capacity as Attorney General of the State of California, Eric Banks, in official capacity as chair and members of the California Public Employment Relations Board, Erich Shiners, in official capacity as chair and members of the California Public Employment Relations Board & Arthur A. Krantz, in official capacity as chair and members of the California Public Employment Relations Board, Defendants, represented byNatasha Saggar Sheth, California Department Of Justice. GENERAL MOTORS: Faces Class Action Over Transmission Problems ------------------------------------------------------------- Brian Havins, writing for Corvette Online, reports that General Motors is in the news again regarding a possible class action lawsuit. Autoblog.com recently released an article that talks about problems associated with 2015-'18 8l90 and 8l45 GM 8-speed transmissions. According to Autoblog.com, a lawsuit was posted to ClassAction.org and spotted by GM Authority. A complaint has already been filled with the National Highway Traffic Saftey Administration with some reporting damage to their vehicles. The complaint reads, "These transmissions have a common defect. Drivers attempting to accelerate or decelerate their cars feel a hesitation, followed by a significant shake, shudder, jerk, clunk, or hard shift when the vehicle's automatic transmission changes gears. Said shudder, shake and hesitation also occurs while the subject vehicles are accelerated in a single gear, and not actively shifting gears. Drivers have reported that the shift is sometimes so violent, they feel as though they have been hit by another vehicle. In fact, one purchaser reported that the transmission shifted from reverse to drive so harshly that he almost drove through his garage door." On page 2 of the 85-page document talks about that GM has known about the transmission defect for years and states, "Since 2015, GM has issued thirteen versions of a technical service bulletin, or TSB, related to this shifting issue alone. A TSB is an alert to dealerships, informing them of a potential problem in a GM product and advising them how to address the problem when customers complain to GM dealerships. The TSBs related to the transmission issue have advised dealerships to, among other things: complete the "clutch drive learn procedure," replace the valve body, replace the entire transmission, flush the cooler lines and cooler, remove debris from and clean the transmission pan, replace the transmission filter, replace the transmission fluid, and flush the transmission." A consumer in Middleville, MI states in the document, "The 8-speed transmission bucks, hesitates, lurches forward, clunks while starting acceleration or coming to a stop. I try to keep a big gap between my truck and cars in front of me at stop signs because it randomly lurches forward and I have almost bumped cars in front of me. The consumer continues, "I am past my warranty so, the dealer says any cost is my responsibility." Here is a list of vehicles that could be affected: 2015-2019 Chevrolet Silverado 2017-2019 Chevrolet Colorado 2015-2019 Chevrolet Corvette 2016-2019 Chevrolet Camaro 2015-2017 Cadillac Escalade and Escalade ESV 2016-2019 Cadillac ATS and ATS-V 2016-2019 Cadillac CTS and CTS-V 2016-2019 Cadillac CT6 2015-2019 GMC Sierra 2015-2019 GMC Yukon and Yukon XL 2015-2017 GMC Yukon Denali and Denali XL 2017-2019 GMC Canyon While it's pretty obvious that some of the 8-speed transmissions have problems, an immediate solution is not as apparent. [GN] GLOBAL TEL: Fifth Circuit Appeal Filed in Alexander RICO Suit ------------------------------------------------------------- Plaintiffs Elizabeth R. Alexander, John P. Alexander, Patricia Broussard, Jai Gibson, Sandra Glassmire, Sharon Joseph and Mary Sessums filed an appeal from a Court ruling in their lawsuit entitled Elizabeth Alexander, et al. v. Global Tel Link Corporation, et al., Case No. 3:17-CV-560, in the U.S. District Court for the Southern District of Mississippi, Jackson. As previously reported in the Class Action Reporter, the lawsuit asserts claims for violation of the Racketeer Influenced and Corrupt Organizations Act. The case alleges that Christopher Epps, Sam Waggoner and GTL knowingly and intentionally conspired to devise schemes using overt acts, such as bribery, kickbacks, unfair and deceptive trade practices, misrepresentation, fraud, concealment, money laundering, fraudulent use of "sole-source" contracts when competitive bidding was required (for the provision, installation and management of Inmate Calling Services system), and other wrongful conduct, all with the intended purpose and effect of overcharging and bilking the Plaintiffs for inmate calling services. The appellate case is captioned as Elizabeth Alexander, et al. v. Global Tel Link Corporation, et al., Case No. 19-60287, in the U.S. Court of Appeals for the Fifth Circuit.[BN] Plaintiffs-Appellants ELIZABETH R. ALEXANDER, individually and on behalf of all others similarly situated; JOHN P. ALEXANDER, individually and on behalf of all others similarly situated; MARY SESSUMS, individually and on behalf of all others similarly situated; SANDRA GLASSMIRE, individually and on behalf of all others similarly situated; JAI GIBSON, individually and on behalf of all others similarly situated; SHARON JOSEPH, individually and on behalf of all others similarly situated; and PATRICIA BROUSSARD are represented by: Bradley S. Clanton, Esq. CLANTON LAW FIRM, P.C. P.O. Box 4781 Jackson, MS 39296 Telephone: (601) 487-1212 Facsimile: (866) 421-9918 E-mail: brad@clantonlawms.com Defendant-Appellee GLOBAL TEL LINK CORPORATION is represented by: Patrick Ryan Beckett, Esq. BUTLER SNOW, L.L.P. 1020 Highland Colony Parkway Ridgeland, MS 39158 Telephone: (601) 985-4557 E-mail: ryan.beckett@butlersnow.com GODIVA CHOCOLATIER: Bradley Arant Attorneys Discuss Court Ruling ---------------------------------------------------------------- John Goodman, Esq. -- jgoodman@bradley.com -- Michael Pennington, Esq. -- mpennington@bradley.com -- and J. Thomas Richie, Esq. -- trichie@bradley.com -- of Bradley Arant Boult Cummings LLP, in an article for JDSupra, report that bucking a recent trend and departing from both the Second Circuit's Katz decision and the Third Circuit's Kamal decision, the Eleventh Circuit found that a plaintiff had standing to settle a FACTA claim on behalf of a class. This decision -- Muransky v. Godiva Chocolatier, Inc. -- signals the continuing debate about what Spokeo means for federal statutory damages class actions. As is now familiar, FACTA (the federal "Fair and Accurate Credit Transactions Act") prohibits merchants from printing more than the last five digits of a credit or debit card number on any electronically printed receipt provided to the card holder at the point of sale. And Spokeo is the United States Supreme Court decision that holds (among other things) that Congress cannot create Article III standing merely by creating a cause of action. Muransky claimed a garden-variety FACTA violation: He alleged that Godiva printed the first six and last four digits of his credit card on his receipt. The case mediated, and the parties reached a class-wide settlement that would create a $6.3 million settlement fund to pay around $235 to each class member who submitted a claim form -- with $2.1 million to Muransky's lawyers. About 15% of the class members who received notice made claims, and there were five objectors. The objectors primarily focused on the issue of attorneys' fees and Muransky's $10,000 incentive award for serving as class representative, but one objector asserted that Muransky lacked standing. The district court overruled the objections and approved the settlement. Two objectors appealed. The Eleventh Circuit affirmed the settlement approval. It did so initially on October 3, 2018, but sua sponte vacated its previous opinion and published a new one on April 22, 2019. The major changes all came in the court's discussion of the standing issue, where the Eleventh Circuit took pains to distinguish the Second Circuit's opinion in Katz v. Donna Karan Co. In particular, the court disagreed with how Katz allowed evidence that certain FACTA violations did not pose any real threat of identity theft: "We are wary of Katz's premise that a federal district court may make factual finding that override Congress's standard for what harm constitutes a concrete injury" and "[w]e do not read Spokeo as giving courts a license to reject the standard set by Congress in favor of judge-found facts at odds with that standard." Instead, the Eleventh Circuit accepted that "Congress established the acceptable level of risk at printing five digits," so a receipt with too many digits plus an allegation of "a heightened risk of identity as a result of Godiva's FACTA violation… satisfies Article III under the principles Spokeo laid down." The Eleventh Circuit also decided that the plaintiff's standing could arise from the similarity between a FACTA claim and the common law tort of breach of confidence. While acknowledging that "the match is not exact," the court found that the common law tort was close enough to confer standing. This alternative rationale -- arguably dicta -- could apply outside of the FACTA context, given the court's broad language: "A consumer provides a merchant with his credit card number with the expectation that it will remain secret, not least because of the risk of credit card fraud if the merchant reveals it." The proposition is not self-evident: Have you ever followed the restaurant server to see what he or she does with your credit card when you pay your bill? In any event, how the Eleventh Circuit might apply this apparently sweeping reasoning in the context of a data breach, for example, remains to be seen. This alternative holding also pits the Eleventh Circuit directly against Kamal from the Third Circuit. That case rejected the analogy to breach of confidence, noting that the harm addressed in such a tort is actual disclosure, not the mere risk of disclosure. We believe Kamal has the better analysis because the disclosure to a third party is essential to resulting harm. Indeed, the Muransky rule could reduce Spokeo's injury requirement to a mere pleading trick, as it is hard to imagine what species of ephemeral harms could not be reclassified as risk of harms that are recognized to give rise to standing. Muransky justifies its lax standing rule as being deferential to Congress, but Spokeo (as we read it) disallows such deference. If it is true that "where the common law allowed a cause of action to remedy an injury, Congress can create a statutory cause of action to remedy the risk of such an injury," then standing defenses may come in for rough sledding in the Eleventh Circuit. We have two main takeaways: First, the Supreme Court needs to clarify Spokeo. In particular, the Supreme Court will likely need to address what it means for an intangible harm to have a "close relationship" to a traditional harm. The circuits are already divided on that issue, and it should be resolved sooner rather than later (even if not this term, as we hoped). Second, some of the practical issues of the case may be explained by its procedural posture. Muransky arose from an objection to a class settlement, not a traditional motion to dismiss. As Judge Jordan's concurring opinion notes, the objector's challenge to Muransky's standing raises its own jurisdictional questions: The objector "may lack Article III standing to challenge the Article III challenge of Dr. Muransky." If the objection to standing had succeeded, the settlement would have been unwound and the consideration made available to the class would not have been paid. Given that the defendant did not challenge standing, nearly 50,000 class members made claims as compared to only a handful of objectors, and given the fact that the objector pressing the standing issue was himself a class-action plaintiffs' lawyer, the posture of the case may go a long way to explaining the outcome. [GN] GRUPO HOTELERO: Mata Files Suit for Unlawful Trafficking -------------------------------------------------------- Marisela Mata and Bibiana Hernandez, as individuals and on behalf of all others similarly situtated v. Grupo Hotelero Gran Caribe, Corporacion De Comercio Y Turismo Internacional Cubanacan S.A., Grupo De Turismo Gaviota S.A., Corporacion Cimex S.A., Raul Doe 1-5, and Mariela Doe 1-5, Defendants, Case No. 1:19-cv-22025-JAL (S.D. Fla., May 20, 2019) seeks to right the Defendants' unlawful trafficking in their property and for just compensation under the Liberty Cuban and Democratic Solidarity Act ("LIBERTAD Act"). The complaint asserts that Defendants Gran Caribe, Cubanacan, and Gaviota, and their Melia Accomplices, entered into joint ventures for the purpose of trafficking in confiscated properties for use as hotel or other hospitality venues, including the San Carlos, which trafficking continues to this day, in violation of Title III of the LIBERTAD ACT. The Defendants have conducted this trafficking "without the authorization of any United States national who holds a claim to the property", says the complaint. Plaintiffs are United States citizens and are natural persons who reside in Miami, Florida. Gran Caribe is an agency or instrumentality og the government of Cuba.[BN] The Plaintiffs are represented by: Andres Rivero, Esq. Jorger A. Mestre, Esq. Carlos A. Rodriguez, Esq. RIVERO MESTRE LLP 2525 Ponce de Leon Blvd., Suite 1000 Coral Gables, FL 33134 Phone: (305) 445-2500 Facsimile: (305) 445-2505 Email: arivero@rivermestre.com jmestre@rivermestre.com crodriguez@rivermestre.com - and - MANUEL VASQUEZ, ESQ. MANUEL VASQUEZ, P.A. 2332 Galiano St., Second Floor Coral Gables, FL 33134 Phone: (305) 445-2344 Facsimile: (305) 445-4404 Email: mvaz@mvazlaw.com HARNEY & SONS: Fischler Sues Over Blind-Inaccessible Website ------------------------------------------------------------ Brian Fischler, Individually and on behalf of all other persons similarly situated, Plaintiff, v. HARNEY & SONS TEA CORP., Defendant, Case No. 1:19-cv-02991 (E.D. N.Y., May 21, 2019) is a civil rights action against Defendant for its failure to design, construct, maintain, and operate its website, www.harney.com, to be fully accessible to and independently usable by Plaintiff Fischler and other blind or visually-impaired people. The Defendant denies full and equal access to its Website, says the complaint. Plaintiff Fischler asserts claims under the Americans with Disabilities Act ("ADA"), New York State Human Rights Law ("NYSHRL"), and New York City Human Rights Law ("NYCHRL") against Defendant. Plaintiff Fischler seeks a permanent injunction to cause Defendant to change its corporate policies, practices, and procedures so that its Website will become and remain accessible to blind and visually-impaired consumers. Plaintiff Fischler is blind, visually-impaired handicapped person. Defendant is a retailer of teas and tea drinking accessories.[BN] The Plaintiff is represented by: Douglas B. Lipsky, Esq. Christopher H. Lowe, Esq. LIPSKY LOWE LLP 630 Third Avenue, Fifth Floor New York, NY 10017-6705 Phone: 212.392.4772 Email: doug@lipskylowe.com chris@lipskylowe.com HARVEST RESTAURANT: Underpays Tipped Employees, Reynolds Claims --------------------------------------------------------------- The case, CHRISTINA MARY REYNOLDS, on behalf of herself and all others similarly situated, Plaintiff, vs. DAVE MAGROGAN GROUP, LLC; HARVEST RESTAURANT MANAGEMENT, LLC; HARVEST CHADDS FORD, LLC; HARVEST SUSQUEHANNA VALLEY, LLC; HARVEST LANCASTER, LLC; HARVEST NEWTOWN BUCKS COUNTY, LLC; ARVEST UNIVERSITY CITY, LLC; HARVEST RADNOR, LLC; HARVEST MONT AGE, LLC; HARVEST NORTH WALES, LLC; HARVEST MOORESTOWN, LLC; HARVEST SEASONAL GRILL DELRAY, LLC; WILLIAM DAVID MAGROGAN; GREG KESHGEGIAN and DOE DEFENDANTS 1-10, the Defendants, Case No. 2:19-cv-01937-JD (E.D. Pa., May 3, 2019), is a class and collective action brought on behalf of "Tipped Employees" who work or have worked at restaurants operating under the trade name Harvest Seasonal Grill and Wine Bar that are owned, operated and/or otherwise managed or controlled by the Defendants. According to the complaint, the Defendants employ individuals in a tipped capacity, namely "servers" ("waiters and "waitresses"), "bartenders," "bussers," and "food runners", who are and/or were subjected to Defendants' unlawful pay practices. As Tipped Employees, these individuals were primarily responsible operating the ''front of the house" and interacting with customers, including taking customers' orders, serving them their food/drink, and removing the used plates/glasses after the customers was done eating/drinking. The Defendants systematically and willfully deprived Plaintiff and other Tipped Employees of minimum wages in violation of the Fair Labor Standards Act of 1938, the Pennsylvania Minimum Wage Act, and the Wage Payment and Collection Law, among other things, allegedly failing to satisfy the notice requirements of the tip credit provisions of the FLSA and PMWA, the lawsuit says. Despite performing this unrelated non-tipped work, the Defendants paid Plaintiff and current and former Tipped Employees a sub-minimum wage for performing this work. As a result of these pay practices, Plaintiff and the members of the Classes were illegally under-compensated for their work. Harvest is a restaurant chain that, according to the Company's website, operates seven restaurants in Pennsylvania (including locations in North Wales, Radnor, Lancaster, Montage, Newtown, Glenn Mills, and Harrisburg), one restaurant in Florida (Delray Beach), and one restaurant in New Jersey (Moorestown).[BN] Attorneys for the Plaintiffs and Proposed Classes: Robert J. Gray, Esq. CONNOLLY WELLS & GRAY LLP 2200 Renaiss,ance Blvd., Suite· 275 King of Prussia PA 19406 Telephone: 610-822-3700 Facsimile: 610-822-3800 E-mail: gwells@cwglaw.com rgray@cwglaw.com - and - Gary F. Lynch, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER,. LLP 1J33 Penn Ave, 5th floor Pittsburgh, PA 15222 Telepllone: 412-322-9243 Facsimile: 412·231-0246 E-mail: glynch@carlsonlynch.com HEALTHFIRST INC: Lacario Sues Over Unpaid Overtime Wages -------------------------------------------------------- MALAAIKA LACARIO, on behalf of herself and all others similarly situated, Plaintiff, v. HEALTHFIRST, INC., Defendant, Case No. 1:19-cv-04671 (S.D. N.Y., May 21, 2019) is an action on behalf of Plaintiff and similarly situated Care Management Employees who, due to Defendant's misclassification scheme, were not paid all earned overtime pay for hours worked over 40 in individual workweeks in violation of the Fair Labor Standards Act ("FLSA"), The Defendant required Plaintiff to work over 40 hours in one or more individual workweeks during the last 3 years. In fact, Plaintiff worked over 40 hours in one or more individual workweeks for Defendant during the last three (3) years. When Plaintiff worked over 40 hours in individual workweeks, Defendant did not pay Plaintiff overtime at one-and-one-half times her regular rate of pay, says the complaint. Plaintiff worked as a Care Management Employee for Defendant in New York from approximately September 2015 to April 2018. Defendant is a health insurance company with more than 1.2 million members in downstate New York.[BN] The Plaintiff is represented by: Ravi Sattiraju, Esq. THE SATTIRAJU LAW FIRM, P.C. 116 Village Blvd., Suite 200 Princeton, NJ 08540 Phone: (609) 799-1266 Facsimile: (609) 228-5649 Email: rsattiraju@sattirajulawfirm.com - and - DOUGLAS M. WERMAN, ESQ. MAUREEN A. SALAS, ESQ. Werman Salas P.C. 77 West Washington, Suite 1402 Chicago, IL 60602 Phone: (312) 419-1008 Email: dwerman@flsalaw.com msalas@flsalaw.com - and - TRAVIS M. HEDGPETH, ESQ. THE HEDGPETH LAW FIRM, PC 3050 Post Oak Blvd., Suite 510 Houston, TX 77056 Phone: (281) 572-0727 Facsimile: (281) 572-0728 Email: travis@hedgpethlaw.com - and - JACK SIEGEL, ESQ. Siegel Law Group PLLC 2820 McKinnon, Suite 5009 Dallas, TX 75201 Phone: (214) 790-4454 Email: www.4overtimelawyer.com HOSOPO CORP: Court Allows TCPA Class Action to Proceed ------------------------------------------------------ Eric T. Berkman, writing for New England In-House, reports that attorneys say a recent U.S. District Court decision in Massachusetts broadly interpreting the definition of "automatic telephone dialing system" under the federal Telephone Consumer Protection Act preserves the ability of consumers to seek redress against telemarketers that make unsolicited robocalls to their cellphones. Under the TCPA, a telemarketer is prohibited from calling or texting cellphones using an automatic telephone dialing system without prior written consent of the phone's owner. The law also allows the person being called to sue for $500 per violation. The statute defines an automatic telephone dialing system, or ATDS, as equipment that can "store or produce telephone numbers to be called, using a random or sequential number generator, and . . . to dial such numbers." Some courts across the country have interpreted the definition to cover devices that can store lists of numbers and dial them automatically and devices that can generate numbers on their own to call. Other courts have adopted a narrower definition that includes only devices that can generate random or sequential numbers. In the instant matter, the plaintiffs brought a class action against a solar power vendor and the telemarketing firm it hired to pitch its products, alleging that they violated the TCPA by robocalling them using a system that stored and dialed a list of numbers but did not randomly or sequentially generate the numbers itself. The defendants argued that the narrower definition was the correct one and thus the plaintiffs had no claim under the TCPA. But Judge F. Dennis Saylor IV disagreed. "[T]he TCPA is an unusually confusing statute. But considering the statute as it is written, the Court concludes that the phrase 'using a random or sequential number generator' modifies only the verb 'produce' and not the verb 'store,'" Saylor wrote in denying the defendants' motion to dismiss. "Therefore, to qualify as an ATDS under the TCPA, a device need only have the capacity to do one of the following: either (1) 'store . . . telephone numbers to be called' and 'dial such numbers,' or (2) 'produce telephone numbers to be called, using a random or sequential number generator' and 'dial such numbers.'" Plaintiffs' counsel Anthony I. Paronich of Hingham lauded the ruling for giving consumers an opportunity to seek redress against the type of automated telemarketing conduct at issue in the case. Margot Saunders of the National Consumer Law Center in Washington, D.C., agreed. "If this interpretation becomes the law of the land, as we're hoping it will, then consumers will continue to be protected from unwanted robocalls," said Saunders, who testified about telemarketing and the TCPA before a Senate committee. "If it's not, then none of the automated dialers in use these days will be covered." The 17-page decision is Gonzalez, et al. v. HOSOPO Corporation, et al. Alleged violation Defendant HOSOPO Corp. hired defendant Flowmedia to make telemarketing calls on its behalf. In fall 2017, plaintiff Jeremiah Davila-Lynch received on his cellphone at least five calls from a company he alleges to be "the same" as Horizon Solar. He claimed the calls included pre-recorded messages and alleged that he heard a "click-and-pause" sound upon answering, which indicated to him that they were made using an automatic telephone dialing system. A month later, plaintiff William Gonzalez allegedly received a number of calls on his cellphone that included scripted pitches on behalf of Horizon Solar that he claimed were made by an automatic telephone dialing system. He claimed to receive at least eight more calls directly from Horizon Solar that spring. On Jan. 15, 2018, Davila-Lynch filed a putative class action against Horizon in U.S. District Court on behalf of himself and others similarly situated alleging violations of the TCPA. He later added Flowmedia. Gonzalez joined the suit in August. The defendants moved to dismiss for failure to state a claim, though proceedings against Flowmedia were eventually stayed pending bankruptcy. According to the defendants, the type of device allegedly used to place the calls could not generate random or sequential numbers to be dialed on its own and thus was not an automatic telephone dialing system within the meaning of the statute. Broader definition Saylor rejected the defendants' argument that a telemarketer's dialing system needs the ability to generate random or sequential numbers to be considered an automatic telephone dialing system. In doing so, he rejected the narrow definition espoused in the 3rd U.S. Circuit Court of Appeals' 2018 Dominguez v. Yahoo, Inc. decision in favor of the broader definition adopted by the 9th Circuit last year in Marks v. Crunch San Diego, L.L.C. In the latter case, the 9th Circuit found that a system that simply stores and automatically dials numbers is an automatic telephone dialing system as well. Under the narrower reading, the phrase "using a random or sequential number generator" applied to both the words "store" and "produce." That makes no sense, Saylor said, because though it is easy to imagine an automatic telephone dialing system that produces numbers using a number generator, "it is unclear how an ATDS -- or indeed anything -- could 'store' numbers 'using' a number generator." Accordingly, Saylor concluded, "to the extent Horizon Solar seeks dismissal on the basis that the devices at issue do not qualify as ATDSs under the TCPA, the motion will be denied." Significant decision While conceding that, as a District Court ruling, Saylor's decision does not create binding precedent, Paronich emphasized that it is important to have a Massachusetts court speak on the issue. He also said the decision sends a positive signal about the viability of class actions under the TCPA as a way for consumers to address unwanted robocalls. He noted that it costs several hundred dollars for an individual to file a claim in federal court. "How viable is it for an individual to bring a $500 claim without a fee-shifting provision?" Paronich said. "The TCPA has no fee-shifting provision, which is another reason why the class action device is so particularly important to these claims." "The TCPA should be updated to address contemporary technology and business practices, and federal class action practice should be reformed to eliminate, or at least reduce, the incidence of such costly litigation in which the only real party in interest is class counsel." However, John J. O'Connor of Boston, who represented defendant Flowmedia, said the TCPA is "far from clear," as are the Federal Communications Commission rulings and case law interpreting it. "Reasonable minds can differ over them, as the HOSOPO suit illustrates," he said. O'Connor also emphasized that the TCPA is a strict liability statute, making it virtually impossible for businesses to defend against suits like HOSOPO. As a result, he said, legitimate businesses that need to contact consumers for a living face "ruinous liability" while class action attorneys collect millions of dollars in fees on behalf of consumers who have suffered no actual damages and are simply seeking statutory damages for alleged technical violations. "In my view, the TCPA should be updated to address contemporary technology and business practices, and federal class action practice should be reformed to eliminate, or at least reduce, the incidence of such costly litigation in which the only real party in interest is class counsel," O'Connor said. Matthew P. McCue of Natick, who represents plaintiffs in TCPA cases across the country, countered that "telemarketing is awful now" and would be "astronomically worse" if the industry's interpretation of an automatic telephone dialing system was accepted by the court. "The judge in this case closely looks at all the case law and applies a common-sense textual interpretation and recognizes the remedial purpose of the telemarketing statute, agreeing with the consumer that the true definition should be broader," McCue said. "The whole purpose of the TCPA was to strictly regulate mass telemarketing using computers. If you're going to interpret [ATDS] narrowly, it gives free reign." Boston attorney John J. Roddy, who also represents plaintiffs in consumer class actions, said Saylor "threaded the needle" between modes of statutory construction that might have resulted in a narrower interpretation of an ATDS. "As the conjunctive analysis of these cases makes the word 'store' superfluous, [Saylor's] conclusion that the 'store' and 'produce' elements are disjunctive complies with statutory constructive principles and furthers the TCPA's purpose of eliminating the uniformly despised robocalls that we all seem to receive," Roddy said. [GN] HOT POT FLUSHING: Chovon Files Suit Over Time-Shaving Practices --------------------------------------------------------------- GENARIO CUC CHOVON, on behalf of himself, FLSA Collective Plaintiffs and the Class, Plaintiff, v. HOT POT FLUSHING LLC d/b/a LITTLE SHEEP MONGOLIAN HOT POT, HOT POT MANHATTAN 1 LLC d/b/a LITTLE SHEEP MONGOLIAN HOT POT, JOHN DOE CORPORATIONS 1-23 d/b/a LITTLE SHEEP MONGOLIAN HOT POT, and MICHAEL PUI LEUNG LUK, Defendants, Case No. 1:19-cv-03000 (E.D. N.Y., May 21, 2019) alleges, pursuant to the Fair Labor Standards Act ("FLSA"), and the New York Labor Law ("NYLL"), that Plaintiff and others similarly situated are entitled to recover from Defendants unpaid minimum wage due to time-shaving, unpaid overtime wages, unpaid spread of hours premium, liquidated damages, statutory penalties, and attorneys' fees and costs. The Defendants knowingly and willfully operated their business with a practice of time-shaving and not paying Plaintiff, FLSA Collective Plaintiffs and Class Members the full amount of wages for all of their hours worked, in violation of the FLSA and NYLL, says the complaint. The Defendants knowingly and willfully operated their business with a policy of not paying Plaintiff, FLSA Collective Plaintiffs and Class Members overtime wages for hours worked in excess of 40 per workweek at the proper overtime rate of one-and-one-half times the regular rate of pay, in violation of the FLSA and NYLL. The Defendants knowingly and willfully operated their business with a policy of not paying the proper minimum wage and overtime premium to Tipped Subclass members due to an invalid tip credit allowance, in violation of the FLSA and NYLL, the complaint adds. Plaintiff GENARIO CUC CHOVON was employed by Defendants to work as a dishwasher, from in or around June 2012 until on or about October 24, 2018. Defendants own and operate a chain of Chinese hot pot restaurants as a single integrated enterprise under the shared trade name "Little Sheep Mongolian Hot Pot," with various locations in the United States, Canada, China, and Japan.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 148 West 24th Street, 8th Floor New York, NY 10011 Phone: (212) 465-1188 Fax: (212) 465-1181 HUNTINGTON INGALLS: Herndon Suit Asserts ERISA Violation -------------------------------------------------------- Roger A. Herndon, on behalf of himself and all others similarly situated, Plaintiff, v. Huntington Ingalls Industries, Inc., the HII Administrative Committee, and John/Jane Does 1–5, Defendants, Case No. 4:19-cv-00052 (E.D. Va., May 20, 2019) is a class action against Defendants concerning the failure to pay benefits under the Huntington Ingalls Industries, Inc. Newport News Operations Pension Plan for Employees Covered by United Steelworkers Local 8888 Collective Bargaining Agreement (the "Plan") in amounts that are actuarially equivalent to a single life annuity, as required by the Employee Retirement Income Security Act of 1974 ("ERISA"). Under the part of the Plan that covers employees hired before June 7, 2004 ("Legacy Part"), participants accrue a retirement benefit that is a flat monthly rate for each year of service in the form of a single life annuity ("SLA"), a payment stream that starts when they retire and ends when they die. Participants can choose from several forms of benefits other than an SLA, including joint and survivor annuities, which offer payment streams for retirees' lives and their spouse's lives after the retiree dies, and a Social Security leveling option annuity, which enables early retirees to collect pension benefits until they begin receiving Social Security benefits at which point their pension benefits would be lowered (collectively, "Non-SLA Annuities"). To calculate the benefit amounts for retirees who receive these Non-SLA Annuities, Defendants apply actuarial assumptions to calculate the present value of the future payments. These assumptions are based on a set of mortality tables to predict how long the participant and beneficiary will live and interest rates to discount the expected payments. The mortality table and interest rate together are used to calculate a "conversion factor" which is used to determine the amount of the benefit that would be equivalent to the SLA. Older morality tables predict that people will die at a faster rate (higher mortality rate) than current mortality tables. As a result, using an older mortality table to calculate a conversion factor decreases the present value of the Non-SLA Annuities and interest rates being equal--the monthly payment that retirees who select these Non-SLA Annuities receive. The Defendants calculate the conversion factor (and thus the present value of the Non-SLA Annuities) for the Legacy Part using the 1971 Group Annuity Mortality Table ("1971 GAM table"). Using the 1971 GAM table, which is based on data collected roughly 50 ago, depresses the present value of Non-SLA Annuities, resulting in monthly payments that are materially lower than they would be if Defendants used reasonable, current actuarial assumptions. By using outdated mortality assumptions to calculate Non-SLA Annuities under the Legacy Part, Defendants improperly reduce Plaintiff's benefits. Plaintiff has forfeited his benefits causing him to receive less than he should each month in violation of ERISA. By not offering benefits that are actuarially equivalent to the single life annuity, Huntington Ingalls is causing retirees to lose part of their vested retirement benefits in violation of ERISA, says the complaint. Plaintiff Roger A. Herndon is a resident of Hayes, Virginia, and a Participant in the Legacy Part of the Plan. Mr. Herndon worked for Huntington Ingalls for approximately 40 years until he retired in 2013. Huntington Ingalls is a shipbuilding company with its headquarters in Newport News, Virginia. Huntington Ingalls sponsors the Plan.[BN] The Plaintiff is represented by: Gregory Y. Porter, Esq. BAILEY & GLASSER LLP 1055 Thomas Jefferson Street, NW, Suite 540 Washington, DC 20007 Phone: (202) 463-2101 Fax: (202) 463-2103 fax Email: gporter@baileyglasser.com - and - Mark G. Bokyo, Esq. BAILEY & GLASSER LLP 8012 Bonhomme Avenue, Suite 300 Clayton, MO 63105 Phone: (314) 863-5446 Fax: (314) 863-5483 Email: mboyko@baileyglasser.com - and - Robert A. Izard, Esq. Mark P. Kindall, Esq. Seth R. Klein, Esq. Douglas P. Needham, Esq. Oren Faircloth, Esq. IZARD, KINDALL & RAABE LLP 29 South Main Street, Suite 305 West Hartford, CT 06107 Phone: (860) 493-6292 Fax: (860) 493-6290 Email: rizard@ikrlaw.com mkindall@ikrlaw.com sklein@ikrlaw.com dneedham@ikrlaw.com ofaircloth@ikrlaw.com HYUNDAI MOTOR: Lieff Cabraser, Baron & Budd File Class Action ------------------------------------------------------------- On April 29, 2019, Lieff Cabraser and Baron & Budd filed a class action lawsuit in federal court in California on behalf of consumers across the U.S. against Hyundai Motor America, Kia Motor America, and ZF-TRW Automotive Holding Corp. over defective vehicle airbags that fail to operate during crashes due to electrical overstress ("EOS"). As detailed in the Complaint, a defect in the application-specific integrated circuit ("ASIC") built into the airbags causes a failure in the Airbag Control Unit that prevents the airbags and the seat belt pretensioners, both vital to maximizing safety in a vehicle crash, from deploying. As the Complaint further alleges, ZF-TRW, Hyundai, and Kia became aware of the ACU defect as early as 2011, but did nothing to protect consumers or warn of the product dangers until 2018. As the Complaint states, "From 2011 through 2015, ZF-TRW, Hyundai, and Kia investigated airbag non-deployments in several Kia and Hyundai vehicles but failed to inform NHTSA that there was an issue until the end of 2015. Even after advising NHTSA in 2015, each of these companies downplayed the severity and frequency of these non-deployment crashes. It was not until February and June of 2018 that Hyundai and Kia, respectively, issued product recalls as to a small segment of their vehicles." Throughout this nearly decade-long period, unsuspecting U.S. consumers purchased vehicles with defective ACUs which create a dangerous condition that gives rise to a clear, substantial, and unreasonable danger of personal injury, indisputably posing a grave and wholly unnecessary safety risk. As the Complaint notes, "ZF-TRW, Hyundai, and Kia put profits ahead of safety by continuing to equip vehicles with ACUs year after year, even though they knew or should have known those ACUs were defective. Despite the number of airbag failures, injuries, and deaths caused by the ASIC Defect, ZF-TRW, Hyundai, and Kia were slow to fully investigate the problem and slow to report the danger to drivers and passengers of all ACU equipped vehicles. Only after several deaths, injuries, and investigations did Hyundai and Kia choose to recall a fraction of their vehicles equipped with the ASIC Defect." "This is not just fraud but also an astonishing breach of the public trust," notes Lieff Cabraser partner David Stellings, one of the lawyers who filed the class action lawsuit. "Airbags and seat belts exist for only one reason: to protect passengers from being hurt in a crash. The defective ZF-TRW airbag and seatbelt system Hyundai and Kia installed in their cars do exactly the opposite -- they stop working when the car crashes. Millions of drivers and passengers are at risk of being injured or killed." The Complaint notes that as a result of this misconduct, Plaintiffs and members of the proposed Classes were harmed and suffered actual damages; they did not receive the benefit of their bargain, and instead purchased or leased vehicles that are of a lesser standard, grade, and quality than represented, and did not receive vehicles that met ordinary and reasonable consumer expectations regarding safe and reliable operation. Purchasers or lessees of the affected vehicles paid more, either through a higher purchase price or higher lease payments, than they would have had the ASIC defect been disclosed. Plaintiffs and the Classes were deprived of having a safe, defect-free airbag installed in their vehicles, and ZF-TRW, Hyundai, and Kia unjustly benefited from their unconscionable delay in recalling its defective products, as they avoided incurring the costs associated with recalls and installing replacement parts for years. Vehicles in the Lawsuit "Class Vehicles" refers to the Kia Forte 2013; Kia Forte Koup 2013; Kia Optima 2013-2019; Kia Optima Hybrid 2012-2016; Kia Sedona 2014; Hyundai Sonata 2013-2019; and Hyundai Sonata Hybrid 2013-2019. (The defective ZF-TRW airbags were also supplied to other vehicle manufacturers, including Toyota/Acura, Honda, FiatChrysler/Dodge/Ram/Jeep, and Mitsubishi.) The class action lawsuit states claims that include fraud, fraudulent concealment, violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), violation of the Magnuson-Moss Warranty Act, unjust enrichment, violation of the Song-Beverly Consumer Warranty Act for Breach of Implied Warranty of Merchantability, and violation of the California Unfair Competition Law. The lawsuit seeks class certification as well as remedies in the form of an order enjoining Hyundai and Kia from further deceptive distribution, sales, and lease practices with respect to the affected vehicles, an award to plaintiffs and the class members of compensatory, exemplary, and punitive damages, and an award for the return of the purchase price of the affected vehicles. About Lieff Cabraser Recognized as "one of the nation's premier plaintiffs' firms" by The American Lawyer, Lieff Cabraser is a national plaintiffs' law firm with offices in San Francisco, New York, and Nashville. We have successfully prosecuted scores of product defect class action lawsuits against many of the largest U.S. manufacturers and corporations. Working with co-counsel, we have achieved judgments and settlements in these cases in excess of $19 billion for consumers. Learn more at lieffcabraser.com. About Baron & Budd Established more than four decades ago to fight for workers injured by asbestos, Baron & Budd has expanded to confront not only the asbestos industry but also other societal threats such as water contamination, unsafe pharmaceutical drugs and devices, financial industry fraud, and automobile recalls. Baron & Budd has been named repeatedly to "The Plaintiffs' Hot List" of exemplary plaintiffs' firms in the United States by The National Law Journal. Legal 500 has repeatedly honored Baron & Budd for being one of the top two law firms in the U.S. for toxic tort claims. [GN] IKEA US RETAIL: Miller Suit Asserts Gender Discrimination --------------------------------------------------------- LORI MILLER, on behalf of herself and all others similarly situated, Plaintiff, v. IKEA US RETAIL, LLC, Defendant, Case No. 6:19-cv-00939-GAP-GJK (M.D. Fla., May 20, 2019) brings collective claims alleging violations of the Equal Pay Act ("EPA") on behalf of all similarly-situated female visual merchandisers. According to the complaint, the Defendant has engaged in systematic gender discrimination against its female visual merchandisers. Defendant has caused, contributed to, and perpetuated gender-based pay disparities through common policies, practices, and procedures. The EPA collective action Plaintiff seeks to represent are all female visual merchandisers who were paid less than male visual merchandisers for doing similar work. The systemic gender discrimination described in this Complaint has been, and is, continuing in nature, says the complaint. Plaintiff began her employment with IKEA working as a Visual Merchandiser in Orlando, Florida in or around November 2007. IKEA, is a Foreign Profit Corporation authorized and doing business in this Judicial District.[BN] The Plaintiff is represented by: GREGORY A. OWENS, ESQ. MIGUEL BOUZAS, ESQ. FLORIN GRAY BOUZAS OWENS, LLC 16524 Pointe Village Dr., Suite 100 Lutz, Florida 33558 Phone: (727) 254-5255 Fax: (727) 483-7942 Email: greg@fgbolaw.com miguel@fgbolaw.com INTERNATIONAL PAPER: Class Certification Sought in Slocum Suit -------------------------------------------------------------- Brent Jarrell, Elizabeth Simmons, Linda Nunnery, Willie Bickham, and Herbert Angel, Plaintiffs in the lawsuit styled SHIRLEY SLOCUM, ET AL. v. INTERNATIONAL PAPER COMPANY, ET AL., Case Nos. 2:16-cv-12563-EEF-JVM, 2:16-cv-12567-EEF-JVM, 2:16-cv-13793-EEF-JVM and 2:16-cv-13346-EEF-JVM (E.D. La.), move for class certification. The Plaintiffs contend that the central question before the Court is whether or not this case should be managed and tried as a class action and, if so, how should the class be defined and managed in order to bring over 2,500 cases to a conclusion. The case arises from a single incident involving the release on June 10, 2015, of a chemical substance known as Black Liquor into the atmosphere and area surrounding the Paper Mill in Bogalusa, Louisiana, owned and operated by the Defendant. The Plaintiffs allege this release was entirely preventable had IP acted with reasonable care. They argue that this release of the harmful substances into the environment caused injuries to individuals and damaged property in the area.[CC] The Plaintiffs are represented by: Shawn C. Reed, Esq. HOWARD REED & PEDERSEN 516. N. Columbia Street Covington, LA 70433 Telephone: (985) 893-3607 Facsimile: (985) 893-3478 E-mail: sreed@howardandreed.com - and - D. Douglas Howard, Jr., Esq. Jonathan C. Pedersen, Esq. HOWARD REED & PEDERSEN 839 St. Charles Avenue, Suite 306 New Orleans, LA 70130 Telephone: (504) 581-3610 Facsimile: (504) 581-7509 E-mail: dhoward@howardandreed.com jcpedersen@howardandreed.com - and - William H. Arata, Esq. ARATA & ARATA 216 Austin Street Bogalusa, LA 70427 Telephone: (985) 735-1368 E-mail: aratalaw@bellsouth.net - and - Thomas M. Discon, Esq. Scott G. Discon, Esq. DISCON LAW FIRM 424 N. Causeway Blvd., Suite A Mandeville, La 70448 Telephone: (985) 674-9748 E-mail: tdiscon@disconlawfirm.com sdiscon@disconlawfirm.com INTUIT INC: Kehiaian Sues Over Deceptive Business Practices ----------------------------------------------------------- DENNIS KEHIAIAN, individually and on behalf of all others similarly situated, Plaintiff, v. INTUIT INC., Defendant, Case No. 3:19-cv-02742 (N.D. Cal., May 20, 2019) seeks all monetary and non-monetary relief allowed by law, including restitution of all profits stemming from Intuit's unfair and fraudulent business practices; declaratory relief; as well as reasonable attorneys' fees and costs under California Code of Civil Procedure. TurboTax is a tax preparation software, owned and manufactured by Intuit, that is utilized to file more than 35 million tax returns for American taxpayers every year when filing their income tax returns with both the United States Internal Revenue Service ("IRS") and individual states. One of the main benefits of using TurboTax is the ability to electronically file tax returns. This not only results in convenience at the time of filing, but refunds for electronic filings are processed more quickly than for hard copy filings. Pursuant to an agreement with the IRS, TurboTax and 11 other tax preparation providers are required to cumulatively offer 70% of U.S. taxpayers the option to file their taxes for free. For the 2018 tax season, any taxpayer whose adjusted gross income is $66,000 or less is eligible to use tax preparation software from one of these providers to prepare and file their tax returns for free. According to the complaint, TurboTax violated its agreement with the IRS by intentionally diverting qualified taxpayers away from its "free filing" program in favor of its paid product offerings. It did this by segregating its "free file" webpage from its primary website and then altering the website's code in order to keep it hidden from search engines like Google so that it would not be easily accessible to qualified taxpayers. TurboTax also marketed its paid offerings as "Free Guaranteed", so that qualified taxpayers believed they were filing their taxes pursuant to the free-filing program, only to be hit with unexpected charges after they already spent hours entering information and were getting ready to file. As a result of this scheme, TurboTax breached its agreement with the government, took advantage of the U.S. public, and generated millions of dollars of ill-gotten gains from persons who least can afford it, says the complaint. Plaintiff Dennis Kehiaian is a resident and citizen of Clarkton, North Carolina who paid to file his 2018 tax returns using TurboTax despite qualifying for the IRS free filing program. Intuit markets, sells and operates TurboTax, a tax preparation and filing software product and service.[BN] The Plaintiff is reprensted by: Eric H. Gibbs, Esq. GIBBS LAW GROUP LLP 505 14th Street, Suite 1110 Oakland, CA 94612 Phone: (510) 350-9700 Fax: (510) 350-9701 Email: ehg@classlawgroup.com - and - Norman E. Siegel, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Phone: (816) 714-7100 Fax: (816) 714-7101 Email: siegel@stuevesiegel.com - and - Joseph G. Sauder, Esq. Matthew D. Schelkopf, Esq. Joseph B. Kenney, Esq. SAUDER SCHELKOPF LLC 555 Lancaster Avenue Berwyn, PA 19312 Phone: 888.711.9975 Email: jgs@sstriallawyers.com mds@sstriallawyers.com jbk@sstriallawyers.com IRONCLAD ENERGY: Certification of Pumpdown Supervisors Class Sought ------------------------------------------------------------------- In the class action lawsuit DEXTER HINES, NICK NOLES, JEREMY MARTIN, JOSEPH SMITH and REGINALD VANZANDT, Each Individually and on behalf of All Others Similarly Situated, the Plainitff, vs. IRONCLAD ENERGY, LLC, JAMES C. DONNAN and STEVEN CLOY GANTT, the DEFENDANTS, Case No. 5:19-cv-00155-OLG (W.D. Tex.), the Plaintiffs ask the Court to conditionally certify a class of: "all Pumpdown Supervisors and Operators since February 19, 2016". In conjunction with the current Motion, the Plaintiffs filed their Motion for Approval and Distribution of Notice and for Disclosure of Contact Information, setting forth Plaintiffs' requests related to providing notice to putative class members of any class certified by this Court pursuant to the current Motion. The Plaintiffs brought this suit on behalf of all hourly-paid employees of Defendants to recover overtime wages and other damages pursuant to the Fair Labor Standards Act.[CC] Attorneys for the Plaintiffs: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford Road, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 ITT AEROSPACE: Toribio Hits Unpaid Wages, Missed Breaks ------------------------------------------------------- ITXEL TORIBIO, individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. ITT AEROSPACE CONTROLS, LLC, a Delaware limited liability company; ITT, INC., an Indiana corporation; and DOES 1 through 100, inclusive; Defendants, Case No. 19STCV17469 (Cal. Super. Ct., Los Angeles Cty., May 20, 2019) alleges that Defendants directly or indirectly controlled or affected the working conditions, wages, working hours, and conditions of employment of Plaintiff and the other class members. As a pattern and practice, Defendants failed to pay overtime wages to Plaintiff and the other class members for all hours worked, notes the complaint. Plaintiff and other class members were required to work more than 8 hours per day and/or 40 hours per week without overtime compensation. The Defendants also failed to provide the requisite uninterrupted and timely meal and rest periods to Plaintiff and other class members, says the complaint. Plaintiff was employed by Defendants as an hourly-paid, non-exempt employee, from approximately in or about October 2017 to November 2018, in the State of California. ITT AEROSPACE 6. CONTROLS, LLC, is a Delaware limited liability company.[BN] The Plaintiffs are represented by: DOUGLAS HAN, ESQ. SHUNT TATAVOS-GHARAJEH, ESQ. DANIEL J. PARK, ESQ. JUSTICE LAW CORPORATION 751 N. Fair Oaks Avenue, Suite 101 Pasadena, CA 91103 Phone: (818) 230-7502 Facsimile: (818)230-7259 IVY ENTERPRISES: Han Seeks Unpaid Overtime Compensation ------------------------------------------------------- John Han On behalf of himself and all other Plaintiffs similarly situated known and unknown, Plaintiff, v. IVY Enterprises, Inc. and Hans Han, Defendants, Case No. 1:19-cv-03023 (E.D. N.Y., May 21, 2019) is a lawsuit arising under the Fair Labor Standards Act ("FLSA"), and the New York Labor Law ("NYLL"), for Defendants' failure to pay overtime compensation to Plaintiff. During the course of his employment by Defendants, Plaintiff regularly worked over 8 hours per day and over 40 hours per week. However, the Defendants did not pay him overtime wage and they never compensated Plaintiff with the spread of hours pay. Plaintiff further alleges that Defendants' failure to pay overtime wages is willful and intentional, says the complaint. Plaintiff was hired by the Defendants as a delivery driver. IVY Enterprises, Inc. was at all relevant times hereto engaged in interstate commerce.[BN] The Plaintiff is represented by: Ryan J. Kim, Esq. Ryan Kim Law 163-10 Northern Blvd. Suite 205 Flushing, NY 11358 Email: ryan@RyanKimLaw.com JERRY W. BAILEY: Court Decertify Provisional Class in Koch ---------------------------------------------------------- The United States District Court for the Northern District of Indiana, Fort Wayne Division, issued an Opinion and Order granting Defendants' Motion to Decertify Provisional Class and Collective Actions in the case captioned DANIEL KOCH and JOHNNY RAY WELLS, JR., on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. JERRY W. BAILEY TRUCKING, INC., JERRY W. BAILEY and LINDA L. BAILEY, Defendants. Cause No. 1:14-CV-72-HAB. (N.D. Ind.). Plaintiffs allege that Jerry W. Bailey Trucking, Inc. (JWBT) violated both federal and state wage laws, the Fair Labor Standards Act (FLSA)., the Indiana Wage Payment Statute, Ind. Code and the Indiana Wage Claims Statute, Ind., by failing to pay employees for certain work performed off-the-clock. Plaintiffs claim that they are entitled to overtime wages, regular wages, and overtime premiums. CERTIFICATION STANDARD Under Rule 23(a), class certification is permitted only if these four requirements are met: (1) the class is so numerous that joinder of all members is impracticable (2) there are questions of law or fact common to the class (3) the claims or defenses of the representative parties are typical of the claims and defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Motions to decertify a class are reviewed using the same standards as motions to certify a class. Motions to decertify a class are not subject to the heightened standards of review applied to motions for reconsideration, even if the class was previously certified by a different judge. Under Section 216(b) of the FLSA, employees may bring a collective action on behalf of themselves and other similarly situated' employees against employers who violate the Act's minimum wage or overtime provisions. A collective action under the FLSA is different from a class action certified under Federal Rule of Civil Procedure 23. Therefore, when deciding whether to decertify a collective action and a class action in one lawsuit, the court treats them as a single class action and applies the Rule 23 standards. PLAINTIFFS CANNOT DEMONSTRATE SUFFICIENT NUMEROSITY The Defendants ask this Court to decertify the class and collective actions on several bases, including an insufficient number of class members, a lack of typicality and commonality between and among the class members, alleged misconduct by class counsel, and the claim that Plaintiff Koch should be removed as representative. If the numerosity issue were removed from the discussion, the Court would likely find that the Plaintiffs have continued to meet the standard for certification and deny the motion. However, the numerosity issue is before the Court, and it is dispositive. When this Court originally certified the class and collective actions, it noted that the potential number of class member was sixty or more, based upon the affidavits of Plaintiffs. Now, however, Plaintiffs can identify only sixteen class members and only fourteen members of the collective action. These numbers, taken alone, do not support a finding of sufficient numerosity, a fact that Plaintiffs tacitly admit. Accordingly, class size alone will not save the certification. Nor does the Court find that there are sufficient special circumstances in this case to support ongoing certification of such a small class. Cases finding such special circumstances are instructive. In Gaspar v. Linvatec Corp., 167 F.R.D. 51 (N.D. Ill. 1996), the court certified a class consisting of only eighteen members. Although there were few potential plaintiffs, class certification served judicial economy because a single issue determined liability for all of the class members and they were dispersed among Illinois, New Jersey, and Tennessee. Here, the Plaintiffs cannot identify any such difficulties. The class members have been identified, by name, in the parties briefing. All of the class members are residents of this district. The Plaintiffs have not identified any difficulty, much less extreme difficulty, in joining the individual members of the class or collective actions. Common sense compels the Court to find that the numerosity requirement is no longer met, and that the class and collective actions must be decertified. Accordingly, the Court grants the Defendants' Motion to Decertify Provisional Class and Collective Actions. A full-text copy of the District Court's May 16, 2019 Opinion and Order is available at https://tinyurl.com/y6jhwed4 from Leagle.com. Daniel Koch, on Behalf of Himself and All Others Similarly Situated & Johnny Ray Wells, Jr, on Behalf of Himself and All Others Similarly Situated, Plaintiffs, represented by Ronald E. Weldy, Weldy Law, 8383 Craig St, Ste 330, Indianapolis, IN, 46250-3541 Linda L Bailey & Jerry W Bailey Trucking Inc, Defendants, represented by Theodore T. Storer, Rothberg Logan & Warsco LLP, 505 East Washington Boulevard, P.O. Box 11647, Fort Wayne, IN 46859-1647 Jerry W Bailey, Estate Defendant, represented by Theodore T. Storer , Rothberg Logan & Warsco LLP. JIFFY LUBE: Turizo Sues over Unwanted Text Messages --------------------------------------------------- The case, BLAKE TURIZO, individually and on behalf of all others similarly situated, the Plaintiff, v. JIFFY LUBE INTERNATIONAL, INC., a Delaware corporation, the Defendant, Case No. 0:19-cv-61140-XXXX (S.D. Fla., May 5, 2019), contends that the Defendant, as part of its business practices, would often send text messages to individuals without their prior consent. These messages were sent using mass-automated technology through a third-party company hired by Defendant to send text messages on Defendant's behalf en masse, in violation of the Telephone Consumer Protection Act. The Defendant operates more than 2,000 automobile service across the United States.[BN] Attorneys for the Plaintiff and Class Members: Jibrael S. Hindi, Esq. THE LAW OFFICE OF JIBRAEL S. HINDI , PLLC. 110 SE 6th Street Ft. Lauderdale, FL 33301 Telephone: (954) 907-1136 Facsimile: (855) 529-9540 E-mail: jibrael@jibraellaw.com JIMMY JAZZ: Pierre Suit Asserts ADA Violation --------------------------------------------- JOCELYN PIERRE, on behalf of himself, and all others similarly situated, Plaintiff, v. JIMMY JAZZ, INC, Defendant, Case No. 1:19-cv-02976 (E.D. N.Y., May 20, 2019) asserts injunctive relief, compensatory relief, and attorney fees and costs pursuant to the Americans with Disabilities Act ("ADA"), the New York Human Rights Law ("NYCHRL"), and the New York State Human Rights Law ("NYSHRL") and their implementing regulations, in connection with accessibility barriers at various properties owned and managed by Defendant. Plaintiff, as well as a class consisting of hundreds of thousands of similarly situated disabled individuals, are functionally excluded from some or all of the goods, services, and amenities offered to the general public at each of the Defendant's locations nationwide and in this District, asserts the complaint. By this litigation, Plaintiff, on behalf of himself and the class, seeks to bring all of Defendant's locations into compliance with applicable state and federal law, and to recover applicable damages owed to each member of the class. Plaintiff Jocelyn Pierre has at all relevant times suffered from a "qualified disability" under the ADA, because he is a paraplegic and uses a wheelchair for mobility. JIMMY JAZZ, INC is a New York domestic business corporation authorized to conduct and is conducting business within the State of New York and is the lessor, owner and operator of all nationwide Jimmy Jazz Facilities.[BN] The Plaintiff is represented by: BRADLY G. MARKS, ESQ. THE MARKS LAW FIRM, PC 175 Varick Street, 3rd Fl. New York, NY 10014 Phone: (646) 770-3775 Fax: (646) 770- 2639 Email: brad@markslawpc.com JOHNSON & JOHNSON: Carter Suit Moved to C.D. California ------------------------------------------------------- STELLA CARTER, the Plaintiff, vs. JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER, INC. P/N/A JOHNSON & JOHNSON CONSUMER COMPANIES, INC.; and IMERYS TALC AMERICA, INC. F/K/A LUZENAC AMERICA, INC., the Defendants, Case No. 18CV335259 (Sep. 25, 2018), was removed from the Superior Court of California, County of Santa Clara, to U.S. District Court for the Central District of California on May 1, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-03722 to the proceeding. The suit seeks to recover damages as a result of the Defendants' negligent failure to warn and the design defect of their talcum-based products. Johnson & Johnson designed, developed, manufactured, tested, packaged, promoted, marketed, advertised, distributed, labeled, and sold the products to consumers, and Imerys mined, extracted, sorted, milled, processed, treated, processed, formulated, packaged, sold, and shipped the talcum powder that comprises the products to Johnson & Johnson. Despite the mounting scientific and medical evidence regarding talc use and ovarian cancer development over the past several decades, none of the warnings on product labels or in other marketing informed users, or similarly situated individuals, that use of the Products in the genital area could lead to an increased risk of ovarian cancer. For example, the only warnings on the Baby Powder label are to "keep powder away from child's face to avoid inhalation, which can cause breathing problems," and to "avoid contact with eyes", the lawsuit says.[BN] Attorneys for the Plaintiff: Curtis G. Hoke, Esq. THE MILLER FIRM, LLC 108 Railroad Ave. Orange, VA 22960 Telephone: (540) 672-4224 Facsimile: (540) 672-3055 E-mail: choke@millerfirmllc.com JOHNSON & JOHNSON: Castro Suit Moved to C.D. California ------------------------------------------------------- KERIJANE CASTRO, the Plaintiff, vs. JOHNSON & JOHNSON, a New Jersey corporation doing business in California; JOHNSON & JOHNSON CONSUMER INC. F/K/A JOHNSON & JOHNSON CONSUMER COMPANIES, INC., a New Jersey corporation doing business in California; IMERYS TALC AMERICA, INC., a Delaware Corporation with its principal place of business in the State of California; and DOES 1 through 100, inclusive, the Defendants, Case No. 30-2017-00052045-CU-PL-CXC (Oct. 31, 2018), was removed from the Superior Court of California, County of Orange, to U.S. District Court for the Central District of California on May 1, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-03760 to the proceeding. The suit seeks to recover damages as a result of the Defendants' negligent failure to warn and the design defect of their talcum-based products. Johnson & Johnson designed, developed, manufactured, tested, packaged, promoted, marketed, advertised, distributed, labeled, and sold the products to consumers, and Imerys mined, extracted, sorted, milled, processed, treated, processed, formulated, packaged, sold, and shipped the talcum powder that comprises the products to Johnson & Johnson. Despite the mounting scientific and medical evidence regarding talc use and ovarian cancer development over the past several decades, none of the warnings on product labels or in other marketing informed users, or similarly situated individuals, that use of the Products in the genital area could lead to an increased risk of ovarian cancer. For example, the only warnings on the Baby Powder label are to "keep powder away from child's face to avoid inhalation, which can cause breathing problems," and to "avoid contact with eyes", the lawsuit says.[BN] Attorneys for the Plaintiff: Richard Salkow, Esq. SALKOW LAW, APC 1540 7th Street, Ste. 206 Santa Monica, CA 90401-3432 Telephone: (310) 451-8484; Facsimile: (310) 451-8486 E-mail address: rsalkow@salkowlaw.com - and - James G. Onder, Esq. THE ONDER LAW FIRM 110 East Lockwood St. Louis, MO 63119 Telephone: (314) 963-9000 Facsimile: (314) 963-1700 E-mail: onder@onderlaw.com JOHNSON & JOHNSON: DeBoth Suit Moved to C.D. California ------------------------------------------------------- Ramona DeBoth, an individual, the Plaintiff, vs. JOHNSON & JOHNSON, a New Jersey corporation doing business in California; JOHNSON & JOHNSON CONSUMER COMPANIES, INC., a New Jersey corporation doing business in California; IMERYS TALC AMERICA, INC., a Delaware Corporation with its principal place of business in the state of California and DOES 1 through 100, the Defendants, Case No. CV-416760, was removed from the Superior Court of California, County of Lake, to U.S. District Court for the Central District of California on April 29, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-03541 to the proceeding. The suit seeks to recover damages as a result of the Defendants' negligent failure to warn and the design defect of their talcum-based products. Johnson & Johnson designed, developed, manufactured, tested, packaged, promoted, marketed, advertised, distributed, labeled, and sold the products to consumers, and Imerys mined, extracted, sorted, milled, processed, treated, processed, formulated, packaged, sold, and shipped the talcum powder that comprises the products to Johnson & Johnson. Despite the mounting scientific and medical evidence regarding talc use and ovarian cancer development over the past several decades, none of the warnings on product labels or in other marketing informed users, or similarly situated individuals, that use of the Products in the genital area could lead to an increased risk of ovarian cancer. For example, the only warnings on the Baby Powder label are to "keep powder away from child's face to avoid inhalation, which can cause breathing problems," and to "avoid contact with eyes", the lawsuit says.[BN] Attorneys for the Plaintiff: Mark P. Robinson, Jr., Esq. Karen L. Karavatos, Esq. Cynthia Garber, Esq. ROBINSON CALCAGNIE, INC. 19 Corporate Plawi Drive Newport Beach, CA 92660 Telephone: 949 720 1288 Facsimile: 949 720-1292 - and - Gerald J. Diaz, Jr., Esq. James R. Segars, III, Esq. TILE DIAZ LAW FIRM, PLLC 208 Waterford Square, Suite 300 Madison, MS 39110 Telephone: 601 607-3456 Facsimile: 601 607-3393 JOHNSON & JOHNSON: Foster Suit Moved to C.D. California ------------------------------------------------------- LOTTIE FOSTER, an individual, the Plaintiff, vs. JOHNSON & JOHNSON, a New Jersey corporation doing business in California; JOHNSON & JOHNSON CONSUMER INC. F/K/A JOHNSON & JOHNSON CONSUMER COMPANIES, INC., a New Jersey corporation doing business in California; IMERYS TALC AMERICA, INC., a Delaware Corporation with its principal place of business in the State of California; and DOES 1 through 100, inclusive, the Defendants, Case No. 37-2017-00032641-CU-PL-NC (Filed Sept. 1, 2017), was removed from the Superior Court of California, County of San Diego, to U.S. District Court for the Central District of California on April 30, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-03674 to the proceeding. The suit seeks to recover damages as a result of the Defendants' negligent failure to warn and the design defect of their talcum-based products. Johnson & Johnson designed, developed, manufactured, tested, packaged, promoted, marketed, advertised, distributed, labeled, and sold the products to consumers, and Imerys mined, extracted, sorted, milled, processed, treated, processed, formulated, packaged, sold, and shipped the talcum powder that comprises the products to Johnson & Johnson. Despite the mounting scientific and medical evidence regarding talc use and ovarian cancer development over the past several decades, none of the warnings on product labels or in other marketing informed users, or similarly situated individuals, that use of the Products in the genital area could lead to an increased risk of ovarian cancer. For example, the only warnings on the Baby Powder label are to "keep powder away from child's face to avoid inhalation, which can cause breathing problems," and to "avoid contact with eyes", the lawsuit says.[BN] Attorneys for the Plaintiff: Ted G. Meadows, Esq. BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, PC 218 Commerce Street Montgomery, AL 36104 Telephone: (800) 898 2034 E-mail: led.meadows@beasleyallen.com - and - Helen Zukin, Esq. Melanie Meneses Palmer, Esq. Cherisse Cleofe KIESEL LAW LLP 8648 Willshire Blvd. Beverley Hills, CA 90211-2910 Telephone: 310 854 4444 Facsimile: 310 354 0812 E-mail: atkin@lchasellaw paliner@kiesellaw cleofe@kiesellaw JOHNSON & JOHNSON: Franco Suit Moved to C.D. California ------------------------------------------------------- JULIE FRANCO, individually, the Plaintiff, vs. JOHNSON & JOHNSON, a New Jersey corporation doing business in California; JOHNSON & JOHNSON CONSUMER INC. F/K/A JOHNSON & JOHNSON CONSUMER COMPANIES, INC., a New Jersey corporation doing business in California; IMERYS TALC AMERICA, INC., a Delaware Corporation with its principal place of business in the State of California; and DOES 1 through 100, inclusive, the Defendants, Case No. CIVDS1823459 (Filed Sept. 7, 2018), was removed from the Superior Court of California, County of San Bernadino, to U.S. District Court for the Central District of California on April 30, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-03616 to the proceeding. The suit seeks to recover damages as a result of the Defendants' negligent failure to warn and the design defect of their talcum-based products. Johnson & Johnson designed, developed, manufactured, tested, packaged, promoted, marketed, advertised, distributed, labeled, and sold the products to consumers, and Imerys mined, extracted, sorted, milled, processed, treated, processed, formulated, packaged, sold, and shipped the talcum powder that comprises the products to Johnson & Johnson. Despite the mounting scientific and medical evidence regarding talc use and ovarian cancer development over the past several decades, none of the warnings on product labels or in other marketing informed users, or similarly situated individuals, that use of the Products in the genital area could lead to an increased risk of ovarian cancer. For example, the only warnings on the Baby Powder label are to "keep powder away from child's face to avoid inhalation, which can cause breathing problems," and to "avoid contact with eyes", the lawsuit says.[BN] Attorneys for the Plaintiff: Brian D. Chase, Esq. Tom G. Antunovich, Esq. BISNAR CHASE 1301 Dove Street, Suite 120 Newport Beach, CA 92660 Telephone: (949) 752-2999 Facsimile: (949) 752-2777 E-mail: chase@bisnarchase.com tanitenovich@bisnarchase.com JOHNSON & JOHNSON: Grijalva Suit Moved to C.D. California --------------------------------------------------------- LAUREN GRIJALVA, the Plaintiff, vs. JOHNSON & JOHNSON, a New Jersey corporation doing business in California; JOHNSON & JOHNSON CONSUMER COMPANIES, INC., a New Jersey corporation doing business in California; IMERYS TALC AMERICA, INC., a Delaware Corporation with its principal place of business in the State of California; and DOES 1 through 100, the Defendants, Case No. 30-2017-000200-CU-PL-CXC (Filed Oct. 31, 2017), was removed from the Superior Court of California, County of Orange, to U.S. District Court for the Central District of California on April 29, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-03559 to the proceeding. The suit seeks to recover damages as a result of the Defendants' negligent failure to warn and the design defect of their talcum-based products. Johnson & Johnson designed, developed, manufactured, tested, packaged, promoted, marketed, advertised, distributed, labeled, and sold the products to consumers, and Imerys mined, extracted, sorted, milled, processed, treated, processed, formulated, packaged, sold, and shipped the talcum powder that comprises the products to Johnson & Johnson. Despite the mounting scientific and medical evidence regarding talc use and ovarian cancer development over the past several decades, none of the warnings on product labels or in other marketing informed users, or similarly situated individuals, that use of the Products in the genital area could lead to an increased risk of ovarian cancer. For example, the only warnings on the Baby Powder label are to "keep powder away from child's face to avoid inhalation, which can cause breathing problems," and to "avoid contact with eyes", the lawsuit says.[BN] Attorneys for the Plaintiff: Richard Salkow, Esq. SALKOW LAW, APC 1540 7th Street, Ste. 206 Santa Monica, CA 90401-3432 Telephone: (310) 451-8484; Facsimile: (310) 451-8486 E-mail address: rsalkow@salkowlaw.com - and - James G. Onder, Esq. THE ONDER LAW FIRM 110 East Lockwood St. Louis, MO 63119 Telephone: (314) 963-9000 Facsimile: (314) 963-1700 E-mail: onder@onderlaw.com JOHNSON & JOHNSON: Groff Suit Moved to C.D. California ------------------------------------------------------ SANYETTA GROFF, an individual, the Plaintiff, vs. JOHNSON & JOHNSON, a New Jersey corporation doing business in California; JOHNSON & JOHNSON CONSUMER INC. F/K/A JOHNSON & JOHNSON CONSUMER COMPANIES, INC., a New Jersey corporation doing business in California; IMERYS TALC AMERICA, INC., a Delaware Corporation with its principal place of business in the State of California; and DOES 1 through 100, inclusive, the Defendants, Case No. BCV-18-102223 (Sept. 6, 2018), was removed from the Superior Court of California, County of Kern, to U.S. District Court for the Central District of California on April 30, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-03642 to the proceeding. The suit seeks to recover damages as a result of the Defendants' negligent failure to warn and the design defect of their talcum-based products. Johnson & Johnson designed, developed, manufactured, tested, packaged, promoted, marketed, advertised, distributed, labeled, and sold the products to consumers, and Imerys mined, extracted, sorted, milled, processed, treated, processed, formulated, packaged, sold, and shipped the talcum powder that comprises the products to Johnson & Johnson. Despite the mounting scientific and medical evidence regarding talc use and ovarian cancer development over the past several decades, none of the warnings on product labels or in other marketing informed users, or similarly situated individuals, that use of the Products in the genital area could lead to an increased risk of ovarian cancer. For example, the only warnings on the Baby Powder label are to "keep powder away from child's face to avoid inhalation, which can cause breathing problems," and to "avoid contact with eyes", the lawsuit says.[BN] Attorneys for the Plaintiff: Brian D. Chase, Esq. Tom G. Antunovich, Esq. BISNAR CHASE 1301 Dove Street, Suite 120 Newport Beach, CA 92660 Telephone: (949) 752-2999 Facsimile: (949) 752-2777 E-mail: chase@bisnarchase.com tanitenovich@bisnarchase.com JOHNSON & JOHNSON: Hagemann Suit Moved to C.D. California --------------------------------------------------------- NICOLE HAGEMANN; CATHY E. SWEENEY and JOHN SWEENEY; NANCY E. PANTALONE and STEPHEN PANTALONE; KIMBERLY THORNTON, Individually, and Successor-in-Interest to the Estate of LINDA SCHWABENLAND, Deceased, the Plaintiffs, vs. JOHNSON & JOHNSON, JOHNSON & JOHNSON CONSUMER INC. F/K/A JOHNSON & JOHNSON CONSUMER COMPANIES, INC., IMERYS TALC AMERICA, INC. F/K/A LUZENAC AMERICA, Inc., the Defendants, Case No. 16CV303989 (Filed Dec. 14, 2016), was removed from the Superior Court of California, County of Santa Clara, to U.S. District Court for the Central District of California on April 30, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-03678 to the proceeding. The suit seeks to recover damages as a result of the Defendants' negligent failure to warn and the design defect of their talcum-based products. Johnson & Johnson designed, developed, manufactured, tested, packaged, promoted, marketed, advertised, distributed, labeled, and sold the products to consumers, and Imerys mined, extracted, sorted, milled, processed, treated, processed, formulated, packaged, sold, and shipped the talcum powder that comprises the products to Johnson & Johnson. Despite the mounting scientific and medical evidence regarding talc use and ovarian cancer development over the past several decades, none of the warnings on product labels or in other marketing informed users, or similarly situated individuals, that use of the Products in the genital area could lead to an increased risk of ovarian cancer. For example, the only warnings on the Baby Powder label are to "keep powder away from child's face to avoid inhalation, which can cause breathing problems," and to "avoid contact with eyes", the lawsuit says.[BN] Attorneys for the Plaintiff: Curtis G. Hoke, Esq. THE MILLER FIRM, LLC 108 Railroad Ave. Orange, VA 22960 Telephone: (540) 672 4224 Facsimile: (540) 672 3055 E-mail: choke@millerfirmllc.com JOHNSON & JOHNSON: Love Suit Moved to C.D. California ----------------------------------------------------- ERIC LOVE, an individual and as Successor in Interest for JOELANE LOVE, the Plaintiff, vs. JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER INC. F/K/A JOHNSON & JOHNSON CONSUMER COMPANIES, INC.; IMERYS TALC AMERICA, INC.; and DOES 1 through 100, the Defendants, Case No. 17CV001192 (Oct. 18, 2017), was removed from the Superior Court of California, Alameda County, to U.S. District Court for the Central District of California on May 3, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-03854 to the proceeding. The suit seeks to recover damages as a result of the Defendants' negligent failure to warn and the design defect of their talcum-based products. Johnson & Johnson designed, developed, manufactured, tested, packaged, promoted, marketed, advertised, distributed, labeled, and sold the products to consumers, and Imerys mined, extracted, sorted, milled, processed, treated, processed, formulated, packaged, sold, and shipped the talcum powder that comprises the products to Johnson & Johnson. Despite the mounting scientific and medical evidence regarding talc use and ovarian cancer development over the past several decades, none of the warnings on product labels or in other marketing informed users, or similarly situated individuals, that use of the Products in the genital area could lead to an increased risk of ovarian cancer. For example, the only warnings on the Baby Powder label are to "keep powder away from child's face to avoid inhalation, which can cause breathing problems," and to "avoid contact with eyes", the lawsuit says.[BN] Attorneys for the Plaintiff: Mark P. Robinson, Jr., Esq. ROBINSON CALCAGNIE, INC, 19 Corporate Plaza Drive Newport Beach, CA 92660 Telephone: 949 720-1288 Facsimile: 949 720-1292 E-mail: mrobinson@robinsonfirm.com JOHNSON & JOHNSON: Myers Suit Moved to C.D. California ------------------------------------------------------ SYLVIA MYERS, Individually, and as Successor-in-Interest on behalf of the ESTATE OF NANCY E. MOORE, the Plaintiff, vs. JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER, INC. P/N/A JOHNSON & JOHNSON CONSUMER COMPANIES, INC.; and IMERYS TALC AMERICA, INC. F/K/A LUZENAC AMERICA, INC., the Defendants, Case No. 17CV321201 (Dec. 29, 2017), was removed from the Superior Court of California, County of Santa Clara, to U.S. District Court for the Central District of California on May 1, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-03738 to the proceeding. The suit seeks to recover damages as a result of the Defendants' negligent failure to warn and the design defect of their talcum-based products. Johnson & Johnson designed, developed, manufactured, tested, packaged, promoted, marketed, advertised, distributed, labeled, and sold the products to consumers, and Imerys mined, extracted, sorted, milled, processed, treated, processed, formulated, packaged, sold, and shipped the talcum powder that comprises the products to Johnson & Johnson. Despite the mounting scientific and medical evidence regarding talc use and ovarian cancer development over the past several decades, none of the warnings on product labels or in other marketing informed users, or similarly situated individuals, that use of the Products in the genital area could lead to an increased risk of ovarian cancer. For example, the only warnings on the Baby Powder label are to "keep powder away from child's face to avoid inhalation, which can cause breathing problems," and to "avoid contact with eyes", the lawsuit says.[BN] Attorneys for the Plaintiff: Curtis G. Hoke, Esq. THE MILLER FIRM, LLC 108 Railroad Ave. Orange, VA 22960 Telephone: (540) 672-4224 Facsimile: (540) 672-3055 E-mail: choke@millerfirmllc.com JOHNSON & JOHNSON: Newberry Suit Moved to C.D. California --------------------------------------------------------- BARBARA D. NEWBERRY, an individual, the Plaintiff, vs. JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER INC. F/K/A JOHNSON & JOHNSON CONSUMER COMPANIES, INC.; IMERYS TALC AMERICA, INC.; and DOES 1 through 100, the Defendants, Case No. CIVDS1725849 (Dec. 29, 2017), was removed from the Superior Court of California, County of San Bernadino, to U.S. District Court for the Central District of California on May 3, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-03853 to the proceeding. The suit seeks to recover damages as a result of the Defendants' negligent failure to warn and the design defect of their talcum-based products. Johnson & Johnson designed, developed, manufactured, tested, packaged, promoted, marketed, advertised, distributed, labeled, and sold the products to consumers, and Imerys mined, extracted, sorted, milled, processed, treated, processed, formulated, packaged, sold, and shipped the talcum powder that comprises the products to Johnson & Johnson. Despite the mounting scientific and medical evidence regarding talc use and ovarian cancer development over the past several decades, none of the warnings on product labels or in other marketing informed users, or similarly situated individuals, that use of the Products in the genital area could lead to an increased risk of ovarian cancer. For example, the only warnings on the Baby Powder label are to "keep powder away from child's face to avoid inhalation, which can cause breathing problems," and to "avoid contact with eyes", the lawsuit says.[BN] Attorneys for the Plaintiff: Michael L. Baum, Esq. Nicole Maldonado, Esq. Robert Brent Wisner, Esq. BAUM HEDLUND ARISTEI & GOLDMAN, P.C. 12100 Wilshire Blvd., Suite 950 Los Angeles, CA 90025 Telephone: (310) 207-3233 Facsimile: (310) 820-7444 E-mail: mbaum@bhlaw.us nmaldonado@bhlaw.us rbwisner@bhlaw.us JOHNSON & JOHNSON: Nickaloff Suit Moved to C.D. California ---------------------------------------------------------- RAYMOND M. NICKALOFF, JR.; CRYSTAL ERICKSON; and JULIA BROWN, Individually and as Successors-In-Interest of Decedent LANA MARIE NICKALOFF, the Plaintiffs, vs. JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER INC. F/K/A JOHNSON & JOHNSON CONSUMER COMPANIES, INC.; IMERYS TALC AMERICA, INC.; and DOES 1 through 100, the Defendants, Case No. HG17878348 (Oct. 10, 2017), was removed from the Superior Court of California, Alameda County, to U.S. District Court for the Central District of California on May 3, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-03852 to the proceeding. The suit seeks to recover damages as a result of the Defendants' negligent failure to warn and the design defect of their talcum-based products. Johnson & Johnson designed, developed, manufactured, tested, packaged, promoted, marketed, advertised, distributed, labeled, and sold the products to consumers, and Imerys mined, extracted, sorted, milled, processed, treated, processed, formulated, packaged, sold, and shipped the talcum powder that comprises the products to Johnson & Johnson. Despite the mounting scientific and medical evidence regarding talc use and ovarian cancer development over the past several decades, none of the warnings on product labels or in other marketing informed users, or similarly situated individuals, that use of the Products in the genital area could lead to an increased risk of ovarian cancer. For example, the only warnings on the Baby Powder label are to "keep powder away from child's face to avoid inhalation, which can cause breathing problems," and to "avoid contact with eyes", the lawsuit says.[BN] Attorneys for the Plaintiffs: Helen Zukin, Esq. Melanie Meneses Palmer, Esq. Cherisse H. Cleofe, Esq. KIESEL LAW LLP 8648 Wilshire Boulevard Beverly Hills, CA 90211-29 I 0 Telephone: 310 854 4444 Facsimile: 310 854 0812 E-mail: palmer@kiesel.law zukin@kiesel.law cleofe@lcieseLlaw - and - Raymond P. Boucher, Esq. Shehnaz Bhujwala, Esq. BOUCHER LLP 21600 Oxnard Street, Suite 600 Woodland Hills, CA 91367 Telephone: 818 340-5400 Facsimile: 818 340-5401 E-mail: ray@boucher.la bhujwala@boucher.la JOHNSON & JOHNSON: Removes Abbott Suit to C.D. California --------------------------------------------------------- Johnson & Johnson removed the case, DR. RICHARD ABBOTT, Individually and as Successor-In-Interest of the Estate of CECILIA ABBOTT, Deceased, the Plaintiff, vs. COLGATE-PALMOLIVE COMPANY; JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER INC., a subsidiary of JOHNSON & JOHNSON; and DOES 1-450, the Defendants, Case No. JCCP 4674 / BC691327, from the Superior Court of the State of California for the Los Angeles County, to U.S. District Court for the Central District of California on April 30, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-03681 to the proceeding. On February 13, 2019, Imerys Talc America, Inc., and two affiliates, Imerys Talc Vermont, Inc., and Imerys Talc Canada, Inc., filed a voluntary chapter 11 petition, commencing a reorganization case styled: In re: Imerys Talc America, Inc., et al., Case No. 19-10289-LSS, in the United States Bankruptcy Court for the District of Delaware. Since the Chapter 11 Case was commenced, the Debtors have remained as debtors in possession under 11 U.S.C. section 1101 and have the rights, powers, and duties set out in U.S.C. sections 1107 and 1108. The suit seeks to recover damages as a result of the Defendants' negligent failure to warn and the design defect of their talcum-based products. Johnson & Johnson designed, developed, manufactured, tested, packaged, promoted, marketed, advertised, distributed, labeled, and sold the products to consumers, and Imerys mined, extracted, sorted, milled, processed, treated, processed, formulated, packaged, sold, and shipped the talcum powder that comprises the products to Johnson & Johnson. Despite the mounting scientific and medical evidence regarding talc use and ovarian cancer development over the past several decades, none of the warnings on product labels or in other marketing informed users, or similarly situated individuals, that use of the Products in the genital area could lead to an increased risk of ovarian cancer. For example, the only warnings on the Baby Powder label are to "keep powder away from child's face to avoid inhalation, which can cause breathing problems," and to "avoid contact with eyes", the lawsuit says.[BN] Counsel for Johnson & Johnson and Johnson & Johnson Consumer, Inc.: Alexander G. Calfo, Esq. Julia E. Romano, Esq. Amy P. Zumsteg, Esq. KING & SPALDING LLP 633 West 5th Street, Suite 1600 Los Angeles, CA 90071 Telephone: 213 443 4355 Facsimile: 213 443 4310 E-mail: acalfo@kslaw.com jromano@kslaw.com azumsteg@kslaw.com JOHNSON & JOHNSON: Removes Lane Suit to N.D. California ------------------------------------------------------- Johnson & Johnson removed the case, ARDYS LANE, an individual, the Plaintiff, vs. ALBERTSONS COMPANIES INC., individually and as successor in interest to SAV-ON DRUG STORES, INC., et al., the Defendants, Case No. RG18915870, from the Superior Court of the State of California for the Alameda County, to U.S. District Court for the Northern District of California on April 30, 2019. The Northern District of California Court Clerk assigned Case No. 3:19-cv-2334 to the proceeding. On February 13, 2019, Imerys Talc America, Inc., and two affiliates, Imerys Talc Vermont, Inc., and Imerys Talc Canada, Inc., filed a voluntary chapter 11 petition, commencing a reorganization case styled: In re: Imerys Talc America, Inc., et al., Case No. 19-10289-LSS, in the United States Bankruptcy Court for the District of Delaware. Since the Chapter 11 Case was commenced, the Debtors have remained as debtors in possession under 11 U.S.C. section 1101 and have the rights, powers, and duties set out in U.S.C. sections 1107 and 1108. The suit seeks to recover damages as a result of the Defendants' negligent failure to warn and the design defect of their talcum-based products. Johnson & Johnson designed, developed, manufactured, tested, packaged, promoted, marketed, advertised, distributed, labeled, and sold the products to consumers, and Imerys mined, extracted, sorted, milled, processed, treated, processed, formulated, packaged, sold, and shipped the talcum powder that comprises the products to Johnson & Johnson. Despite the mounting scientific and medical evidence regarding talc use and ovarian cancer development over the past several decades, none of the warnings on product labels or in other marketing informed users, or similarly situated individuals, that use of the Products in the genital area could lead to an increased risk of ovarian cancer. For example, the only warnings on the Baby Powder label are to "keep powder away from child's face to avoid inhalation, which can cause breathing problems," and to "avoid contact with eyes", the lawsuit says.[BN] Counsel for Johnson & Johnson and Johnson & Johnson Consumer, Inc.: Alexander G. Calfo, Esq. Julia E. Romano, Esq. Amy P. Zumsteg, Esq. KING & SPALDING LLP 633 West 5th Street, Suite 1600 Los Angeles, CA 90071 Telephone: 213 443 4355 Facsimile: 213 443 4310 E-mail: acalfo@kslaw.com jromano@kslaw.com azumsteg@kslaw.com JOHNSON & JOHNSON: Removes Peoples Suit to C.D. California ---------------------------------------------------------- Johnson & Johnson removed the case, BARBARA PEOPLES, Individually and as Anticipated Representative of the Estate of JANET MASON, Deceased, GLEN MASON and JEFFREY MASON, the Plaintiffs, vs. AMCORD, INC. (sued individually and as successor-in-interest to RIVERSIDE CEMENT CO., et al., the Defendants, Case No. JCCP 4674 / BC687010, from the Superior Court of the State of California for the Los Angeles County, to U.S. District Court for the Central District of California on April 30, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-03684 to the proceeding. On February 13, 2019, Imerys Talc America, Inc., and two affiliates, Imerys Talc Vermont, Inc., and Imerys Talc Canada, Inc., filed a voluntary chapter 11 petition, commencing a reorganization case styled: In re: Imerys Talc America, Inc., et al., Case No. 19-10289-LSS, in the United States Bankruptcy Court for the District of Delaware. Since the Chapter 11 Case was commenced, the Debtors have remained as debtors in possession under 11 U.S.C. section 1101 and have the rights, powers, and duties set out in U.S.C. sections 1107 and 1108. The suit seeks to recover damages as a result of the Defendants' negligent failure to warn and the design defect of their talcum-based products. Johnson & Johnson designed, developed, manufactured, tested, packaged, promoted, marketed, advertised, distributed, labeled, and sold the products to consumers, and Imerys mined, extracted, sorted, milled, processed, treated, processed, formulated, packaged, sold, and shipped the talcum powder that comprises the products to Johnson & Johnson. Despite the mounting scientific and medical evidence regarding talc use and ovarian cancer development over the past several decades, none of the warnings on product labels or in other marketing informed users, or similarly situated individuals, that use of the Products in the genital area could lead to an increased risk of ovarian cancer. For example, the only warnings on the Baby Powder label are to "keep powder away from child's face to avoid inhalation, which can cause breathing problems," and to "avoid contact with eyes", the lawsuit says.[BN] Counsel for Johnson & Johnson and Johnson & Johnson Consumer, Inc.: Alexander G. Calfo, Esq. Julia E. Romano, Esq. Amy P. Zumsteg, Esq. KING & SPALDING LLP 633 West 5th Street, Suite 1600 Los Angeles, CA 90071 Telephone: 213 443 4355 Facsimile: 213 443 4310 E-mail: acalfo@kslaw.com jromano@kslaw.com azumsteg@kslaw.com JOHNSON & JOHNSON: Removes Schade Suit to C.D. California --------------------------------------------------------- Johnson & Johnson removed the case, NATASHA A. SCHADE, Individually and as Successor-in-interest to ERIKA M. REETZ, deceased; ERIKA M. CANTRELL; ALEXA M. MATTHIS, the Plaintiffs, vs. COTY, INC.; CYPRUS AMAX MINIERALS COMPANY, Individually and as Successor-in-interest to INTO TALC COMPANY, SIERRA TALC COMPANY, UNITED SIERRA DIVISION OF CYPRUS MINES, CYPRUS INDUSTRIAL MINERALS COMPANY and PAUL WOOD COMPANY; WHITTAKER, CLARK & DANIELS, INC., and DOES 1-100, the Defendants, Case No. JCCP 4674 / BC640850 (Filed Nov. 17, 2016), from the Superior Court of the State of California for the Los Angeles County, to U.S. District Court for the Central District of California on April 30, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-03662 to the proceeding. The suit seeks to recover damages as a result of the Defendants' negligent failure to warn and the design defect of their talcum-based products. Johnson & Johnson designed, developed, manufactured, tested, packaged, promoted, marketed, advertised, distributed, labeled, and sold the products to consumers, and Imerys mined, extracted, sorted, milled, processed, treated, processed, formulated, packaged, sold, and shipped the talcum powder that comprises the products to Johnson & Johnson. Despite the mounting scientific and medical evidence regarding talc use and ovarian cancer development over the past several decades, none of the warnings on product labels or in other marketing informed users, or similarly situated individuals, that use of the Products in the genital area could lead to an increased risk of ovarian cancer. For example, the only warnings on the Baby Powder label are to "keep powder away from child's face to avoid inhalation, which can cause breathing problems," and to "avoid contact with eyes", the lawsuit says.[BN] Counsel for Johnson & Johnson and Johnson & Johnson Consumer, Inc.: Alexander G. Calfo, Esq. Julia E. Romano, Esq. Amy P. Zumsteg, Esq. KING & SPALDING LLP 633 West 5th Street, Suite 1600 Los Angeles, CA 90071 Telephone: 213 443 4355 Facsimile: 213 443 4310 E-mail: acalfo@kslaw.com jromano@kslaw.com azumsteg@kslaw.com JOHNSON & JOHNSON: Tyson Suit Moved to C.D. California ------------------------------------------------------ ELIZABETH S. TYSON; DEBRA BLAIR; RITA S. YOUNG; SCOTT BRODY, Individually, and as Successor-In-Interest to the Estate of LISA RETTIG-BRODY, Deceased, the Plaintiff, vs. JOHNSON & JOHNSON, a New Jersey corporation doing business in California; JOHNSON & JOHNSON CONSUMER INC. F/K/A JOHNSON & JOHNSON CONSUMER COMPANIES, INC., a New Jersey corporation doing business in California; IMERYS TALC AMERICA, INC., a Delaware Corporation with its principal place of business in the State of California; and DOES 1 through 100, inclusive, the Defendants, Case No. 17CV304790 (Filed Jan. 1, 2017), was removed from the Superior Court of California, County of Santa Clara, to U.S. District Court for the Central District of California on April 29, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-03578 to the proceeding. The suit seeks to recover damages as a result of the Defendants' negligent failure to warn and the design defect of their talcum-based products. Johnson & Johnson designed, developed, manufactured, tested, packaged, promoted, marketed, advertised, distributed, labeled, and sold the products to consumers, and Imerys mined, extracted, sorted, milled, processed, treated, processed, formulated, packaged, sold, and shipped the talcum powder that comprises the products to Johnson & Johnson. Despite the mounting scientific and medical evidence regarding talc use and ovarian cancer development over the past several decades, none of the warnings on product labels or in other marketing informed users, or similarly situated individuals, that use of the Products in the genital area could lead to an increased risk of ovarian cancer. For example, the only warnings on the Baby Powder label are to "keep powder away from child's face to avoid inhalation, which can cause breathing problems," and to "avoid contact with eyes", the lawsuit says.[BN] Attorneys for the Plaintiff: Curtis G. Hoke, Esq. THE MILLER FIRM, LLC 108 Railroad Ave. Orange, VA 22960 Telephone: (540) 672 4224 Facsimile: (540) 672 3055 E-mail: choke@millerfirmllc.com JP MORGAN: Appeals Decision in McShannock Suit to Ninth Circuit --------------------------------------------------------------- Defendant JP Morgan Chase Bank, NA, filed an appeal from a Court ruling in the lawsuit entitled Susan McShannock, et al. v. JP Morgan Chase Bank NA, Case No. 3:18-cv-01873-EMC, in the U.S. District Court for the Northern District of California, San Francisco. The appellate case is captioned as Susan McShannock, et al. v. JP Morgan Chase Bank NA, Case No. 19-15899, in the United States Court of Appeals for the Ninth Circuit. As reported in the Class Action Reporter on April 2, 2019, Chase filed an appeal from a Court ruling in the lawsuit. That appellate case is styled Susan McShannock, et al. v. JP Morgan Chase Bank NA, Case No. 19-80030. Judge Edward M. Chen previously denied the Defendant's motion to dismiss and denied as moot its motion to stay. Plaintiffs Monica Chandler, McShannock, and Meky, filed suit against Chase on behalf of a putative class. The Plaintiffs assert claims under the California Unfair Competition Law ("UCL") based on Chase's alleged violation of a California law requiring mortgage lenders to pay interest to mortgagors on funds held in escrow accounts for residential mortgages. The Consolidated Class Action Complaint alleges that the Plaintiffs took out mortgage-secured loans from Washington Mutual Bank ("WaMu"), a federal savings bank, between 2005 and the end of 2007. When WaMu failed in 2008, its assets, including the Plaintiffs' mortgages, were acquired by Chase via the Federal Deposit Insurance Corp. ("FDIC"). The mortgage agreements at issue required the Plaintiffs to make payments into escrow accounts held by the lender, in order to cover any potential taxes and assessments, leasehold payments, and insurance premiums on the property. The Plaintiffs have each made payments into the escrow accounts as required, but have never received any interest on the escrow funds from Chase. The mortgage agreement contains a provision addressing interest on escrow accounts. The briefing schedule in the Appellate Case is set as follows: -- Transcript is due on June 24, 2019; -- Appellant JP Morgan Chase Bank NA's opening brief is due on August 5, 2019; -- Appellees Monica Chandler, Susan McShannock and Mohamed Meky's answering brief is due on September 5, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellees SUSAN MCSHANNOCK, as Executrix of the Estate of Patricia Blaskower, on behalf of the Estate of Patricia Blaskower and all others similarly situated; MONICA CHANDLER, as Trustee of the Chandler Family Trust, and all others similarly situated; and MOHAMED MEKY, and all others similarly situated, are represented by: Glenn A. Danas, Esq. ROBINS KAPLAN LLP 2049 Century Park East, Suite 3400 Los Angeles, CA 90067 Telephone: (310) 229-5410 E-mail: gdanas@robinskaplan.com - and - Michael Ram, Esq. ROBINS KAPLAN LLP 2440 W. El Camino Real, Suite 100 Mountain View, CA 94040 Telephone: (650) 784-4006 E-mail: mram@robinskaplan.com - and - Harold M. Jaffe, Esq. 11700 Dublin Boulevard, Suite 250 Dublin, CA 94568 Telephone: (510) 452-2610 Facsimile: (925) 587-1737 E-mail: hmjaffe@gmail.com Defendant-Appellant JP MORGAN CHASE BANK NA, doing business as Chase Bank, is represented by: Alexander J. Gershen, Esq. David C. Powell, Esq. MCGUIREWOODS LLP Two Embarcadero Center, Suite 1300 San Francisco, CA 94111 Telephone: (415) 844-9944 E-mail: agershen@mcguirewoods.com dpowell@mcguirewoods.com - and - Brian David Schmalzbach, Esq. MCGUIREWOODS LLP 800 East Canal Street Gateway Plaza Richmond, VA 23219-3916 Telephone: (804) 775-4746 E-mail: bschmalzbach@mcguirewoods.com JUST ENERGY: J. Collins' Suit Remanded to Calif. Superior Court --------------------------------------------------------------- The United States District Court for the Central District of California, Southern Division, issued an Order granting Plaintiffs' Motion to Remand in the case captioned JEREMY COLLINS and DANIEL EVANGELISTA, on behalf of themselves and other aggrieved employees, Plaintiffs, v. JUST ENERGY MARKETING CORP., JUST ENERGY SOLUTIONS, INC., and DOES 1 through 10, inclusive, Defendants. Case No. SACV 19-00601-CJC (SSx). (C.D. Cal.). Plaintiffs Jeremy Collins and Daniel Evangelista bring this representative action under the Private Attorneys General Act of 2004 (PAGA) against their purportedly joint former employers, Just Energy Marketing Corp. (JEMC) and Just Energy Solutions, Inc. (JES), asserting various wage and hour violations under the California Labor Code. A civil action brought in state court, but over which a federal court may exercise original jurisdiction, may be removed by the defendant to a federal district court The burden of establishing subject matter jurisdiction falls on the defendant, and the removal statute is strictly construed against removal jurisdiction. Here, the Defendants assert subject matter jurisdiction based on diversity jurisdiction. Diversity jurisdiction exists where the amount in controversy exceeds $75,000 and the citizenship of each plaintiff is different from that of each defendant. The Plaintiffs seek recovery for violations of the California Labor Code under PAGA. Under PAGA, current or former aggrieved employees are deputized to bring a civil action against any person to recover civil penalties for Labor Code violations. An aggrieved employee is any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed. Thus, Plaintiffs have standing to bring a PAGA claim only against their former or current employers. Although JEMC was Plaintiffs' employer in name, Plaintiffs allege that JEMC and JES operated as Plaintiffs' joint employers in practice. Under California law, an employer is any person or entity who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of an employee. The Defendants have not carried their burden of showing that Plaintiffs fail to state a cause of action against JES. The Plaintiffs allege that (1) JES controlled certain day-to-day operations of Just Energy's employees, including the employees' work hours, (2) that Plaintiffs and the class of employees they seek to represent were selling JES's products and services, and (3) that JEMC is simply the marketing arm for JES's sales efforts in California. The Defendants assert that this Court's prior ruling in a related action supports finding that JES is a sham defendant. In Evangelista v. Just Energy Marketing Corp., Daniel Evangelista, one of the named plaintiffs here, filed a putative class action against JEMC, JES, and other Just Energy affiliates, asserting various violations of the California Labor Code. The defendants in that case removed the action to this Court pursuant to the Class Action Fairness Act of 2005 (CAFA). The Court's denial of the motion to remand in Evangelista does not change the analysis here. In Evangelista, the Court found that the plaintiff had not met the local controversy exception under CAFA, to which no anti-removal presumption applies. The plaintiff had the burden of showing the allegations against JES formed a significant that is, important and notable basis of the allegations in that complaint. The issue here, by contrast, is whether Defendants have shown that there is no possibility that Plaintiffs have stated a claim as to JES. And the presumption here, by contrast, is against removal jurisdiction. Defendants have the burden of proving that Plaintiffs have obviously failed to state any theory of liability as to JES. This burden is high. For the reasons already stated, Defendants have failed to meet it. Because the fraudulent joinder exception to the diversity requirement does not apply, the parties in this action are not completely diverse. Accordingly, the Court lacks subject matter jurisdiction and the action must be remanded. Plaintiffs' motion to remand is granted. This action is hereby remanded to Orange County Superior Court. A full-text copy of the District Court's May 16, 2019 Order is available at https://tinyurl.com/y5x7j4mg from Leagle.com. Jeremy Collins, an individual, on behalf of themselves and other aggrieved employees & Daniel Evangelista, an individual, on behalf of themselves and other aggrieved employees, Plaintiffs, represented by Asha Dhillon -- adhillon@jonesbell.com -- Jones Bell Abbott Fleming and Fitzgerald LLP, Francisco Cabada -- cisco@cabadahameed.com -- Cabada and Hameed LLP, Sayema Javed Hameed -- sayema@cabadahameed.com -, Cabada and Hameed LLP, William M. Turner -- wmturner@jonesbell.com -- Jones Bell Abbott Fleming & Fitzgerald & Craig R. Bockman -- crbockman@jonesbell.com -- Jones Bell Abbott Fleming and Fitzgerald LLP. Just Energy Marketing Corp., a Delaware corporation & Just Energy Solutions, Inc., a California corporation, Defendants, represented by Edward H. Chyun -- echyun@littler.com -- Littler Mendelson PC, pro hac vice, Timothy S. Anderson -- tanderson@littler.com -- Littler Mendelson PC, pro hac vice & Rachael Sarah Lavi -- rlavi@littler.com -- Littler Mendelson PC. JVK OPERATIONS: Montiel-Flores Sues Over Unpaid Compensations ------------------------------------------------------------- KENIA MONTIEL-FLORES and ALMANELLY RIVERA ZUNIGA, individually and on behalf of all others similarly situated, Plaintiffs, v. JVK OPERATIONS LIMITED and VINOD SAMUEL, Defendants, Case No. 2:19-cv-03005 (E.D. N.Y., May 21, 2019) is an action seeking equitable and legal relief for Defendants' violations of the Fair Labor Standards Act of 1938 (the "FLSA") and the New York Labor Law (the "NYLL"). Plaintiffs regularly worked in excess of 40 hours per week, yet Defendants failed to compensate them at a rate of one and one-half times their regular hourly rates of pay for all hours worked in excess of 40 hours per week. The Defendants failed to pay Plaintiffs overtime compensation for all hours worked in excess of 40 hours per week. Moreover, Plaintiffs did not receive, with each wage payment, statements accurately listing their regular and overtime rates of pay, the number of regular and overtime hours worked, gross wages, deductions, and anything otherwise required by NYLL. The Defendants knew or should have known that their failure to pay Plaintiffs and similarly situated employees minimum wages and overtime compensation owed to them was a violation of the FLSA and NYLL and/or they acted in reckless disregard of the federal and state wage and hour laws, says the complaint. Plaintiffs Montiel-Flores and Zuniga worked as clothing sorters at JVK. JVK is a laundromat that provides dry cleaning and laundry services to hospitals and hotels in the Suffolk County area.[BN] The Plaintiffs are represented by: Adam Sackowitz, Esq. Katz Melinger PLLC 280 Madison Avenue, Suite 600 New York, NY 10016 Phone: (212) 460-0047 Facsimile: (212) 428-6811 Email: ajsackowitz@katzmelinger.com KAUFMAN COUNTY, TX: Sued Over High Property Appraisals ------------------------------------------------------ CBSDFW.COM reports that Forney Mayor Rick Wilson has filed a class action lawsuit against the Kaufman County Chief Appraiser Sarah Curtis on behalf of tens of thousands of property owners, many of whom who have just received devastating property appraisals, raising their property taxes hundreds, thousands and even tens of thousands of dollars, according to Mayor Wilson. "Kaufman County property owners are facing the possible loss of their businesses, loss of their homes and buyers are cancelling purchases as a result of this unprecedented and unconstitutional valuation upsurge," according to the lawsuit filed on May 1. The lawsuit states, "The District's flawed valuation methods resulted in 2019 appraised property values that exceed the appraised value required by law. The Chief Appraiser refuses to conduct reappraisal that complies with Texas constitutional and statutory mandates -- preferring, instead, to saddle property owners with the burden of doing what she was required to do by law in the first place." When asked for comment by CBS 11, the Kaufman County Appraiser's Office said, "We do not comment on pending litigation." [GN] KIRCHHOFF AUTOMOTIVE: Green Files Suit Over Time-Shaving Practices ------------------------------------------------------------------ JEFFREY GREEN, Individually, and on behalf of himself and others similarly situated, Plaintiff, v. KIRCHHOFF AUTOMOTIVE USA, INC., KIRCHHOFF AUTOMOTIVE MANCHESTER, INC., KIRCHHOFF AUTOMOTIVE DALLAS, INC., KIRCHHOFF AUTOMOTIVE WAVERLY, INC., KIRCHHOFF AUTOMOTIVE TECUMSEH, INC., and KIRCHHOFF AUTOMOTIVE LANSING, INC., Defendants, Case No. 2:19-cv-11471-DPH-APP (E.D. Tenn., May 20, 2019) is a collective action for violations of the Fair Labor Standards Act ("FLSA") brought on behalf of all current and former hourly-paid factory/production employees of Defendants within the United States for "off-the-clock" and "edited-out/shaved" unpaid straight time and overtime compensation against Defendants. The Defendants have had a common policy, practice and plan of inducing, expecting, and suffering and permitting Plaintiff and similarly situated hourly-paid factory/production employees to work "off-the-clock", during all relevant times herein. Plaintiff and similarly situated hourly-paid factory/production employees were expected, induced, and suffered and permitted, to perform work duties before being "clocked-in" to Defendants' timekeeping system prior to their scheduled starting times, without being compensated for such "off-the-clock" work during weekly pay periods, during all times material, says the complaint. Plaintiff Jeffrey Green was a resident of Tennessee and worked as an hourly-paid factory/production employee while employed by Defendant. Kirchhoff Automotive USA, Inc. is a subsidiary of Kirchhoff Automotive GmbH, a manufacturing group that owns 30 production plants worldwide with several of such plants in the United States.[BN] The Plaintiff is represented by: Gordon E. Jackson, Esq. J. Russ Bryant, Esq. Robert E. Turner, IV, Esq. JACKSON, SHIELDS, YEISER & HOLT 262 German Oak Drive Memphis, TN 38018 Phone: (901) 754-8001 Facsimile: (901) 754-8524 Email: gjackson@jsyc.com rbryant@jsyc.com rturner@jsyc.com KRYPTONITE ENERGY: Gordon Seeks Unpaid Minimum, Overtime Wages -------------------------------------------------------------- BRADFORD GORDON, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiff, v. KRYPTONITE ENERGY SERVICES, LLC and JODY KENNON Defendants, Case No. 2:19-cv-00594-AJS (W.D. Pa., May 20, 2019) seeks to recover unpaid wages and overtime compensation for Plaintiff and other similarly situated co-workers who work or have worked for Defendants under the Fair Labor Standards Act of 1938 ("FLSA"), the Ohio Minimum Fair Wage Standards ("OMFWSA"), of the Ohio Constitution, and the Pennsylvania Minimum Wage Act ("PMWA"). Consistent with Defendants' policy, pattern, and/or practice, Plaintiff and the Hourly Field Employees regularly worked in excess of 40 hours per workweek without being paid wages for all hours worked and without being paid overtime wages, in violation of the FLSA, Ohio law, and Pennsylvania law, asserts the complaint. The Defendants' failure to comply with the FLSA and Ohio and Pennsylvania state laws has caused Plaintiff and the Collective Members to suffer lost wages and interest therein, the complaint adds. Plaintiff was employed by Defendants, including from approximately early January 2018 until in and around August 2018. Kryptonite Energy Services is a Limited Liability Company with its principal place of business at 1174 Findlay Street, Washington, Pennsylvania 15301.[BN] The Plaintiff is represented by: D. Aaron Rihn, Esq. Robert Peirce & Associates, P.C. 707 Grant Street, Suite 2500 Pittsburgh, PA 15219-1918 Phone: 412-281-7229 Email: arihn@peircelaw.com - and - Nicholas A. Migliaccio, Esq. Jason S. Rathod, Esq. Migliaccio & Rathod LLP 412 H Street N.E., Suite 302 Washington, DC 20002 Phone: (202) 470-3520 LABORATORY CORP: Kawa Orthodontics Sues Over Unsolicited Facsimiles ------------------------------------------------------------------- Laboratory Corporation of America Holdings said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2019, that on April 22, 2019, it was served with a putative class action lawsuit styled, Kawa Orthodontics LLP, et al. v. Laboratory Corporation of America Holdings, et al., filed in the U.S. District Court for the Middle District of Florida. The lawsuit alleges that on or about February 6, 2019, the defendants violated the U.S. Telephone Consumer Protection Act (TCPA) by sending unsolicited facsimiles to Plaintiff and at least 40 other recipients without the recipients' prior express invitation or permission. The lawsuit seeks the greater of actual damages or the sum of US$0.0005 million for each violation, subject to trebling under the TCPA, and injunctive relief. The Company will vigorously defend the lawsuit. Laboratory Corporation of America Holdings operates as an independent clinical laboratory company worldwide. It operates through two segments, LabCorp Diagnostics and Covance Drug Development. The company was founded in 1971 and is headquartered in Burlington, North Carolina. LABORATORY CORP: Still Defends Feckley Class Suit over Commissions ------------------------------------------------------------------ Laboratory Corporation of America Holdings continues to face the putative class action lawsuit styled, Feckley v. Covance Inc., et al., according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2019. On December 20, 2018, the Company was served with a putative class action lawsuit, Feckley v. Covance Inc., et al., filed in the Superior Court of California, County of Orange. The complaint alleges that Covance Inc. violated the California Labor Code and California Business & Professions Code by failing to properly pay commissions to employees under a sales incentive compensation plan upon their termination of employment. The lawsuit seeks monetary damages, civil penalties, punitive damages, and recovery of attorney's fees and costs. On January 22, 2018, the case was removed to the U.S. District Court for the Central District of California. The Company will vigorously defend the lawsuit. Laboratory Corporation of America Holdings operates as an independent clinical laboratory company worldwide. It operates through two segments, LabCorp Diagnostics and Covance Drug Development. The company was founded in 1971 and is headquartered in Burlington, North Carolina. LABORATORY CORP: Still Defends Haro Suit over Labor Code Breaches ----------------------------------------------------------------- Laboratory Corporation of America Holdings is still facing a putative class action lawsuit entitled, Alma Haro v. Laboratory Corporation of America et al., according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2019. On September 21, 2018, the Company was served with a putative class action lawsuit, Alma Haro v. Laboratory Corporation of America, et al., which was filed in the Superior Court of California, County of Los Angeles. Plaintiff alleges that employees were not properly paid overtime compensation, minimum wages, meal and rest break premiums, did not receive compliant wage statements, and were not properly paid wages upon termination of employment. Plaintiff asserts these actions violate various Labor Code provisions and constitute an unfair competition practice under California law. The lawsuit seeks monetary damages, civil penalties, and recovery of attorney's fees and costs. The Company will vigorously defend the lawsuit. Laboratory Corporation of America Holdings operates as an independent clinical laboratory company worldwide. It operates through two segments, LabCorp Diagnostics and Covance Drug Development. The company was founded in 1971 and is headquartered in Burlington, North Carolina. LTD FINANCIAL: Certification of Class Sought in Norton Suit ----------------------------------------------------------- Troy Norton moves the Court to certify the class described in the complaint of the lawsuit titled TROY NORTON, Individually and on Behalf of All Others Similarly Situated v. LTD FINANCIAL SERVICES LP and LTD ACQUISITIONS LLC, Case No. 2:19-cv-00630 (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendants) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). 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, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff contends. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, 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 LVNV FUNDING: Arbitration Ruling in Williams-Hopkins Suit Affirmed ------------------------------------------------------------------ In the case, ROSA M. WILLIAMS-HOPKINS, on behalf of herself and those similarly situated, Plaintiff-Appellant, v. LVNV FUNDING, LLC, Defendant-Respondent, Case No. A-5325-17T2 (N.J. Super. App. Div.), the Superior Court of New Jersey, Appellate Division, affirmed the trial court's June 8, 2018 order compelling arbitration and dismissing the complaint with prejudice. Plaintiff Williams-Hopkins appeals from a June 8, 2018 order compelling arbitration and dismissing her complaint with prejudice. In 2003, the Plaintiff acquired a credit card from First Premier Bank. To be issued a credit card, she was required to sign a Credit Card Contract and Initial Disclosure Agreement, indicating her assent to the terms and conditions in the document. The Plaintiff did not deny signing the Agreement. Nor did she disavow her use of the credit card for three years before defaulting on her payment obligations. Defendant LVNV purchased the Plaintiff's credit card account debt from the Bank. The Plaintiff did not dispute that the Defendant purchased her debt related to the credit card. On Oct. 18, 2017, the Plaintiff commenced a class action lawsuit against the Defendant. The Defendant moved to dismiss her complaint and compel arbitration in accordance with the Agreement. After hearing the arguments of the counsel, the motion judge granted the Defendant's motion and dismissed the Plaintiff's complaint with prejudice. The judge concluded that the Plaintiff signed the Agreement and, consistent with the terms and conditions in the Agreement, her claims were required to be resolved through arbitration. On appeal, the Plaintiff argues the Defendant failed to prove it had a valid assignment of the Agreement from the Bank. Absent evidence of a valid assignment, she claims the Defendant cannot compel arbitration. The Court finds that the Agreement states any claim including, but not limited to the validity, enforceability or scope of the arbitration provision or the contract will be settled by binding arbitration. The Agreement applies to plaintiff and "any purchaser of a credit account. The Agreement also provides any claim will be adjudicated by an arbitrator. The United States Supreme Court has held a court may not decide an arbitrability question that the parties have delegated to an arbitrator. The Plaintiff's claim relates to the Bank's assignment of the Agreement to the Defendant. The issue, as well as other issues raised by the Plaintiff, must be submitted to arbitration in accordance with the terms of the Agreement. During oral argument before the panel, the Defendant conceded the arbitrator should determine whether the Bank assigned to the Defendant all rights under the Agreement, including the right to compel arbitration. While the Court affirms the order compelling arbitration of the Plaintiff's claims, the judge improvidently dismissed the Plaintiff's complaint with prejudice. The Uniform Arbitration Act provides for stays, rather than dismissals, of matters pending arbitration. Therefore, the Court remands the matter to the trial court to enter an amended order staying the action pending arbitration or, in the alternative, dismissing the complaint without prejudice. The Court affirmed as to compelling arbitration. It remanded for the entry of an amended order consistent with its Opinion. The Court does not retain jurisdiction. A full-text copy of the Court's April 26, 2019 Opinion is available at https://is.gd/ku6AtE from Leagle.com. Scott C. Borison, (Legg Law Firm, LLP), of the District of Columbia, Maryland, and California bars, admitted pro hac vice, argued the cause for appellant (Kim Law Firm, LLC, and Scott C. Borison, attorneys; Yongmoon Kim -- jhk@thekimlawfirm.com -- and Scott Borison, of counsel and on the briefs). Michael A. Iannucci -- iannucci@blankrome.com -- argued the cause for respondent (Blank Rome, LLP, attorneys; Michael A. Iannucci, on the brief). MARRIOTT INC: Davidson Named to Plaintiffs Steering Committee ------------------------------------------------------------- Amanda Bronstad, writing for Daily Business Review, reports that Boca Raton attorney Stuart Davidson has been named to the plaintiffs steering committee for financial institutions suing Marriott Inc. over its giant data breach. The Robbins Geller Rudman & Dowd partner is a veteran of breach class actions, serving on the executive committee in the Yahoo case that settled for $117.5 million and the team leading plaintiffs in more than 40 cases alleging security flaws in Intel Corp.'s microprocessor chips. U.S. District Judge Paul Grimm in Greenbelt, Maryland, appointed the leadership team after a hearing on April 29. A consumer class will be led by 14 lawyers, and others are in charge of the banking, shareholder and derivative shareholder groups. Davidson said by email on April 30 that he was grateful for the appointment. He is on the banking steering committee and will be the coordinating discovery counsel for the financial institution track to coordinate discovery with the other plaintiffs groups. "I am looking forward to getting this case to trial as swiftly as possible so that our clients and class members can obtain justice for the harm Marriott caused them," he said. Financial institutions claim they were harmed in a variety of ways, Davidson said. They had to cancel or reissue credit and debit cards affected by the breach, close affected accounts, issue refunds or credits for the cost of unauthorized transactions blamed on the breach and respond to a higher volume of cardholder complaints, confusion and concern. Rather than accepting proposed attorney slates to lead the plaintiffs case in the multidistrict litigation, Grimm used a mix-and-match approach when assembling the teams, picking and choosing attorneys from more than 30 applications submitted earlier in April. "The court's job is obviously to look out for the best interests of the class members," Davidson said. In this case, Grimm cherry-picked the attorneys. "Sometimes individual lawyers are put together in a way that the court feels is complimentary," the attorney said. "Luckily, nearly all of the lawyers often competing for a leadership appointment in MDLs in general, and data breach cases in particular, have worked very well with the other applicants in other cases, so no matter who the court selects, the plaintiffs' leadership is sure to be comprised of lawyers with exceptional talent and impeccable credentials." More than 80 lawsuits were filed over the breach announced last November by Marriott International Inc. The company initially said the personal data of 500 million guests at its Starwood Hotels and Resorts Worldwide properties was lost but later narrowed the count to fewer than 383 million. Three veteran data breach lawyers were named co-lead counsel for the consumer class: Andrew Friedman, a partner at Cohen Milstein Sellers & Toll in Washington; Amy Keller of Chicago's DiCello Levit; and James Pizzirusso, a partner at Hausfeld in Washington. Both Pizzirusso and Friedman were on the steering committees in the data breach cases against Equifax and Home Depot. Keller was co-lead counsel in Equifax, and Friedman was co-lead counsel in the Anthem data breach case that settled for $115 million. Grimm also appointed Labaton Sucharow in New York to lead the shareholder class actions and attorneys from The Brown Law Firm in Oyster Bay, New York, New York's Gainey McKenna & Egleston and Maryland's Thomas & Libowitz to lead the derivative shareholder cases. [GN] MATRIX WARRANTY: Geiger Suit Asserts TCPA Violation --------------------------------------------------- JASON GEIGER, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. MATRIX WARRANTY SOLUTIONS, INC., DOES, Defendants, Case No. 8:19-cv-00971 (C.D. Cal., May 21, 2019) is a Class Action Complaint for damages, injunctive relief, and any other available legal or equitable remedies, resulting from the illegal actions of Defendant in negligently and/or intentionally contacting Plaintiff on his cellular telephone, in violation of the Telephone Consumer Protection Act (TCPA), thereby invading Plaintiff's privacy. There are online complaints about Defendant's calling practices, including numerous complaints that Defendant placed unsolicited recorded message calls even to people who were on the National Do-Not Call Registry. Plaintiff did not have a business relationship with MATRIX. Plaintiff's telephone number was on the National Do-Not-Call Registry. Plaintiff was personally affected by Defendant's aforementioned conduct because Plaintiff was frustrated and annoyed that Defendant annoyed Plaintiff with an unwanted prerecorded voice message without his prior express consent, in an effort to solicit the purchase of Defendant's warranty products, says the complaint. Mr. Geiger is, and at all times relevant was, a citizen and resident of the State of California, County of Orange. Matrix Warranty Solutions, Inc. operates business under it's own name, as well as "Element Protection Plans", "Matrix Protection" and "everythingbreaks.com", among others.[BN] The Plaintiff is represented by: Alex S. Madar, Esq. MADAR LAW CORPORATION 14410 Via Venezia # 1404, San Diego, CA 92129-1666 Phone: (858) 299-5879 Fax: (619) 354-7281 Email: alex@madarlaw.net MCCALL SERVICE: Technicians Seeks Unpaid Overtime Wages ------------------------------------------------------- OSVALDO PADILLA and JUAN TORRES, on behalf of themselves and on behalf of all others similarly situated, Plaintiffs, v. MCCALL SERVICE, INC., Defendant, Case No. 8:19-cv-01232-CEH-SPF (M.D. Fla., May 20, 2019) is an action for damages under the Fair Labor Standards Act ("FLSA") for failure to pay overtime wages. Plaintiffs and the Class worked hours in excess of 40 hours within a work week for Defendant, and they were entitled to be compensated for these overtime hours at a rate equal to one and one-half times their individual regular hourly rates. However, the Defendant failed to pay Plaintiffs and Members of the Class an overtime premium for all of the overtime hours that they worked, in violation of the FLSA. The Defendant's actions were willful, and showed reckless disregard for the provisions of the FLSA, says the complaint. Plaintiffs worked for Defendant as pest control technicians. MCCALL SERVICE, INC. operates a residential pest control service business across the state of Florida with a location in Tampa, in Hillsborough County, Florida.[BN] The Plaintiffs are represented by: LUIS A. CABASSA, ESQ. Wenzel Fenton Cabassa, P.A. 1110 N. Florida Avenue, Suite 300 Tampa, FL 33602 Main Number: 813-224-0431 Direct Dial: (813) 379-2565 Facsimile: 813-229-8712 Email: lcabassa@wfclaw.com twells@wfclaw.com MDL 2047: Court Denies Krupnick's Bid for Immediate Fee Disbursal ----------------------------------------------------------------- The United States District Court for the Eastern District of Louisiana issued an Order and Reasons denying Krupnick Campbell's Motion for the Immediate Disbursement of Attorneys' Fees in the case captioned IN RE CHINESE-MANUFACTURED DRYWALL PRODUCTS LIABILITY LITIGATION, THIS DOCUMENT RELATES TO: ALL LOUISIANA AMORIN CASES, Section L (5). Civil Action MDL No. 2047. (E.D. La.). These homeowners began to file suit in various state and federal courts against homebuilders, developers, installers, realtors, brokers, suppliers, importers, exporters, distributors, and manufacturers who were involved with the Chinese drywall. The Plaintiffs' and the Defendants' Liaison counsel entered into a second settlement agreement addressing claims filed after December 9, 2011. Under the terms of the settlements, the claimants with KPT Chinese drywall were offered several options. As part of the Knauf remediation settlement, the Defendants also agreed to pay reasonable costs, including the cost of administering the program and an additional amount for attorneys' fees, which includes both the fees for contract counsel and those for common benefit counsel. The claimants having received their appropriate portion of the settlement funds, the Court endeavored to allocate attorneys' fees to contract counsel and common benefit counsel pursuant to Pre-Trial Order 28 (PTO 28). The Movant filed a motion seeking the immediate disbursement of attorneys' fees pursuant to the Court's Final Judgment. In its Motion, the Movant argues the Knauf Settlement Agreements made clear this Court would consider and rule upon the allocation of all attorneys' fees and that any right of appeal as to the Court's determination of attorneys' fee allocation was waived. The Movant contends that, pursuant to this language, to which no counsel nor individual the Plaintiff objected, the Appealing Parties have waived their ability to raise the allocation of any attorneys' fees on appeal. As a result, the Movant argues, by the very terms of the Settlement Agreements to which these Appealing Firms agreed and from which they have the opportunity to obtain any attorneys' fees, the Appealing Firms specifically waived any right to contest the allocation of attorneys' fees once determined by this Court. The Movant also argues that, even if the Appealing Parties did not waive their right to appeal based on the Settlement Agreements' waiver language, no party has sought a stay of the Court's final judgment, nor should a stay be issued. Therefore, the Movant contends, notwithstanding the Appealing Parties' appeal pending before the Fifth Circuit, this Court should disburse the funds to the parties immediately. In opposition, Anderson Kill, P.C. (Anderson) contends the immediate disbursement of all attorneys' fees to all counsel would result in great hardship to the Court and to all counsel should any of the several appeals be successful in any way and a clawback become necessary. Whether the Court Has the Authority to Order the Disbursal of the Funds The Movant asks the Court to immediately disburse the attorneys' fees awarded pursuant to the Court's February 5, 2019 Final Judgment. The Appealing Parties having appealed that Final Judgment, the Court first considers whether it has the authority to disburse the fees before considering the judiciousness of disbursing the fees prior to the Fifth Circuit's ruling on the pending appeals. Whether the Court Has the Authority to Distribute the Funds Notwithstanding Appeal In its brief, the Movant points to several cases in which the district court ordered the disbursal of attorneys' fees, despite an appeal having been lodged on the judgment allocating those fees. In this case, the judgment currently on appeal was issued on February 5, 2019. R. Doc. 22092. Thus, pursuant to Rule 62(a), the automatic stay on the Court's judgment allocating attorneys' fees was lifted on March 7, 2019. Since that time, no party has moved for an extension of the automatic stay, and neither has the Fifth Circuit ordered this Court's judgment be stayed pending the appeal. Whether Disbursal is Appropriate To obtain a stay pending appeal, the moving party must demonstrate: (1) that it is likely to succeed on the merits (2) that it would suffer irreparable injury if the stay were not granted (3) that granting the stay would not substantially harm the other parties and (4) that granting the stay would serve the public interest. First, although this Court has been divested of the authority to find the Appealing Parties have waived their right to appeal, the waiver language in the Settlement Agreements is clear. Moreover, this Court has undergone painstakingly careful procedures to allocate the fees and allowed for the parties' input at every turn. As a result, the Appealing Parties' likelihood of success on the merits is slim. Next, the Court notes Parker has moved the Court repeatedly to immediately disburse the fees. Moreover, Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm. Here, in the absence of a stay, the appealing parties would receive funds, just not the total amount of funds to which they believe they are entitled. Specifically, the Court ordered Parker receive a common benefit fee of $2,037,038.98 plus held costs and the remaining assessment for a total of $2,316,197.07; the Court ordered Anderson receive a common benefit fee of $111,388.91 plus held costs for a total of $132,016.48; the Court ordered Alters receive a common benefit fee of $177,577.00 plus a return of the remaining assessment for a total of $187,577.00. Receiving these funds can hardly be considered harmful. Third, although it cannot be considered irreparable, granting a stay would be highly inequitable to the other parties in this case. As Parker notes in its motion seeking disbursement of eighty-percent of the funds, making the attorneys in this case "wait any longer for at least some fee award [after ten years of litigation] would be grossly unfair. Alternative Relief Agreed to by the Parties In its reply, the Movant notes that all firms, including the Appealing Parties, agree that an eighty-percent disbursement in this case is appropriate. Parker filed its own Motion for Partial Disbursement of Fees Awarded seeking an Order disbursing eighty-percent of the total available attorneys' fees. In seeking or supporting relief from this Court in the form of immediate disbursement of attorneys' fees, albeit in the alternative or at differing amounts, all of those who have appealed concede the jurisdiction and authority of this Court to enter an order disbursing funds, notwithstanding their respective notices of appeal. Although the equities way in favor of disbursal and all parties agree that at least a limited disbursal is appropriate, the Court finds taking such an action would be imprudent. There are a significant number of attorneys and firms in this case, and in the admittedly unlikely event the Fifth Circuit reverses or alters this Court's fee disbursal order, a claw back of the distributed funds would prove disastrous, highly time consuming, and in some cases infeasible. Moreover, the cost of a claw back in that type of situation would be tremendous. Given this potential catastrophe, the Court will exercise its discretion to deny the motion. Accordingly, the Motion for the Immediate Disbursement of Attorneys' Fees filed by Krupnick Campbell is denied. A full-text copy of the District Court's May 16, 2019 Order and Reasons is available at https://tinyurl.com/y6tcmed9 from Leagle.com. Lynn C Greer, Special Master, pro se. Plaintiff, Plaintiff, represented by Russ M. Herman -- rherman@hhklawfirm.com -- Herman, Herman & Katz, LLC & Leonard A. Davis -- ldavis@hhklawfirm.com -- Herman, Herman & Katz, LLC. Homebuilders and Installers Steering Committee, Defendant, represented by Phillip A. Wittmann – pwittman@stonepigman.com -- Stone, Pigman, Walther, Wittmann, LLC. Insurer Steering Committee, Defendant, represented by Judy Y. Barrasso -- jbarrasso@barrassousdin.com -- Barrasso, Usdin, Kupperman, Freeman & Sarver, LLC. Defendant, Defendant, represented by Kerry James Miller , Fishman Haygood, LLP, 201 St. Charles Avenue, Suite 4600, New Orleans, LA 70170-4600 & Andrew J. Brien -- brien@carverdarden.com -- Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux. Defendant, Liaison Counsel for Taishan, BNMB entities, and CNBM entities, Defendant, represented by Harry Rosenberg -- harry.rosenberg@phelps.com -- Phelps Dunbar, LLP. MDL 2741: Perry v. Monsanto over Roundup Sales Consolidated ----------------------------------------------------------- BARBARA L. PERRY, the Plaintiff, v. MONSANTO COMPANY, the Defendant, Case No. 4:19-cv-00281 (Filed Feb. 21, 2019), was transferred from the U.S. District Court for the Eastern District of Missouri, to the U.S. District Court for the Northern District of California (San Francisco) on May 1, 2019. The Northern District of California Court Clerk assigned Case No. 3:19-cv-02366-V to the proceeding. The suit seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiff maintains that Roundup (TM) 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. the Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiff brings this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Perry case is being consolidated with MDL 2741 in re: Roundup Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 3, 2016. These actions share common factual questions arising out of allegations that Monsanto's Roundup herbicide, particularly its active ingredient, glyphosate, causes non-Hodgkin's lymphoma. The Plaintiff alleges that they or their decedents developed non-Hodgkin's lymphoma after using Roundup over the course of several or more years. Plaintiff also alleges that the use of glyphosate in conjunction with other ingredients, in particular the surfactant polyethoxylated tallow amine (POEA), renders Roundup even more toxic than glyphosate on its own. Issues concerning general causation, the background science, and regulatory history will be common to all actions. In its October 3, 2016 Order, the MDL Panel found that the actions in this MDL involve common questions of fact, and that centralization in the Northern District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings (including with respect to discovery, privilege, and Daubert motion practice); and conserve the resources of the parties, their counsel, and the judiciary. Presiding Judge in the MDL is Hon. Judge Vince Chhabria. The lead case is 3:16-md-02741-VC.[BN] The Plaintiff is represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MDL 2741: Yeager v. Monsanto over Roundup Sales Consolidated ------------------------------------------------------------ RAYMOND J. YEAGER, the Plaintiff, v. MONSANTO COMPANY, the Defendant, Case No. 4:19-cv-00286 (Filed Feb. 22, 2019), was transferred from the U.S. District Court for the Eastern District of Missouri, to the U.S. District Court for the Northern District of California (San Francisco) on May 1, 2019. The Northern District of California Court Clerk assigned Case No. 3:19-cv-02368-VC to the proceeding. The suit seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiff maintains that Roundup (TM) 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. Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiff brings this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Yeager case is being consolidated with MDL 2741 in re: Roundup Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 3, 2016. These actions share common factual questions arising out of allegations that Monsanto's Roundup herbicide, particularly its active ingredient, glyphosate, causes non-Hodgkin's lymphoma. The Plaintiff alleges that they or their decedents developed non-Hodgkin's lymphoma after using Roundup over the course of several or more years. Plaintiff also alleges that the use of glyphosate in conjunction with other ingredients, in particular the surfactant polyethoxylated tallow amine (POEA), renders Roundup even more toxic than glyphosate on its own. Issues concerning general causation, the background science, and regulatory history will be common to all actions. In its October 3, 2016 Order, the MDL Panel found that the actions in this MDL involve common questions of fact, and that centralization in the Northern District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings (including with respect to discovery, privilege, and Daubert motion practice); and conserve the resources of the parties, their counsel, and the judiciary. Presiding Judge in the MDL is Hon. Judge Vince Chhabria. The lead case is 3:16-md-02741-VC.[BN] The Plaintiff is represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MEDELY INC: Hensley Suit Alleges Labor Code Violation ----------------------------------------------------- Jean Hensley, on behalf of similarly situated members of the general public v. Medely, Inc., Does 1 through 20, inclusive, Case No. 19STCVl0238 (Cal. Super. Ct., Los Angeles Cty., March 26, 2019), is brought against the Defendants for violation of the California Labor Code under the Private Attorneys General Act of 2004. The Defendants violated PAGA by denying their employees, including the Plaintiff, meal and rest periods, reimbursements for business expenses, itemized wage statements, and timely payment of wages due upon separation of employment, notes the complaint. The Plaintiff performed services for the Defendants as a registered nurse and was classified by Defendants as an independent contractor. The Defendants are providers of healthcare staffing services with operations throughout the State of California. The Defendant Does 1 through 20 are/or were its partners, agents, owners, shareholders, managers or employees. [BN] The Plaintiff is represented by: Fawn F. Bekam, Esq. Kashif Haque, Esq. AEGIS LAW FIRM, PC 9811 Irvine Center Drive Suite 100 Irvine, CA 92618 Tel: (949) 379-6250 Fax: (949) 379-6251 MELLANOX TECHNOLOGIES: Faces Class Action Over Nvidia Acquisition ----------------------------------------------------------------- Shiri Habib-Valdhorn, writing for Globes, reports that a shareholder in Israeli big data connectivity chipmaker Mellanox Technologies Ltd. (Nasdaq:MLNX) has filed a proposed class action in a California federal court seeking to block the company's impending $7.36 billion acquisition by Nvidia Corp., US legal website Law360 reports. The plaintiff, Marc Henzel, claims that Mellanox violated several federal laws because it did not give enough details to the US Securities and Exchange Commission (SEC) about the deal to be acquired by Nvidia. In particular, he cites that investment bank JP Morgan, which was Mellanox's financial advisor in the deal, did not provide data about Mellanox's rate vof growth as part of its analysis about the transaction. Law360 quotes Henzel, "When a bank presents an analysis on the fairness of a deal to shareholders, it must present the methodology of the value and the main figures that it used for the analysis." The plaintiff is demanding that the deal be halted until a report is published that will include up to date analyses. Nvidia is expected to complete the acquisition of Mellanox for $125 per share by the end of the year. Mellanox declined to comment on the matter. [GN] MELLANOX TECHNOLOGIES: Stein Balks at Merger Deal with NVDIA ------------------------------------------------------------ LEWIS STEIN, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, vs. MELLANOX TECHNOLOGIES, LTD., IRWIN FEDERMAN, JON A. OLSON, GLENDA DORCHAK, AMAL M. JOHNSON, JACK R. LAZAR, UMESH PADVAL, DAVID PERLMUTTER, STEVE SANGHI, EYAL WALDMAN, and GREGORY L. WATERS, NVIDIA INTERNATIONAL HOLDINGS INC., TEAL BARVAZ LTD., AND NVIDIA CORPORATION, the Defendants, Case No. 3:19-cv-02428 (N.D. Cal., May 3, 2019), is a class action brought by Plaintiff on behalf of himself and all other similarly situated public shareholders of Mellanox Technologies, LTD. against the Defendants, including Mellanox and the members of the Company's board of directors, for violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934, and United States Securities and Exchange Commission, in connection with the proposed acquisition of Mellanox by NVDIA International Holdings Inc. On March 10, 2019, Mellanox, NVDIA International Holdings Inc., Teal 15 Barvaz Ltd., and NVDIA Corporation entered into an Agreement and Plan of Merger. Pursuant to the Merger Agreement (i) the Merger Sub will merge with and into Mellanox with Mellanox surviving the merger and (ii) following this merger Mellanox will be a wholly owned subsidiary of Parent (the Proposed Transaction). On April 22, 2019 in order to convince the Company's public common shareholders to vote in favor of the Proposed Transaction, Mellanox filed a materially incomplete and misleading Preliminary Proxy Statement on Form PREM 14A with the SEC, in violation of Sections 14(a) and 20(a) of the Exchange Act. According to the complaint, the Proxy contains materially incomplete and misleading information concerning: (i) the valuation analyses prepared by the Company's financial advisors, J.P. Morgan Securities LLC and Credit Suisse Securities (USA) LLC's, in support of its fairness opinion. Additionally, although the Proxy does not yet set the date for the special meeting of Mellanox's shareholders to vote on the Proposed Transaction, their joint press release does state the merger parties' intention to conclude this merger by the end of the calendar year of 2019. It is therefore imperative that the material information that has been omitted from the Proxy is disclosed prior to the Stockholder Vote so Mellanox shareholders can properly exercise their corporate suffrage rights. The Defendants were obligated to carefully review the Proxy before it was filed with the SEC and disseminated to the Company's shareholders to ensure that it did not contain any material misrepresentations or omissions. The Proxy describes the fairness opinion of the Company's financial advisor, J.P. Morgan, and the various valuation analyses it performed in support of its opinion. However, the description of J.P. Morgan's fairness opinion and analyses fails to include key inputs and assumptions underlying these analyses. Without this information, the Company's shareholders are unable to fully understand these analyses and, thus, are unable to determine what weight, if any, to place on J.P. Morgan's fairness opinion in determining whether to vote their shares in favor of the Proposed Transaction. This omitted information, if disclosed, would significantly alter the total mix of information available to the Company's common shareholders.[BN] Counsel for the Plaintiff: Jon A. Tostrud, Esq. TOSTRUD LAW GROUP, P.C. 1925 Century Park East, Ste. 2100 Los Angeles, CA. 90067 Telephone: (310) 278-2600 Facsimile: (310) 278-2640 E-mail: jtostrud@tostrudlaw.com - and - Thomas J. McKenna, Esq. Gregory M. Egleston, Esq. GAINEY McKENNA & EGLESTON 440 Park Avenue South, 5th Floor New York, NY 10016 Telephone: (212) 983-1300 Facsimile: (212) 983-0383 E-mail: tjmckenna@gme-law.com gegleston@gme-law.com MERCY HOSPITAL: Loses Bid to Dismiss Minors' Tort Claims -------------------------------------------------------- The United States District Court for the Western District of Missouri, Western Division, issued an Order granting in part Defendant's motion for judgment on the pleadings in the case captioned K.A., BY AND THROUGH HER NEXT FRIEND B.W. INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; Plaintiff, v. CHILDREN'S MERCY HOSPITAL, Defendant. Case No. 4:18-00514-CV-RK. (W.D. Mo.). Plaintiff K.A., a minor, by her next friend and mother, B.W., brings this putative class action for damages against Defendant Children's Mercy Hospital. Plaintiff then filed suit in Missouri state court on behalf of a putative class asserting the following claims against Defendant: violation of Missouri's Merchandising Practices Act (MMPA) (Count I), breach of fiduciary duty (Count II), breach of contract (Count III), negligent training, hiring, and supervision (Count IV), and negligence (Count V). In this case, the issue implicated by the parties' briefs is whether Plaintiff suffered an injury in fact. A plaintiff who has produced facts indicating it was a party to a breached contract' has a judicially cognizable interest for standing purposes, regardless of the merits of the breach alleged. Here, in accordance with Eighth Circuit case law, Plaintiff's allegations are sufficient to confer Article III standing regarding her breach of contract claim. Plaintiff alleged that Defendant's notice constitutes an agreement with its patients. Plaintiff alleged that Defendant breached its agreement with Plaintiff when it failed to implement security measures to fulfill its agreement, which resulted in Plaintiff suffering the diminished value of her bargain. Although the allegations contained in the Complaint are broad and conclusory, facts establishing the legal conclusion of a valid, enforceable contract are not required to assert standing in a breach-of-contract claim. The Court further concludes that Plaintiff has standing to bring her other claims. As to the claim brought under the MMPA, the statute provides a private right of action to any person who sustains ascertainable loss in connection with the purchase or lease of merchandise as a result of certain practices declared unlawful. Here, Plaintiff alleges she overpaid for health care services from Defendant due to the inadequate protection of her medical records, and she therefore has standing to bring her claim under the MMPA. The Court now turns to the instant motion for judgment on the pleadings. Breach of Contract Claim (Count III) A breach of contract action includes the following essential elements: (1) the existence and terms of a contract; (2) that plaintiff performed or tendered performance pursuant to the contract (3) breach of the contract by the defendant and (4) damages suffered by the plaintiff. The Defendant argues that the Plaintiff's breach of contract claim fails because the Plaintiff fails to plausibly allege the existence of a contract. The Plaintiff alleges, in conclusory fashion, that the online notice of privacy practices posted on Defendant's website constitutes a contract between her and Defendant. The Plaintiff pleads no facts to show that statements in the notice created a contractual relationship. The Plaintiff pleads no facts to show offer, acceptance, or consideration. Apart from the notice, Plaintiff does not attach or plead the existence of a contract. The Plaintiff fails to allege facts from which the Court can reasonably infer the existence of a contract between Plaintiff and Defendant. In responding to the Defendant's motion, the Plaintiff asserts that a contract was formed when Plaintiff submitted patient data to the Defendant, but fails to provide authority or discussion of the required contract elements to support this position. Accepting the well-pled allegations as true and viewing them in Plaintiff's favor, Plaintiff fails to plausibly allege the existence of a contract between Plaintiff and Defendant. MMPA Claim (Count I) The MMPA provides a private right of action to any person who sustains ascertainable loss in connection with the purchase or lease of merchandise as a result of certain practices declared unlawful. The MMPA requires plaintiffs to prove that they suffered an ascertainable loss of money or property as a result of an act declared unlawful under RSMo. Defendant raises two arguments for why Plaintiff's MMPA claim fails: (1) because Plaintiff fails to plausibly allege an ascertainable pecuniary loss, and (2) because Plaintiff fails connect any such loss to an actionable misrepresentation or practice. Neither argument is sufficiently supported. First, to determine whether a plaintiff has suffered an ascertainable loss, Missouri courts apply the benefit-of-the-bargain rule. Under the benefit of the bargain rule as applied to MMPA claims, a plaintiff can recover damages for the difference between the actual value of the property and what its value would have been if it had been as represented.. Here, Plaintiff alleges that Defendant's privacy practices posted on its website stated that efforts to maintain the privacy and confidentiality of medical records are part of the healthcare services and that as a result of Defendant's unlawful practices, she suffered by paying more for of state laws, the door to federal court is not available in lawsuits where the plaintiff does not have Article III standing. medical record privacy protections than she otherwise would have and by paying for medical record privacy protections that she did not receive. Accepting the wellpled allegations as true and viewing them in Plaintiff's favor, as it must, the Court finds that Plaintiff has plausibly alleged an ascertainable loss. The Defendant also argues that the Plaintiff's MMPA claim fails because the Plaintiff has not connected a pecuniary loss to any actionable practice. Based on the authority and discussion presented, Defendant does not persuasively support this argument. Therefore, the Defendant's motion to dismiss Count I is denied. Common Law Tort Claims (Counts II, IV, and V) Any action for negligence requires the plaintiff to establish that the plaintiff's injury was proximately caused by the defendant's failure. Defendant argues that Plaintiff's tort claims fail because Plaintiff has not alleged a compensable injury under Missouri law for two reasons. First, Defendant argues that Plaintiff's damages theory of heightened future risk of identity theft fails as a matter of law. This argument is now moot because the argument is merits-based, however, the Court has determined that the Complaint's allegations of heightened risk of identity theft are insufficient to confer standing on Plaintiff. See supra note 3. Therefore, Plaintiff cannot pursue this relief. Second, Defendant argues that Plaintiff's damages theory of lost benefit of the bargain is barred by Missouri's economic loss doctrine. However, Defendant's economic loss doctrine argument is inapplicable because as determined above in section II.B, Plaintiff has not plausibly pled a breach of contract claim. The Court notes that were the economic loss doctrine to apply, Defendant does not address the exception to the economic loss doctrine relied on by Plaintiff. Moreover, regarding Plaintiff's tort claims, Plaintiff has also pleaded that she has suffered other damages including embarrassment, humiliation, and loss of enjoyment of life. Defendant does not address or challenge these alleged damages. Therefore, Defendant's motion to dismiss Plaintiff's tort claims in Counts II, IV, and V is denied. The Defendant's motion for judgment on the pleadings is therefore granted in part. The Court concludes that Plaintiff's Complaint fails to state a claim for breach of contract in Count III. Plaintiff may file a motion for leave to amend the Complaint that complies with Local Rule 15.1 within thirty days from the date of this Order. If Plaintiff cannot cure the deficiencies in Count III by an amended complaint, Count III will be dismissed. A full-text copy of the District Court's May 16, 2019 Order is available at https://tinyurl.com/yyvwmbmz from Leagle.com. K.A., by and through her Next Friend B.W. individually and on behalf of all others similarly situated, Plaintiff, represented by Anne W. Schiavone, Holman Schiavone, LLC, 4600 Madison Avenue, Suite 810, Kansas City, MO 64112, Lucy McShane, McShane & Brady LLC, Maureen M. Brady, McShane & Brady LLC, 1656 Washington St Suite 120, Kansas City, MO 64108, Brandon L. Corl, Holman Schiavone, LLC & Wade A. Schilling, Holman Schiavone, LLC, 4600 Madison AvenueSuite 810Kansas City, MO 64112 Children's Mercy Hospital, Defendant, represented by Casie D. Collignon -- ccollignon@bakerlaw.com -- Baker & Hostetler LLP, pro hac vice, Matthew C. Baisley -- mbaisley@bakerlaw.com -- Baker & Hostetler LLP, pro hac vice, Michael Thomas Raupp -- michael.raupp@huschblackwell.com -- Husch Blackwell LLP & Martin M. Loring -- martin.loring@huschblackwell.com -- Husch Blackwell LLP. MID-AMERICA APARTMENT: Appeal from Class Status in "Cleven" Pending ------------------------------------------------------------------- Mid-America Apartment Communities, Inc. is awaiting the review of the Fifth Circuit Court of Appeals over the District Court's order granting class certification in the Cleven and Cleven lawsuit, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2019. The Company also said that it intends to appeal the District Court's order granting plaintiff's motion for summary judgment to the Fifth Circuit if permission to appeal is granted. In June 2016, plaintiffs Cathi Cleven and Tara Cleven, on behalf of a purported class of plaintiffs, filed a complaint against MAA and the Operating Partnership in the United States District Court for the Western District of Texas, Austin Division. In January 2017, Areli Arellano and Joe L. Martinez joined the lawsuit as additional plaintiffs. The lawsuit alleges that the Company (but not Post Properties) charged late fees at its Texas properties that violate Section 92.019 of the Texas Property Code, or Section 92.019, which provides that a landlord may not charge a tenant a late fee for failing to pay rent unless, among other things, the fee is a reasonable estimate of uncertain damages to the landlord that are incapable of precise calculation and result from the late payment of rent. The plaintiffs are seeking monetary damages and attorneys' fees and costs. In September 2018, the District Court certified a class proposed by the plaintiffs. Additionally, in September 2018, the District Court denied the Company's motion for summary judgment and granted the plaintiffs' motion for partial summary judgment. Because the District Court certified a class prior to granting the plaintiffs' motion for partial summary judgment, the District Court's ruling applies to the entire class. In October 2018, the Fifth Circuit Court of Appeals accepted the Company's petition to review the District Court's order granting class certification. The Company said, "We intend to appeal the District Court's order granting plaintiff's motion for summary judgment to the Fifth Circuit Court of Appeals if permission to appeal is granted. We will continue to vigorously defend the action and pursue such appeals." MIDLAND CREDIT: Court OKs Renewed Arbitration Bid in J. Lance Suit ------------------------------------------------------------------ The United States District Court for the Eastern District of Pennsylvania issued an Memorandum granting Defendant's Renewed Motion to Compel Individual Arbitration in the case captioned JACOB LANCE, v. MIDLAND CREDIT MANAGEMENT INC., et al. Civil Action No. 18-4933. (E.D. Pa.). Jacob Lance opened a CareCredit Card account with Synchrony Bank on December 12, 20161 by signing a CareCredit Card Account Agreement (Credit Card Agreement). Mr. Lance used the account for purchases but did not make payments. The Credit Card Agreement contains three provisions material to the motion to compel arbitration: (1) an assignment clause (2) an arbitration clause and (3) a class action waiver. Synchrony Bank and Midland Funding LLC signed a Forward Flow Accounts Purchase Agreement (Purchase Agreement). The parties represented Synchrony Bank desires to sell to Midland Funding, during the Transfer period, delinquent charged-off credit card Accounts, on the terms and conditions herein set forth, as such Accounts exist as of the applicable Cut-Off Date. Midland renewed its motion to compel individual arbitration and stay our further progress. Midland argues Section 2.1 of the Purchase Agreement shows it bought all right to Mr. Lance's Account, which we know is a charged-off credit card account owned by Synchrony Bank and sold to Midland under the terms of the Purchase Agreement. Midland argues all means all and when Synchrony Bank sold Mr. Lance's Account to Midland, it sold all rights, including the right to arbitration in the Credit Card Agreement. In response, Mr. Lance argues Midland fails to show it acquired the right to arbitrate. He contends Section 2.1 of the Purchase Agreement particularly the language Midland shall buy all right including the right to legally enforce, file suit, collect, settle or take any similar action with respect to such account, title and interest in and to the Accounts identified in a Notification File shows only Midland bought the Account not the rights under the Credit Card Agreement including the arbitration clause. The Court concludes under the plain language of the Purchase Agreement Midland bought all rights to Mr. Lance's Account which includes the right to arbitration, Mr. Lance's Fair Debt Collection Practices Act claim is within the scope of the arbitration clause, and Midland did not waive its right to compel arbitration as it purchased. The Court applies a Rule 56 standard The Court applied a Rule 12(b)(6) standard to Midland's first motion to compel arbitration. The Court denied the motion and, anticipating Midland may renew its efforts to compel arbitration and the parties' possible need to explore the terms of the assignment between Synchrony Bank and Midland, the Court extended filing deadlines on Phase I motions for summary judgment on Mr. Lance's claims or for class certification. Midland purchased Synchrony Bank's right to arbitrate and Mr. Lance's claims are within the scope of the arbitration clause There is no genuine issue of fact regarding Midland's purchase of Synchrony Bank's right to arbitration. In opposition to Midland's first motion to compel arbitration, Mr. Lance argued he did not agree to arbitrate with Midland and Synchrony Bank did not assign its right to arbitration to Midland. He argued there is no evidence Midland assumed all rights under the Credit Card Agreement, including the right to arbitration. Midland argues the plain language of the Purchase Agreement shows by buying all right, title and interest in and to the Accounts, including Mr. Lance's Account, it acquired all rights ,including the right to arbitration, held by Synchrony Bank. It focuses on all right, arguing the Court must give effect to this clear and unambiguous language. Midland points out there is no exclusion or words of limitation creating any ambiguity as to what it bought from Synchrony Bank; it bought all right in Mr. Lance's Account, not just the receivables or the right to collect receivables. The court focused on the language of the agreement providing separate definitions for Account and Receivable to find while the agreement passed the Receivables' and associated rights it did not transfer all of the rights associated with Plaintiff's account to Midland. Here, the Purchase Agreement between Synchrony Bank and Midland Funding does not have separate definitions for Account and Receivable. Mr. Lance now argues Midland demonstrates it bought only the account but not the Credit Card Agreement and all the rights associated with it. He points the distinction between the account and the rights associated with his Credit Card Agreement with Synchrony Bank is found in the Agreement itself. He argues the assignment clause provision we may sell, assign or transfer any or all of our rights or duties under this Agreement or your account shows Synchrony Bank separated the rights under the Credit Card Agreement including arbitration from the rights to the account and there is no language in the Purchase Agreement transferring any rights created by the Credit Card Agreement, only the rights associated with the collection Account. The Court concludes there is no genuine issue of fact Midland bought Synchrony Bank's right to arbitration and will grant Midland's motion to compel individual arbitration and stay the matter pending arbitration. Mr. Lance does not address the class action waiver also contained in the Credit Card Agreement. Mr. Lance agreed not to participate in a class, representative or private attorney general action against us in court or arbitration and agreed he may not bring claims against us on behalf of any accountholder who is not an accountholder on your account. There is no genuine issue of fact on the class action waiver and the Court will compel Mr. Lance to individual arbitration. There is no genuine issue of fact Mr. Lance's claims are within the scope of the arbitration clause. The Court grants Midland's renewed motion to compel individual arbitration and stay of the action pending arbitration in the accompanying order. A full-text copy of the District Court's May 16, 2019 Memorandum is available at https://tinyurl.com/y6r6f7zq from Leagle.com. JACOB LANCE, INDIVIDUALLY, AND ON BEHALF ALL OTHER SIMILARLY SITUATED CONSUMERS, Plaintiff, represented by DANIEL ZEMEL, ZEMEL LAW LLC, ELIZABETH EASLEY APOSTOLA, ZEMEL LAW LLC & NICHOLAS J. LINKER, ZEMEL LAW LLC, 70 Clinton Avenue, Newark, NJ 07114- 2012. MIDLAND CREDIT MANAGEMENT INC. & MIDLAND FUNDING LLC, Defendants, represented by LAUREN M. BURNETTE -- lburnette@messerstrickler.com -- MESSER STRICKLER LTD & DAVID MARC SCHWADRON -- dschwadron@messerstrickler.com -- MESSER STRICKLER, LTD. MIZUHO BANK: Lack's Class Cert. Bid Denied ------------------------------------------ The Honorable R. Gary Klausner denies the Plaintiff's Motion for Class Certification in the lawsuit entitled Joseph Lack v. Mizuho Bank, Ltd., et al., Case No. 2:18-cv-00617-RGK-GJS (C.D. Cal.). Judge Klausner opines that the Plaintiff has failed to show that common questions will predominate in resolving his claim as a class action. Because both predominance and superiority are required under Rule 23(b)(3) of the Federal Rules of Civil Procedure, the Court need not consider whether the Plaintiff has met the second "superiority" requirement, Judge Klausner notes. Accordingly, the Court finds that the Plaintiff has failed to meet his burden under Rule 23(b)(3). Moreover, because the Court finds that the Plaintiff has failed to satisfy Rule 23(b)(3)'s requirements, the Plaintiff's Motion fails on this ground alone, according to the Court's Civil Minutes. The Court, thus, need not address whether the Plaintiff has satisfied Rule 23(a)'s requirements. On January 24, 2018, Joseph Lack filed a putative class action Complaint on behalf of himself and others similarly situated against Mizuho Bank and Mark Karpeles. In the Complaint, the Plaintiff alleges claims arising out of the 2014 collapse of the Mt. Gox Bitcoin exchange. On June 19, 2018, the Court dismissed the Plaintiffs claim against Mizuho for unjust enrichment. The Plaintiff's remaining claim against Mizuho alleges fraudulent concealment under California common law. Additionally, the Plaintiff alleges negligence and fraud against Karpeles. The Plaintiff seeks to ultimately certify two classes: (1) the Mt. Gox Class, encompassing all U.S. consumers who had Bitcoins or fiat currency stored with Mt. Gox on the day the exchange went dark, and (2) the Deposit Subclass, encompassing all members of the Mt. Gox Class who made a deposit to Mizuho's Mt. Gox account after Mizuho stopped processing withdrawals. However, the Plaintiff seeks to certify only the Deposit Subclass in the instant Motion. The Deposit Subclass is defined as follows: "All California residents who wired money to Mt. Gox KK's bank account at Mizuho Bank, Ltd., between June 20, 2013 and February 24, 2014."[CC] MONDELEZ INTERNATIONAL: Harper Files False Labeling Suit in Calif. ------------------------------------------------------------------ RUBEN HARPER, on behalf of herself and all others similarly situated, Plaintiffs, v. MONDELEZ INTERNATIONAL, INC.; MONDELEZ GLOBAL LLC; and DOES 1 through 10, Inclusive, Defendants, Case No. 3:19-cv-02747 (N.D. Cal., May 20, 2019) gives rise to a nationwide class claims for fraud, unjust enrichment and breach of express warranty due to Defendants' representations that are false, misleading, unfair, unlawful, and are likely to deceive members of the public. MONDELEZ manufactures, distributes, and packages several brands, including, but not limited to Oreo, Cadbury, Chips Ahoy, and Trident. On its website, MONDELEZ states that "people don't want to have to choose between snacking and eating right" and its products are "made the right way," indicating that it exudes transparency in representations on its labeling and statements it makes on its packaging to its consumers. Consistent with Defendants' self-promotion as a leader in snack foods, the front of the packaging of the Products state in prominent, lettering that contains "ALWAYS MADE WITH REAL COCOA" and "REAL COCOA." To reinforce the message that the Products contain 'REAL COCOA' MONDELEZ uses imagery and coloring on the front packaging, including the use of smaller font for other words, "MADE WITH" to ensure its consumers know Oreo's are made with "REAL COCOA." However, Defendants' representations that the Oreo Products are made with "REAL COCOA" are false, misleading, and deceptive. This labeling deceives consumers into believing that they are eating products with "REAL COCOA," but Defendants' Products do not live up to these claims. Contrary to the labeling, it is alleged that each of the Products is not made with 'REAL COCOA,' but instead is processed with alkali. The Defendants' practices violate California's Consumer Legal Remedies Act ("CLRA"), California's Unfair Competition Law ("UCL"), California's False Advertising Law, ("FAL"), says the complaint. Plaintiff Mr. Harper made several purchases of the Products from various stores in and near San Francisco County and San Joaquin County, California. Mondelez International, Inc. and Mondelez Global LLC is an American multinational food and beverage company based in Deerfield, Illinois.[BN] The Plaintiff is represented by: Reuben D. Nathan, Esq. NATHAN & ASSOCIATES, APC 2901 W. Coast Highway, Suite 200 Newport Beach, CA 92663 Phone: (949) 270-2798 Fax: (949) 209-0303 Email: rnathan@nathanlawpractice.com - and - Matthew Righetti, Esq. John Glugoski, Esq. RIGHETTI GLUGOSKI, P.C. 456 Montgomery Street, Suite 1400 San Francisco, CA 94101 Phone: (415) 983-0900 Facsimile: (415) 397-9005 Email: matt@righettilaw.com jglugoski@righettilaw.com MONOGRAM AEROSPACE: Lopez Sues Over Calif. Labor Code Violations ---------------------------------------------------------------- MARCELA LOPEZ, individually, and on behalf of all others similarly situated, Plaintiff, v. MONOGRAM AEROSPACE FASTENERS, INC., a Delaware corporation; and DOES 1 through 100, inclusive; Defendants, Case No. 19STCV17433 (Cal. Super. Ct., Los Angeles Cty., May 20, 2019) is an action against Defendants for California Labor Code violations and unfair business practices stemming from Defendants' failure to pay minimum and regular rate wages, failure to pay overtime wages, failure to provide meal periods, failure to authorize and permit rest periods, failure to maintain accurate records of hours worked and meal periods, failure to timely pay all wages to terminated employees, and failure to furnish accurate wage statements. At all times, Defendants classified Plaintiff as non-exempt from California's overtime requirements. During the statutory time period, Plaintiff was typically scheduled to work 6 to 7 days in a workweek, and typically 10 to 16 hours in a single workday. Throughout the statutory period, Defendants failed to pay Plaintiff for all hours worked (including minimum wages, overtime, and double-time compensation), failed to provide Plaintiff with uninterrupted meal periods, failed to authorize and permit Plaintiff to take uninterrupted rest periods, failed to maintain accurate records of the hours Plaintiff worked, failed to timely pay all final wages to Plaintiff when Defendants terminated Plaintiffs employment, and failed to furnish accurate wage statements to Plaintiff, says the complaint. Plaintiff is a California resident who worked for Defendants in Los Angeles County, California as a packer from approximately 1995 to the present. Defendants own/owned and operate/operated an industry, business, and establishment within the State of California, including Los Angeles County.[BN] The Plaintiffs are represented by: Kane Moon, Esq. H. Scott Leviant, Esq. Lilit Ter-Astvatsatryan, Esq. MOON & YANG, APC 1055 W. Seventh St., Suite 1880 Los Angeles, CA 90017 Phone: (213) 232-3128 Facsimile: (213) 232-3125 Email: kane.moon@moonyanglaw.com scott.leviant@moonyanglaw.com lilit@moonyanglaw.com MONSANTO COMPANY: Armstrong Sues over Sale of Herbicide Roundup --------------------------------------------------------------- Marvin Armstrong, the Plaintiff, v. MONSANTO COMPANY, the Defendant, Case No. 4:19-cv-01172-HEA (E.D. Mo., May 3, 2019), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiff maintains that Roundup (TM) 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. Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiff brings this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] Attorneys for the Plaintiff: Kirk J. Goza, Esq. GOZA & HONNOLD LLC 9500 Nall Ave. Suite 400 Overland Park, KS 66207 Telephone: (913) 451-3433 Facsimile: (913) 839-0567 E-mail: kgoza@gohonlaw.com MONSANTO COMPANY: Delsucs Sue over Sale of Herbicide Roundup ------------------------------------------------------------ LAURENT DELSUC AND CAROL LEANN DELSUC, husband and wife and their marital community, the Plaintiffs, v. MONSANTO COMPANY, the Defendants, Case No. 2:19-cv-00461 (W.D. Wash., March 28, 2019), seeks to recover damages suffered by the Plaintiffs, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) 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. Both Plaintiffs' injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiffs are represented by: Corrie J. Yackulic, Esq. CORRIE YACKULIC LAW FIRM, PLLC 705 Second Avenue, #1300 Seattle, WA 98104 Telephone: 206 787 1915 Facsimile: 206 299 9725 E-mail: Corrie@cjylaw.com MONSANTO COMPANY: Munkres Sues over Sale of Herbicide Roundup ------------------------------------------------------------- Terrill J. Munkres, Individually and as Anticipated Executor of the Estate of Billy G. Munkres, the Plaintiffs, v. MONSANTO COMPANY and and JOHN DOES 1-50., the Defendant, Case No. 4:19-cv-01174 (E.D. Mo., May 3, 2019), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) 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. Billy G. Munkres's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] Attorneys for the Plaintiffs: Eric D. Holland, Esq. HOLLAND LAW FIRM 300 North Tucker, Suite 801 St. Louis, MO 63101 Telephone. 314 241-8111 Facsimile 314-241-5554 E-mail: eholland@allfela.com - and - Melanie H. Muhlstock, Esq. PARKER WAICHMAN LLP 6 Harbor Park Drive Port Washington, NY 11050 Telephone: (516) 723-4627 Facsimile: (516) 723-4727 E-mail: mmuhlstock@yourlawyer.com MONSANTO COMPANY: Smiths Sue over Sale of Herbicide Roundup ----------------------------------------------------------- RENE M. SMITH and DAVID B. SMITH, the Plaintiffs, v. MONSANTO COMPANY and and JOHN DOES 1-50., the Defendant, Case No. 4:19-cv-01175-JAR (E.D. Mo., May 3, 2019), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) 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. Irene M. Smith's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] Attorneys for the Plaintiffs: Eric D. Holland, Esq. HOLLAND LAW FIRM 300 North Tucker, Suite 801 St. Louis, MO 63101 Telephone. 314 241-8111 Facsimile 314-241-5554 E-mail: eholland@allfela.com - and - Melanie H. Muhlstock, Esq. PARKER WAICHMAN LLP 6 Harbor Park Drive Port Washington, NY 11050 Telephone: (516) 723-4627 Facsimile: (516) 723-4727 E-mail: mmuhlstock@yourlawyer.com MONSANTO COMPANY: Walker Sues over Sale of Herbicide Roundup ------------------------------------------------------------ Michael Walker, Individually and as Anticipated Executor of the Estate of Billy G. Munkres, the Plaintiff, v. MONSANTO COMPANY and and JOHN DOES 1-50., the Defendant, Case No. 4:19-cv-01173 (E.D. Mo., May 3, 2019), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiff maintains that Roundup (TM) 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. Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiff brings this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] Attorneys for the Plaintiff: Kirk J. Goza, Esq. GOZA & HONNOLD LLC 9500 Nall Ave. Suite 400 Overland Park, KS 66207 Telephone: (913) 451-3433 Facsimile: (913) 839-0567 E-mail: kgoza@gohonlaw.com MORGAN STANLEY: Settles Ex-Financial Advisor's Class Action ----------------------------------------------------------- Alex Padalka, writing for Financial AdvisorIQ, reports that Morgan Stanley has agreed to a $10.2 million settlement of a class action lawsuit brought by a former financial advisor who accused the wirehouse of failing to cover the wirehouse advisors' work-related expenses, including business travel, client entertainment, licensing fees and phone and internet services, according to news reports. Filed last year by Brandon Harvey, who was with the wirehouse from 2013 until 2018, the suit alleges Morgan Stanley "had a policy and practice of not reimbursing class members" for business expenses. The settlement would cover around 2,800 California-based financial advisors and private wealth advisors employed by the wirehouse from 2013 until now, according to Law360.com, which cites a proposed settlement filed on April 29 in California federal court. Morgan Stanley would offer $8.5 million in cash and agree to around $1.7 million in future payments under the proposed settlement, the legal news publication writes. Harvey tells Law360.com that the settlement only represents less than 7% of what he sought but that the benefits "substantially outweigh the risk and that settlement at this juncture is in the best interests of the class, aggrieved employees, and the State of California." California's Labor Workforce Development Agency would get $450,000 from the cash fund, according to the website. Harvey's lawyers, the Wynne Law Firm and Markun Zusman Freniere & Compton, have asked for around $2.5 million from the cash fund as well, Law360.com writes. The roughly 2,800 advisors that are part of the settlement would therefore receive around $3,600 each, according to the website. Harvey also tells Law360.com that he tried to arrange for a global settlement that would settle the claims in Chen v. Morgan Stanley Smith Barney, a similar pending suit, but that he wasn't able to do so. The website didn't get a response from either party. Last year, Finra was particularly tough on one of Morgan Stanley's former advisors who allegedly improperly expensed the firm a mere $273. The industry's self-regulator barred John Baldeck from the industry in November for refusing to complete his testimony in the case related to his voluntary resignation from the wirehouse in 2016 following allegations that he had expensed personal meals as client meals. [GN] NATIONAL COLLEGIATE: Kelly Files Suit for Negligence ---------------------------------------------------- Corey Kelley, individually and on behalf of all others similarly situated v. National Collegiate Athletic Association, Case No. 1:19-cv-01218 (S.D. Ind., March 26, 2019), is brought against the Defendants for negligence, breach of express contract, and fraudulent concealment. The Defendant breached its duties to student football players, including the Plaintiff, by failing to disclose and/or failing to recognize and/or being willfully non-observant of material information regarding the long-term risks and effects of repetitive head trauma they possessed or should have possessed, the dangers of concussive and sub-concussive injuries, and the proper ways to evaluate, treat, and avoid concussive and sub-concussive trauma to football players, asserts the complaint. The Plaintiff played football at University of Central Missouri from 1994 to 1999, as a running back. While playing at UCM, the Plaintiff suffered from numerous concussions, as well as countless sub-concussive hits as part of routine practice and game play. The Defendant is an unincorporated association with its principal place of business located at 700 West Washington Street, Indianapolis, Indiana 46206. The NCAA is the governing body of collegiate athletics that oversees twenty-three college sports and over 400,000 students who participate in intercollegiate athletics, including the football program at UCM.[BN] The Plaintiff is represented by: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 E-mail: efile@raiznerlaw.com NATIONAL COLLEGIATE: Kerns Sues Over Student-Athletes' Injuries --------------------------------------------------------------- Tobi Kerns, individually and on behalf of all others similarly situated v. National Collegiate Athletic Association, Case No. 1:19-cv-02046 (S.D. Ind., February 15, 2019), is brought against the Defendant for negligence, breach of express contract and fraudulent concealment. The Plaintiff brings this class action to obtain redress for injuries sustained a result of Defendant's reckless disregard for the health and safety of generations of Indiana University, Bloomington student-athletes. The Plaintiff alleged that for decades, the Defendant NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. The Plaintiff is a natural person and citizen of the State of Indiana. The Plaintiff played football at IUB from 1990 to 1992, as a fullback and has suffered from numerous concussions, as well as countless sub-concussive hits as part of routine practice and game play. The Defendant NCAA is an unincorporated association with its principal place of business located at 700 West Washington Street, Indianapolis, Indiana 46206. The Defendant is the governing body of collegiate athletics that oversees twenty-three college sports and over 400,000 students who participate in intercollegiate athletics, including the football program at IUB. [BN] The Plaintiff is represented by: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Tel: (713) 554-9099 Fax: (713) 554-9098 E-mail: efile@raiznerlaw.com NAVIENT CORP: Still Defends Consolidated Class Suit in New Jersey ----------------------------------------------------------------- Navient Corporation said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2019, that it intends to "vigorously defend" itself against the consolidated class lawsuit in New Jersey. Two putative class actions have been filed in the U.S. District Court for the District of New Jersey captioned Eli Pope v. Navient Corporation, John F. Remondi, Somsak Chivavibul and Christian Lown, and Melvin Gross v. Navient Corporation, John F. Remondi, Somsak Chivavibul and Christian M. Lown, both of which allege violations of the federal securities laws under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. These cases were consolidated by the Court in February 2018, the plaintiffs filed a consolidated amended complaint in April 2018 and the Company filed a motion to dismiss in June 2018. The Company has denied the allegations. NAVIENT CORP: Still Faces Lord Abbett Consolidated Class Lawsuit ---------------------------------------------------------------- Navient Corporation continues to defend itself against the consolidated case captioned, Lord Abbett Affiliated Fund, Inc., et al. v. Navient Corporation, et al., according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2019. The Court has previously granted-in-part and denied-in-part the Navient defendants' motion to dismiss the complaint. During the first quarter of 2016, Navient Corporation, certain Navient officers and directors, and the underwriters of certain Navient securities offerings were sued in three putative securities class action lawsuits filed on behalf of certain investors in Navient stock or Navient unsecured debt. These three cases, which were filed in the U.S. District Court for the District of Delaware, were consolidated by the District Court, with Lord Abbett Funds appointed as Lead Plaintiff. The plaintiffs filed their amended and consolidated complaint in September 2016. In September 2017, the Court granted the Navient defendants' motion and dismissed the complaint in its entirety with leave to amend. The plaintiffs filed a second amended complaint with the court in November 2017 and the Navient defendants filed a motion to dismiss the second amended complaint in January 2018. In January 2019, the Court granted-in-part and denied-in-part the Navient defendants' motion to dismiss. The Navient defendants deny the allegations and intend to vigorously defend against the allegation in this lawsuit. NEW MEXICO: Cummings Files Petition for Writ of Certiorari ---------------------------------------------------------- Plaintiffs Randy Cummings, et al., filed with the Supreme Court of United States a petition for a writ of certiorari in the matter titled RANDY CUMMINGS, ET AL. v. CELINA BUSSEY, SECRETARY OF THE NEW MEXICO DEPARTMENT OF WORKFORCE SOLUTIONS, AND JASON DEAN, AS THE DIRECTOR OF THE LABOR RELATIONS DIVISION OF THE NEW MEXICO DEPARTMENT OF WORKFORCE SOLUTIONS, IN THEIR INDIVIDUAL CAPACITIES, Case No. 18-1357. Response was due May 29, 2019. The questions presented by the Petition are: 1. Whether a federal court interpreting a state statute can conclude that it grants the state agency discretion such that the "ministerial exception" to immunity does not apply, where the highest court of the state concluded that the statute in question imposed a "mandatory, non-discretionary duty" on the agency to follow its mandates and that doing so was purely a ministerial act? 2. Whether a federal court interpreting a state statute can find that the law governing employees' property right -- defined by state law -- in prevailing wages was not "clearly established" at the time of the violation where the highest court of the state concluded that it was? The Lower Court Case is entitled Randy Cummings, et al. v. Celina Bussey, et al., Case Nos. 17-2072 and 17-2079, in the United States Court of Appeals for the Tenth Circuit. As previously reported in the Class Action Reporter, the nature of suit is stated as other civil rights. Celina Bussey is the Secretary of the New Mexico Department of Workforce Solutions. The District Court case is styled Cummings, et al. v. Bussey, et al., Case No. 1:16-CV-00951-JAP-KK, in the U.S. District Court for the District of New Mexico - Albuquerque.[BN] Plaintiffs-Petitioners Randy Cummings, et al., are represented by: James Marshall Piotrowski, Esq. PIOTROWSKI DURAND, PLLC P.O. Box 2864 1020 W. Main Street, Suite 440 Boise, ID 83701 Telephone: (208) 331-9200 E-mail: james@idunionlaw.com - and - Shane Youtz, Esq. Stephen Curtice, Esq. James A. Montalbano, Esq. YOUTZ & VALDEZ, P.C. 900 Gold Avenue S.W. Albuquerque, NM 87102 Telephone: (505) 244-1200 E-mail: shane@youtzvaldez.com stephen@youtzvaldez.com james@youtzvaldez.com NEW ORLEANS, LA: Caluda et al. Seek to Certify Class Action ----------------------------------------------------------- In the class action lawsuit, ROBERT J. CALUDA, APLC AND NEW ORLEANS PRIVATE PATROL SERVICE, INC., the Plaintiffs, vs. THE CITY OF NEW ORLEANS, LINEBARGER, GOGGAN, BLAIR & SAMPSON, L.L.P. AND UNITED GOVERNMENTAL SERVICES OF Case No. 2:19-cv-02497-SM-JCW (E.D. La.), the Plaintiffs ask the Court for an order certifying their case as a class action. The Plaintiffs are members of the proposed class and represent those persons and entities similarly situated, who reside in and/or owned movable property in the City of New Orleans, Parish of Orleans, State of Louisiana, who paid a 30% or other collection penalty and 3% late payment penalty to the defendant, City of New Orleans. The 30% penalty was paid to a private debt collector, United Governmental Services of Louisiana, Inc. and Heard, Linebarger, Graham, Goggan, Blair, Pena & Sampson, L.L.P. pursuant to Ordinance No. 18637 of the City of New Orleans adopted on March 6, 1998.[CC] Counsel for the Plaintiffs: Allain F. Hardin, Esq. ALLAIN F. HARDIN, APLC 807 Howard Avenue New Orleans, LA 70113 Telephone: (504) 522-1188 Facsimile: (504) 524-8317 E-mail: fransenandhardin@aol.com afhardin@aol.com NIAGARA DISTRIBUTORS: Removes Rodriguez Suit to S.D Florida ----------------------------------------------------------- Niagara Distributors, Inc. and Janet Lucci filed a notice to remove the case, ELBA RODRIGUEZ, and other similarly Situated individuals, the Plaintiffs, v. NIAGARA DISTRIBUTORS, INC. and JANET LUCCI, the Defendants, Case No. CACE19005888 (Filed March 15, 2019), from the Circuit Court for the Seventeenth Judicial Circuit, in and for Broward County, Florida, to the U.S. District Court for the Southern District of Florida on May 3, 2019. The Southern District of Florida Court Clerk assigned Case No, 0:19-cv-61133-XXXX to the proceeding. Niagara Distributors is a full line bakery and food service distributor. Niagara was founded in 1979 by Mr. Pat Lucci, the Chairman of the Board. The complaint assert claims pursuant to the Fair Labor Standards Act of 1938.[BN] Attorneys for the Defendants: Peter J. Bober, Esq. Samara Robbins Bober, Esq. BOBER & BOBER, P.A. 2699 Stirling Road, Suite A-304 Hollywood, FL 33312 Telephone: (954) 922-2298 Facsimile: (954) 922-5455 E-mail: Peter@boberlaw.com Samara@boberlaw.com NORTHLAND GROUP: Johnson Sues over Debt Collection Practices ------------------------------------------------------------ Malika R. Johnson, individually and on behalf of all others similarly situated, the Plaintiff, vs. Northland Group, Inc. and Radius Global Solutions, LLC, the Defendants, Case No. 1:19-cv-02630 (E.D.N.Y., May 3, 2019), seeks to recover damages for Defendants' violations of the Fair Debt Collection Practices Act. According to the complaint, the Plaintiff is a natural person allegedly obligated to pay a debt. The Defendants regularly collect or attempt to collect debts asserted to be owed to owed by consumers. The Defendants are regularly engaged, for profit, in the collection of debts allegedly others. The Defendants use the mails in their debt collection business. The alleged Debt is an alleged obligation of the Plaintiff to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes. The alleged Debt does not arise from any business enterprise of the Plaintiff. In its efforts to collect the alleged Debt, Defendants contacted the Plaintiff by letter dated May 6, 2018. The Letter conveyed information regarding the alleged Debt. The Letter is a "communication" as defined by 15 U.S.C. section 1692a(2). The Letter is on letterhead indicating the debt collector is "Northland Group." Northland Group was a Minnesota limited liability company formed on April 28, 2017. Northland Group ceased to exist on April 20, 2018, when it changed its name to "Radius Global Solutions, LLC." Despite the above, Defendants sent the Letters using the name "Northland Group". The Defendants used a false name.[BN] Attorneys for the Plaintiff: BARSHAY SANDERS, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Telephone: (516) 203-7600 Facsimile: (516) 706-5055 E-mail: ConsumerRights@BarshaySanders.com NUTANIX INC: Maroun Files Class Action Over False Reports ---------------------------------------------------------- JOSEPH S. MAROUN, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. NUTANIX, INC., DHEERAJ PANDEY and DUSTON M. WILLIAMS, Defendants, Case No. 3:19-cv-02744 (N.D. Cal., May 20, 2019) is a securities class action on behalf of all those who purchased or sold Nutanix publicly traded securities during the period from March 2, 2018 through February 28, 2019, inclusive (the "Class Period"), who were damaged (the "Class") and thereby seek remedies under the Securities Exchange Act of 1934 (the "Exchange Act"). The Defendants made repeated statements that Nutanix was investing heavily in growth and was increasing sales and marketing activities while improving upon gross margins due to changes being made to the Company's business model, including the shift from hardware to software and the change from licensing to subscription platforms. Contrary to these statements, and as revealed by the Defendants on February 28, 2019, starting with the fourth fiscal quarter of 2017 (beginning May 1, 2017) through the third fiscal quarter of 2018 (ending April 30, 2018), Defendants did not increase Nutanix's lead generation spending, but rather held lead generation spending, an admitted "key component to building pipeline," flat. Further, starting with the fourth fiscal quarter of 2018 (beginning May 1, 2018) through the second fiscal quarter of 2019 (ending January 31, 2019), rather than either increasing lead generation spending or holding that spending flat, Defendants actually decreased Nutanix's lead generation spending. Additionally, on this same date Defendants revealed that Nutanix had fallen behind in its sales hiring goals. By misrepresenting the magnitude of Nutanix's marketing spending, and failing to disclose Nutanix was pulling back on lead generation spending, Defendants were able to misrepresent that Nutanix had improved its gross margins through changes to its business model rather than the truth--that Nutanix was skimping on important drivers of revenue growth. As a result of Nutanix's lower lead generation spending and failure to keep pace with its sales hiring goals, Nutanix's pipeline of new business was severely negatively impacted, resulting in significantly lower forecasted earnings starting in the third fiscal quarter of 2019 (ending April 30, 2019), says the complaint. Plaintiff purchased Nutanix securities in reliance on Defendants' materially false and misleading statements and omissions of material facts, and on the integrity of the market for Nutanix securities, at artificially inflated prices during the Class Period. Nutanix, Inc. is an enterprise cloud platform provider. Nutanix common stock trades under the ticker "NTNX" on the NASDAQ, an efficient market.[BN] The Plaintiff is represented by: James M. Wagstaffe, Esq. Frank Busch, Esq. WAGSTAFFE, VON LOEWENFELDT, BUSCH & RADWICK LLP 100 Pine Street, Suite 725 San Francisco, CA 94111 Phone: (415) 357-8900 Facsimile: (415) 357-8910 Email: wagstaffe@wvbrlaw.com busch@wvbrlaw.com NZONE GUIDANCE: Hiser's Operators and Drillers Classes Certified ---------------------------------------------------------------- The Hon. Robert Pitman granted in part the Plaintiffs' Motion for Conditional Certification and Court-Authorized Notice in the lawsuit entitled STEPHEN HISER and DANA ACE, individually and on behalf of all others similarly situated v. NZONE GUIDANCE, LLC, Case No. 1:18-cv-01056-RP (W.D. Tex.). The Court conditionally certifies these classes under the Fair Labor Standards Act: * All MWD Operators employed by, or working on behalf of, NZone while classified as independent contractors and paid a day rate at any time during the last three years; and * All Directional Drillers employed by, or working on behalf of, NZone while classified as independent contractors and paid a day rate at any time during the last three years. The Court directs the parties to confer and attempt to reach a consensus regarding the form and substance of the notice to be provided to putative class members. If the parties are unable to reach an agreement, the Plaintiffs shall submit a renewed motion for court-authorized notice.[CC] OMNICELL INC: Mazya Plaintiff Files Amended Complaint ----------------------------------------------------- The Plaintiff in the "Yana Mazya" class-action lawsuit has filed an amended complaint, which adds a new named plaintiff and an additional defendant, according to Omnicell, Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2019. On June 6, 2018, a class-action lawsuit was filed against a customer of the Company, the customer's parent company and two vendors of medication dispensing systems, one of which is the Company, in the Circuit Court of Cook County, Illinois, Chancery Division, captioned Yana Mazya, individually and on behalf of all others similarly situated v. Northwestern Lake Forest Hospital, Northwestern Memorial Healthcare, Omnicell, Inc. and Becton Dickinson, Case No. 2018-CH-07161. The complaint sought class certification, monetary damages in the form of statutory damages for willful and/or reckless or, in the alternative, negligent violation of the Illinois Biometric Information Privacy Act ("BIPA"), and certain declaratory, injunctive, and other relief based on causes of action directed to allegations of violation of BIPA and of negligence by the defendants. The complaint was served on the Company on June 15, 2018. The Company's obligation to respond to the complaint was held in abeyance pending a decision of the Illinois Supreme Court in a separate case involving BIPA issues. The Illinois Supreme Court issued its decision in that case on January 25, 2019. On April 10, 2019, subsequent to the court's issuance of an order granting the plaintiff leave to file an amended complaint, the plaintiff filed an amended complaint adding a second named plaintiff and an affiliate of the Company's customer as an additional defendant and, in addition to making other modifications to the complaint, removing the separate cause of action directed to negligence. The court established a deadline of May 13, 2019 for the defendants to answer or otherwise respond to the amended complaint. The Company intends to defend the lawsuit vigorously. Omnicell, Inc. provides automation and business analytics software solutions for medication and supply management in healthcare worldwide. The Company operates through two segments, Automation and Analytics, and Medication Adherence. The Company was formerly known as Omnicell Technologies, Inc. and changed its name to Omnicell, Inc. in 2001. Omnicell, Inc. was founded in 1992 and is headquartered in Mountain View, California. ONEMAIN HOLDINGS: Executes Settlement for Galestan Securities Suit ------------------------------------------------------------------ OneMain Holdings, Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2019, that parties in the putative class action lawsuit styled, Galestan v. OneMain Holdings, Inc., et al., has executed a settlement agreement, which is subject to Court approval. The Company also said that papers in support of approval of the settlement have been filed with the Court. The settlement agreement provides for the dismissal of the action with prejudice. The amount incurred by the Company is immaterial and has been properly accrued, including the related insurance proceeds, as of March 31, 2019. The settlement contains no admission of liability by the Company and the other defendants. On February 10, 2017, the federal securities class action was filed in the U.S. District Court for the Southern District of New York, naming as defendants the Company and two of its officers. The lawsuit alleges violations of the Exchange Act for allegedly making materially misleading statements and/or omitting material information concerning alleged integration issues after the OneMain Acquisition in November 2015, and was filed on behalf of a putative class of persons who purchased or otherwise acquired the Company's common stock between February 25, 2016 and November 7, 2016. The complaint seeks an award of unspecified compensatory damages, an award of interest, reasonable attorney's fees, expert fees and other costs, and equitable relief as the court may deem just and proper. On March 23, 2017, the court appointed a lead plaintiff for the putative class and approved the lead plaintiff's selection of counsel. The plaintiff filed an amended complaint on June 13, 2017 challenging statements regarding the Company's projections of future financial performance and certain statements regarding integration after the OneMain Acquisition. On September 29, 2017, pursuant to the Court's Individual Rules and Practices, the Company sought permission to file a motion to dismiss the amended complaint and on December 12, 2018, the Court denied that motion. On January 4, 2019, the Company requested permission to reargue the motion to dismiss decision with respect to the challenged statements from February 2016. On April 23, 2019, the parties executed the settlement agreement. OneMain Holdings, Inc., through its subsidiaries, provides consumer finance and insurance products and services. The company operates in two segments, Consumer and Insurance, and Acquisitions and Servicing. OneMain Holdings, Inc. was founded in 1920 and is based in Evansville, Indiana. OXY USA: Court Won't Review Remand Denial in Cooper Clark's Suit ---------------------------------------------------------------- The United States District Court for the District of Kansas issued a Memorandum and Order denying Plaintiffs' Motion to Reconsider in the case captioned COOPER CLARK FOUNDATION, On behalf of itself and All others similarly situated, Plaintiff, v. OXY USA INC., Defendant. Case No. 18-1222-JWB. (D. Kan.). This court entered an order denying the Plaintiffs' motion to remand this action to state court. The detailed history of the consolidated state court action is set forth in that order and will not be restated here. The pertinent question in that decision was whether a consolidated class action was merged into a single action under Kansas state law. If so, the amount in controversy was established in this case. In the prior order, the undersigned conducted a review of Kansas and federal law and determined that when a plaintiff obtains consolidation under K.S.A. 60-242(a)(2) of putative class actions with overlapping claims, classes, and defendants, consolidation results in merger and CAFA jurisdiction is therefore evaluated based on the amount in controversy in the merged case. Therefore, CAFA jurisdiction was established and the motion to remand was denied. Plaintiffs have now moved for reconsideration of this court's decision. Plaintiffs argue that the court erred by interpreting the state court judge's consolidation order as a consolidation under 60-242(a)(2) and that the court erred by not following federal law. First, K.S.A. 60-242(a) provides as follows: "(a) Consolidation. If actions involving a common question of law or fact are pending before the court in the same or different counties in the judicial district, the court may: (1) Join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions or (3) issue any other orders to avoid unnecessary cost or delay." In the order denying remand, the court reviewed the underlying state court judge's decision granting the motion to consolidate the three class actions and the record in that consolidated action. The court concluded that the order of consolidation was an order under K.S.A. 60-242(a)(2) based on the language in the order. The Plaintiff contends that this court erred construing the order for consolidation as an order under section 60-242(a)(2) because the state court did not specifically identify the subpart in the order. The Plaintiff, however, fails to identify how this court's decision was erroneous. The state court judge did not specifically identify the basis for the consolidation. But, the Plaintiff makes no argument that this case was consolidated under a different subpart. The state court order stated that the Plaintiff is requesting that all three (3) actions, currently in the 26th Judicial District, be consolidated into one action. The order clearly consolidates the matter into one action, as indicated by 60-242(a)(2). The Plaintiff makes no attempt at a colorable argument as to why the state court order was a consolidation under a different subpart. Therefore, the Plaintiffs have not shown the court erred in construing the order as an order to consolidate under 60-242(a)(2). Accordingly, the Plaintiffs' motion for reconsideration is denied. A full-text copy of the District Court's May 16, 2019 Memorandum and Order is available at https://tinyurl.com/yxdz2d8j from Leagle.com. Cooper Clark Foundation, on behalf of itself and all others similarly situated, Plaintiff, represented by Barbara C. Frankland -- bfrankland@midwest-law.com -- Rex A. Sharp, PA, Rex A. Sharp -- rsharp@midwest-law.com -- Rex A. Sharp, PA, Ryan C. Hudson -- rhudson@midwest-law.com -- Rex A. Sharp, PA & Scott B. Goodger -- sgoodger@midwest-law.com -- Rex A. Sharp, PA. OXY USA Inc., Defendant, represented by Aurra Fellows -- afellows@velaw.com -- Vinson & Elkins LLP, pro hac vice, James M. Armstrong -- jarmstrong@foulston.com -- Foulston Siefkin LLP, Mark C. Rodriguez -- mrodriguez@velaw.com -- Vinson & Elkins LLP, pro hac vice & Mikel L. Stout -- mstout@foulston.com -- Foulston Siefkin LLP. P&S SELECT: Franco Seeks Unpaid Minimum and Overtime Wages ---------------------------------------------------------- LUIS ALBERTO RIVAS FRANCO, individually and on behalf of others similarly situated, the Plaintiff, vs. P&S SELECT FOODS INC. (D/B/A P & S SELECT FOODS INC.), RAY MILLAN , GARY LANGSAM , ANTHONY MILLAN , and RAY MILLAN JR., the Defendants, Case No. 1:19-cv-04009 (S.D.N.Y., May 3, 2019), seeks to recover unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act and the New York Labor Law. The Defendants own, operate, or control a supply company, located at 355 Food Center Drive, Bronx, NY 10474 under the name "P & S Select Foods Inc." The Plaintiff was employed as a driver's helper at the supply company located at 355 Food Center Drive, Bronx, NY 10474. According to the complaint, the Plaintiff worked for Defendants in excess of 40 hours per week, without appropriate minimum wage and overtime compensation for the hours that he worked. Rather, the Defendants failed to maintain accurate recordkeeping of the hours worked and failed to pay Plaintiff appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Defendants' conduct extended beyond Plaintiff Rivas to all other similarly situated employees. The Defendants maintained a policy and practice of requiring Plaintiff and other employees to work in excess of 40 hours per week without providing the minimum wage and overtime compensation required by federal and state law and regulations, the lawsuit says.[BN] Attorneys for the Plaintiff: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: Faillace@employmentcompliance.com P.F. CHANG'S: Wilson Elser Attorney Discusses Court Ruling ---------------------------------------------------------- Kara Thorvaldsen, Esq. -- kara.thorvaldsen@wilsonelser.com -- and Tracy Waugh, Esq. -- tracy.waugh@wilsonelser.com -- of Wilson Elser Moskowitz Edelman & Dicker LLP, in an article for The National Law Review, report that in Gammella v. P.F. Chang's China Bistro, Inc., Massachusetts's highest court, the Supreme Judicial Court (SJC), has weighed in on several recurring class action litigation issues, providing much needed guidance in an area where there is limited precedential case law in this jurisdiction. The decision also highlighted some important and somewhat subtle distinctions between class action practice in Massachusetts state court versus federal court. * First, the court addressed the standard for certifying a class action brought under the Massachusetts Wage Act or the minimum fair wage law. The court rejected plaintiff's argument that a more lenient class certification standard should be inferred from the wage laws, holding that Mass. R. Civ. P. 23 provides the correct framework for analyzing certification. * Next, the court clarified the standard for determining whether the numerosity requirement for class certification has been met and, in the process, provided a reminder of why "fail-safe" classes are not permissible. * Finally, the court signaled that attempts to moot a putative class action with a Rule 68 offer of judgment or tender of "complete relief" are unlikely to gain traction in Massachusetts state proceedings. Background The factual underpinning of the Gammella case is uncomplicated. Under regulations promulgated by the Massachusetts Department of Occupational Safety, if an hourly employee scheduled to work for three hours or more reports for duty at the time set by the employer but is involuntarily dismissed before having worked three hours, the employee must nonetheless be paid for at least three hours at no less than the basic minimum wage. This is known as "show up" or "reporting" pay. The plaintiff in Gammella had worked for P.F. Chang's for approximately seven years and testified that on numerous occasions he was cut from his shift after reporting for work and was not paid reporting pay as required by law. In discovery, the defendant produced reports confirming the plaintiff's testimony on this point, and identifying approximately 7,000 similar instances involving hundreds of other employees who had worked shifts of fewer than three hours without receiving reporting pay. The plaintiff moved for certification of a class made up of hourly employees in Massachusetts who were scheduled to work for at least three hours but worked fewer hours and were not paid three hours of reporting pay. The defendant asserted that it had no way of knowing whether the hundreds of employees identified had been involuntarily dismissed early from their shifts or whether their shifts had been cut short at the employees' own requests. Based on an opinion letter from the Executive Office of Labor and Workforce, which stated that no reporting pay was required where an employee voluntarily chose to leave a shift early, the motion judge redefined the plaintiff's proposed class. The redefined class included only those employees who had been involuntarily cut or whose choice to leave early was not free from pressure from the employer. The trial judge then took the unusual step of denying certification for failure to sufficiently establish numerosity. The numerosity requirement for class certification is usually the easiest element to establish, and classes of as few as 40 members have been certified. Here, however, despite the hundreds of other employees identified as putative class members, the trial judge concluded that the plaintiff had failed to present sufficient evidence of numerosity to certify the class. The trial judge did not assess the remaining Rule 23 factors. As an aside, it is worth noting the plaintiff did not attempt an interlocutory appeal of the denial of class certification, presumably because such discretionary review is rarely granted under Massachusetts law, even less frequently than in federal court. Only about 1% of all appeals in Massachusetts are interlocutory; in contrast, by some counts up to 25% of Federal Rule 23(f) petitions seeking review of class certification orders are granted. After denial of certification, the defendant made two offers of settlement. The first was a formal Rule 68 offer of judgment, which under its own terms and under the provisions of Rule 68 was deemed withdrawn when the plaintiff failed to accept it. The second was a "tender of complete relief," a letter accompanied by a certified check in an amount that would render "complete relief" on the individual plaintiff's claims, with an offer of reasonable attorneys' fees, costs and interest. The letter advised that if the offer was not accepted, the defendant would move to dismiss the action on grounds of mootness. Upon expiration of the tender, the defendant sought dismissal and the trial court granted it, holding that complete relief had been offered and the claims were accordingly moot. Both parties and the court recognized that upon dismissal, the plaintiff would be able to appeal the ruling on class certification. Appeal Massachusetts's highest court took up the appeal sua sponte. The plaintiff argued before the SJC that class certification should be decided not with reference to the requirements of Mass. R. Civ. P. 23, but under a more lenient standard inferred from provisions of the wage laws, which authorize a private right of action, including the right to bring a class action. The SJC rejected this argument, comparing the provisions of the wage laws to the language of the Massachusetts Consumer Protection Act (known as chapter 93A), which contains "highly detailed language" specifying the standard to be applied to class actions brought under its provisions. In contrast, the wage laws contain no such language. Accordingly, the court definitively stated that a class action brought under the wage laws must be analyzed using the Rule 23 standard, not a more lenient approach such as that available under chapter 93A. On the issue of numerosity, the SJC held that the trial judge had required too strict a standard of proof at the class certification stage. All that is needed to certify a class is evidence "sufficient to enable the motion judge to form a reasonable judgment that the class meets the requirements of Rule 23." Moreover, the court explained that the numerosity requirement "is less about the number of class members than it is about the impracticability of joinder" of all the members. One of the traditional rationales for permitting class claims is to allow aggregation of multiple small claims into an action that has value such that it becomes worth pursuing. Thus, where the plaintiff had identified hundreds of employees who had in more than 7,000 instances worked fewer than three hours without receiving reporting pay, and the defendant's own poor record keeping prevented the parties and court from determining the reasons for nonpayment, it was reasonable to infer that the class was numerous and joinder would be impracticable. Analysis Open questions remain as to whether the defendant can defeat class certification on remand, based on commonality and typicality. In ruling on the class certification motion, the trial judge noted that the defendant had not identified a single instance from 2011 to 2015 when it had provided any Massachusetts employee with reporting pay. However, there are almost certainly instances within that set of data where a failure to pay reporting pay was not a violation because the employees voluntarily left their shift early. The question will then become whether "common questions of law and fact" do indeed predominate over individual issues, as contemplated by Mass. R. Civ. P. 23. The SJC signaled that these hurdles could be overcome, referencing another wage class action in which it had held that the possible presence of some uninjured class members did not defeat certification, and noting that the defendant's poor record keeping could not be used to defeat class certification. The court also pointed out that by attempting to redefine the class as only those workers who had improperly been denied reporting pay, the motion judge had created an impermissible "fail-safe class," meaning a class defined as only those who had a valid claim. A fail-safe class is impermissible because any putative class member to whom the defendant is not found liable is defined out of the class, is not bound by the judgment, and may continue to litigate, contrary to the purpose of class actions. Finally, on the issue of mootness, the SJC held that the tender of "complete relief," under the circumstances, had not mooted the class representative's individual claims and had not deprived the court of subject matter jurisdiction. The idea of mooting a "case or controversy" by offering or tendering complete relief to a plaintiff is a strategy that holds great appeal for defendants. However, as the SJC noted, the United States Supreme Court rejected this tactic in Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663 (2016), holding that an unaccepted settlement offer − in the form of a Rule 68 offer of judgment − does not moot a claim. Here, even the "tender of complete relief," which included delivering a certified check in an amount exceeding the dollar value of the plaintiff's individual claim, could not moot the claim. The SJC also emphasized that unlike federal courts, where jurisdiction is limited by the Article III "case or controversy requirement," standing in state courts is governed by different considerations. In this particular case, the mootness argument was made even weaker because by the time the SJC heard this case the plaintiff's motion for class certification had been denied and was under appeal. The viability of the class claims was therefore still very much at issue. Moreover, the SJC reasoned that permitting a defendant to employ this tactic to moot a putative class action would effectively render the denial of class certification unreviewable, an unacceptable outcome. Conclusion It is clear that the parties and the court had an interest in seeing a final judgment entered so that the class certification ruling could be reviewed. Had the trial court not dismissed the claim on mootness grounds, no appeal would have been possible until the putative class representative's individual claim was tried to judgment. This ruling highlights the critical importance of the class certification determination and demonstrates that even where certification is initially denied, the potential for reversal on appeal must be considered. In any event, the SJC's ruling in Gammella provides useful guidance to class action litigants and the Massachusetts trial courts. [GN] PAN E VINO: Gonzalez Seeks Damages Over Unpaid Wages ---------------------------------------------------- MANUEL SARABIA GONZALEZ, MARTIN PEREZ MORALES, RICARDO PALILLERO, JOSE TORRES MIGUEL, MAYNOR RIGOBERTO TOC PABLO, AUCAY PESANTEZ SEGUNDO VICTORIANO, DEIVIS DAVILA MELENDEZ AND EDWIN GUARDADO GARCIA individually and on behalf of others similarly situated, Plaintiffs, v. ERVIN ROSENFELD AND PANE E VINO RESTAURANT INC., Defendants, Case No. CV19-3015 (E.D. N.Y., May 21, 2019) is a civil action for damages and equitable relief based on willful violations of the Defendants. The Defendants maintained a policy and practice of requiring Plaintiffs and other employees to work in excess of 40 hours per week without providing the minimum wage and overtime compensation required by federal and state law and regulations, notes the complaint. Defendants further failed to pay Plaintiffs the required "spread of hours" pay for any day in which they had to work over 10 hours a day, the complaint adds. Plaintiffs are current employees of Defendants. They were ostensibly employed as bussers, servers, runners, cooks and dishwashers. Pane E Vino Restaurant, Inc. is a domestic corporation organized and existing under the laws of the State of New York and operates a restaurant and bar called Pane E Vino.[BN] The Plaintiffs are represented by: Robert J. Renna, Esq. Robert J. Renna, P.C. 26 Court Street, Suite 303 Brooklyn, NY 11242 Phone: (718) 422-1003 Fax: (718) 422-1156 PROGRESSIVE SELECT: William South Suit Moved to S.D. Florida ------------------------------------------------------------ The case, William South, individually and on behalf of all those similarly situated, the Plaintiff, vs. Progressive Select Insurance Company, the Defendant, Case No. 8:18-cv-02567, was transferred from the U.S. District Court for the Middle District of Florida, to the U.S. District Court for the Southern District of Florida (Miami) on May 3, 2019. The Southern District of Florida Court Clerk assigned Case No. 1:19-cv-21760-MGC to the proceeding. The suit alleges insurance-related violation. The case is assigned to the Hon. Judge Marcia G. Cooke. Progressive Select Insurance Company operates as an insurance company. The Company offers auto, trailers, motorcycles, boats, renters, condos, flood, life, and health insurance services. Progressive Select Insurance serves customers in the United States.[BN] Attorneys for the Plaintiff: Casim Adam Neff, Esq. NEFF INSURANCE LAW, PLLC 4051 27th Ave North Saint Petersburg, FL 33713 Telephone: (727) 342-0617 - and - Craig Evan Rothburd, Esq. CRAIG E. ROTHBURD, P.A. 320 W. Kennedy Blvd., Suite 700 Tampa, FL 33606 Telephone: (813) 251-8800 Facsimile: 251-5042 E-mail: craig@rothburdpa.com - and - Scott Jeeves, Esq. 954 1st Avenue North Saint Petersburg, FL 33705 Telephone: (727) 894-2929 Facsimile: (727) 822-1499 Attorneys for Progressive Select Insurance Company: Irene Bassel Frick, Esq. Jason L. Margolin, Esq. Marcy Levine Aldrich, Esq. Bryan Thomas West, Esq. AKERMAN LLP 401 E. Jackson Street, Suite 1700 Tampa, FL 33602 Telephone: (813) 223-7333 Facsimile: (813) 223-2837 E-mail: Irene.Bassel@akerman.com jason.margolin@akerman.com marcy.aldrich@akerman.com bryan.west@akerman.com PUPPY MANAGEMENT: Does not Properly Pay Workers, DeRoss Says ------------------------------------------------------------- JENNIFER DeROSS, Plaintiff, v. PUPPY MANAGEMENT, INC., A/K/A EXECUTIVE IQ MANAGEMENTSTAFFING, INC, JAMES WRIGHT, JR., WGC SPORTS, LLC, ANTONIO BRYANT, G5IVE, LLC and BLACKACRE, LLC, Defendants, Case No. 89837588 (11th Judicial Circuit Ct., Miami-Dade Cty., Fla., May 21, 2019) is an action under the Fair Labor Standards Act (the "FLSA"), on behalf of herself and other similarly situated current and former tipped employees ("Servers") who work and/or worked for Defendants ("Employer") for minimum wage violations of the FLSA and for owed wages/tips. According to the complaint, the Employer paid Plaintiff and Servers nothing for an hourly wage despite being required to do so pursuant to the FLSA's minimum wage provisions; refused to pay Plaintiff and the Servers all and/or any of their tips and/or extra tips paid by G5ive's customers; required that Plaintiff and the Servers work for free; required that Plaintiff and Servers purchase and maintain work uniforms at their own cost; and failed to pay Plaintiff and the Servers for any and/or all of their actual work time in violation of the FLSA. Plaintiff and the Servers work and/or worked for the Employer in Miami-Dade County, Florida in its Adult entertainment nightclub/bar called "G5ive." Defendant is an "enterprise" as defined by the FLSA and is subject to the FLSA.[BN] The Plaintiff is represented by: Lawrence J. McGuinness, Esq. MG LEGAL GROUP 3126 Center St. Coconut Grove, FL 33133 Phone: (305) 448-9557 Fax: (305) 448-9557 Email: ljm@ljmpalaw.com RAINBOW NAILS: Court OKs Conditional Certification in Yang Suit --------------------------------------------------------------- The United States District Court for the Eastern District of New York issued a Memorandum and Order granting Plaintiffs' Motion for Conditional Certification in the case captioned JUN HUA YANG, on behalf of herself and all other employees similarly situated, Plaintiff, v. RAINBOW NAILS SALON IV INC., doing business as Rainbow Nails IV, GINA DANG, Defendants. No. 18-CV-4970-DLI-SJB. (E.D.N.Y.). Plaintiff Jun Hua Yang (Yang), a nail technician, commenced this wage-and-hour and employment discrimination litigation against Rainbow Nails Salon IV Inc. (Rainbow Nails) and Gina Dang (Dang) (Defendants) based on alleged violations of the Fair Labor Standards Act (FLSA), the New York Labor Law (NYLL), the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL). Conditional Certification of Collective Action Yang seeks conditional certification of a collective action of all nail technicians who are or were formerly employed by Defendants to the present. Yang must demonstrate that she is similarly situated to the potential opt-in plaintiffs all the nail technicians at Rainbow Nails for the three years prior to the filing of the initial complaint and that such individuals were subject to the same unlawful policy. Yang has established through her affidavit and her Amended Complaint that she was subject to three policies that run afoul of FLSA: Defendants' practice of (1) paying employees fixed daily amounts that, when divided by the numbers of hours actually worked, do not pay the required hourly minimum wage (2) failing to compensate employees for overtime hours they worked and (3) forcing employees to pay for the equipment needed to perform their job duties. Yang attests that she was subject to all three practices. The Defendants acknowledge that, although they dispute Yang's allegations, the Court cannot determine factual issues that reach the merits of the plaintiffs' claims because doing so is inappropriate at this stage of the proceeding. Yang's affidavit on its own warrants conditional certification of a collective action. At the conditional certification stage the burden is so low that even one or two affidavits establishing the common plan may suffice. The crux of the Defendants' second opposition to Yang's motion is what they allege is the startling contradiction between her two affidavits. Chiefly, they point to the fact that in Yang's first affidavit, she states she did not know the exact wage rates of other nail technicians, but in her second one, Yang states that she found out through conversations with various coworkers their approximate wage ranges. The Defendants' position is without merit. In the first affidavit, Yang claims not to know the exact wages of the nail technicians with whom she had discussions. In the second affidavit, she does not provide exact wages, but rather the possible ranges of their pay. Yang describes in her second affidavit the circumstances by which she came to have conversations with other nail technicians and provides substantially more detail of those conversations than she did in her first. The additional specificity is not a direct contradiction. And because Yang attests only to the approximate fixed daily rates and the approximate hours worked, her second affidavit does not contain the exact wages of her fellow employees. At best, dividing an estimate of the fixed daily rate by an estimate of hours worked in a day leads only to an approximate, not an exact, wage. Now that Yang has provided significantly more detail in her second affidavit than in her first with regard to the conversations she had, with whom, and under what circumstances. Yang has met her minimal burden. The evidence in Yang's affidavit is sufficient to demonstrate that Yang is similarly situated to nail technicians at Rainbow Nails and that all of them were subject to a common wage policy of being paid at a fixed rate that, when averaged over the hours they actually worked, did not compensate them for minimum wage or overtime, and a common policy of not reimbursing employees for tools of the trade. The Defendants contend that some of the nail technicians Yang claims to have had conversations with may not have been employed during the relevant time period. This is not a barrier to conditional certification. Even if some of the conversations took place prior to the collective action period that the Court authorizes, they still provide probative information about whether a common policy existed. Nor does the fact that conversations took place prior to the period mean that they were not employed in later years. In any event, there is a sufficient number of coworkers identified who worked during the relevant period to justify conditional certification. The collective Yang proposes is limited in terms of type of employees and the workplace location—namely, she seeks to certify a collective that includes only other nail technicians who worked at Rainbow Nails in Astoria for the three years prior to the filing of the Complaint, which amounts to approximately 20 employees. These factors weigh in favor of granting collective certification. Any possible differences between Yang and other employees, such as the number of hours worked or the fixed daily rate, are to be analyzed at subsequent stages of the case. The Court therefore finds it appropriate to conditionally certify a collective of current and former nail technicians employed by Defendants in the three years prior to the filing of the original Complaint. Accordingly, the motion for conditional certification of a collective action is granted. A full-text copy of the District Court's May 16, 2019 Memorandum Order is available at https://tinyurl.com/y39uj2se from Leagle.com. Jun Hua Yang, On behalf of herself and all other employees similarly situated, Plaintiff, represented by Jian Hang -- jhang@hanglaw.com -- Hang & Associates, PLLC & Rui Ma -- rma@hanglaw.com -- Hang & Associates, PLLC. Rainbow Nails Salon IV Inc., d/b/a Rainbow Nails IV & Gina Dang, Defendants, represented by Andrew Brian Stoll -- astoll@stollglickman.com -- Stoll, Glickman & Bellina, LLP. RBC INSURANCE: Faces Class Action Over Vacation, Holiday Pay ------------------------------------------------------------ Canadian Employment Law Today reports that a law firm has filed for certification of a class action lawsuit against RBC Insurance and Aviva General Insurance. The $80-million lawsuit alleges the company's practice of calculating vacation and public holiday pay for commissioned salespeople violated the Employment Standards Act. The class action was filed by Monkhouse Law in Toronto on behalf of plaintiff Kabir Singh, an RBC advisor from 2016 to April 2019. The suit alleges that commissioned salespeople were shortchanged because the vacation and public holiday pay that was paid to employees was based solely on their base salary, rather than total compensation. As a result, those employees are owed substantial back pay. "This practice undercompensates these employees and deprives them of having real vacations," said Andrew Monkhouse -- andrew@monkhouselaw.com -- founder of Monkhouse Law. "These actions undermine the rationale behind providing paid vacation pay in the first place." Allegations have not yet been proven in court. The employee class action dates back to 1993, when RBC Insurance was founded, according to Monkhouse Law. Aviva purchased that company in January 2016. If this class action is certified, all employees who fall under the suit's definition will be members unless they opt out. [GN] RCI HOSPITALITY: Hoffman Sues Over Share Price Drop ---------------------------------------------------- ARI HOFFMAN, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. RCI HOSPITALITY HOLDINGS, INC., and ERIC S. LANGAN, Defendants, Case No. 4:19-cv-01841 (S.D. Tex., May 21, 2019) is a class action on behalf of persons and entities that acquired RCI securities between February 14, 2018 and May 10, 2019, inclusive (the "Class Period"), seeking to pursue remedies under the Securities Exchange Act of 1934 (the "Exchange Act"). On December 11, 2018, the Company filed a Form 12b-25 with the SEC stating it could not timely file its annual report due to "delays in completing the audit of its financial statements for the year ended September 30, 2018." On this news, the Company's share price fell $1.37, or approximately 6%, to close at $22.33 per share on December 12, 2018, on unusually heavy trading volume. On May 10, 2019, RCI stated that it could not timely file its quarterly report with the SEC for the period ended March 31, 2019 due to pending investigations concerning negative articles published about the company in mid- and late 2018. On this news, the Company's share price fell $1.67, or over 7%, to close at $20.48 per share on May 13, 2019, on unusually heavy trading volume. The complaint alleges that Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that the Company engaged in numerous transactions with the CEO, including lending him significant sums of money; (2) that these practices were reasonably likely to lead to regulatory scrutiny of the Company; (3) that, as a result of investigations into the Company's governance, the Company would be unable to timely file its financial statements; and (4) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially false and/or misleading and/or lacked a reasonable basis. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages, says the complaint. Plaintiff Ari Hoffman purchased RCI securities during the Class Period. RCI is a holding company that operates live adult entertainment and/or restaurant and bar operations through its subsidiaries. It has two principal reportable segments: Nightclubs and Bombshells.[BN] The Plaintiff is represented by: Joe Kendall, Esq. KENDALL LAW GROUP, PLLC 3811 Turtle Creek Blvd., Suite 1450 Dallas, TX 75219 Phone: 214-744-3000 Facsimile: 214-744-3015 Email: jkendall@kendalllawgroup.com - and - Lionel Z. Glancy, Esq. Robert V. Prongay, Esq. Lesley F. Portnoy, Esq. Charles H. Linehan, Esq. Pavithra Rajesh, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Phone: (310) 201-9150 Facsimile: (310) 201-9160 RE/MAX HOLDINGS: 3 Antitrust Class Action Complaints Underway ------------------------------------------------------------- RE/MAX Holdings, Inc. is facing three putative class action complaints over alleged violations of federal antitrust law, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2019. In March and April of 2019, three putative class action complaints were filed against National Association of Realtors ("NAR"), Realogy Holdings Corp., HomeServices of America, Inc, RE/MAX Holdings, and Keller Williams Realty, Inc. The first was filed on March 6, 2019, by plaintiff Christopher Moehrl in the Northern District of Illinois. The second was filed on April 15, 2019, by plaintiff Sawbill Strategies, Inc., also in the Northern District of Illinois. The third was filed on April 29, 2019, by plaintiffs Joshua Sitzer and Amy Winger in the Western District of Missouri. The three complaints make substantially similar allegations and seek substantially similar relief. The plaintiffs in all three cases allege that a NAR rule requires brokers to make a blanket, non-negotiable offer of buyer broker compensation when listing a property, resulting in inflated costs to sellers in violation of federal antitrust law. They further allege that the defendant franchisors use their agreements with franchisees to require adherence to the NAR rule in violation of federal antitrust law. Additionally, plaintiffs Joshua Sitzer and Amy Winger allege violations of the Missouri Merchandising Practices Act. Among other requested relief, plaintiffs seek damages against the defendants and an injunction enjoining defendants from requiring sellers to pay the buyer broker. The Company said, "We intend to vigorously defend against all claims." RE/MAX Holdings, Inc. (NYSE: RMAX) is one of the world's leading franchisors in the real estate industry, franchising real estate brokerages globally under the RE/MAX(R) brand, and mortgage brokerages within the U.S. under the Motto Mortgage(R) brand. RE/MAX is a global franchisor of real estate brokerage services with more than 125,000 agents operating in over 110 countries and territories. REAL CARE: Mitchell Seeks OT Pay for Home Health Aids ----------------------------------------------------- The case, ANNETTE MITCHELL on behalf of herself and others similarly situated, the Plaintiff, vs. REAL CARE HOME CARE LLC, and ANISSA HILL, the Defendants, Case No. 4:19-cv-01006 (N.D. Ohio, May 3, 2019), contends that the Defendants' policies and practices violate the Fair Labor Standards Act, as well as the Ohio overtime compensation statute. The Plaintiff worked as a caregiver in people's homes as an employee of Defendants. The Plaintiff performed personal care services including bathing, cooking, cleaning, dish washing and other such activities that were customary and usual at each and every home she worked at. These activities took up the better part of her day, on a daily basis. Defendants' principal place of business is located at 29 Jackson Street, Hubbard, OH 44425. The FLSA, and Ohio law required Defendants to pay overtime compensation to its Home Health Aids. The Defendants unlawfully failed to pay overtime compensation to its Home Health Aids. The Defendants knew, or showed reckless disregard for whether, Plaintiff, the Potential Opt-Ins, and the Ohio Class was entitled to overtime pay under state and/or federal law, the lawsuit says.[BN] Attorneys for the Plaintiff: Christopher J. Lalak, Esq. Hans A. Nilges, Esq. NILGES DRAHER LLC 614 W. Superior Ave., Suite 1148 Cleveland, OH 44113 Telephone: 216 230 2955 E-mail: clalak@ohlaborlaw.com hans@ohlaborlaw.com REWALK ROBOTICS: Court Dismisses W. Yan's Securities Suit --------------------------------------------------------- The United States District Court for the District of Massachusetts issued a Memorandum and Order granting Defendants' Motion to Dismiss in the case captioned WANG YAN, individually and on behalf of all other similarly situated parties, Plaintiff, v. REWALK ROBOTICS LTD., LARRY JASINSKI, AMI KRAFT, AMIT GOFFER, JEFF DYKAN, HADAR RON, ASAF SHINAR, WAYNE B. WEISMAN, YASUSHI ICHIKI, ARYEH DAN, GLENN MUIR, BARCLAYS CAPITAL INC., JEFFERIES LLC, and CANACCORD GENUITY INC., Defendants. Civil Action No. 17-10169-FDS. (D. Mass.). The Defendants moved to dismiss the complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and the Private Securities Litigation Reform Act of 1995 (PSLRA). This is a putative class action alleging violations of Sections 11 and 15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of the Exchange Act of 1934. The consolidated amended complaint alleges that ReWalk, its officers and directors, and the IPO underwriters concealed material information in its IPO registration statement about ReWalk's failure to comply with FDA regulations in violation of the Securities Act. It also alleges that after the IPO, ReWalk and certain officers continued to make material false statements after the initial offering in violation of the Exchange Act. It is undisputed that Yan purchased his shares on September 15 and 17, 2014. The statements alleged to have violated the Exchange Act were made between February 12, 2015, and February 25, 2016. The only statements, therefore, that Yan could have relied on were those made on or before September 17, 2014, that is, those in the registration statement, which the Court has found did not violate the Securities Act. Normally, that would be sufficient to dispose of the Exchange Act claims for lack of standing. Yan contends, however, that he should remain the lead plaintiff in the litigation because his claims are based on a common scheme with the claims of the class. He further contends that the PSLRA does not require that he have standing to assert the Exchange Act claims. And he has moved to amend the complaint, contending that Geller should be added as a named plaintiff because (1) she has standing to pursue the Exchange Act claims (2) her claims are not barred by the statute of limitations and (3) she satisfies Rule 23 requirements of typicality and adequacy. Yan does not have standing to assert claims under the Exchange Act, and cannot cure the deficiency by adding Geller as a named plaintiff. The Exchange Act claims (and the complaint) will therefore be dismissed. Whether Lead Plaintiff Has Standing Based on a Common Scheme The first issue is whether Yan has standing to assert claims under the Exchange Act based on a common scheme to defraud. Yan purchased his shares before, not after, the relevant statements were made and therefore could not have relied on the alleged misstatements. Nonetheless, there is authority providing that class representatives may have standing to assert Exchange Act claims arising from statements made after the share purchase date as long as the statements allegedly made were in furtherance of a common scheme to defraud. The applicability of that principle here, however, is entirely undercut by the manner in which plaintiff structured his complaint. The complaint clearly alleges that the Securities Act claims and the Exchange Act claims are based on different theories: the Securities Act claims are based on an alleged failure to disclose the reason the FDA required the post-market surveillance study, and the Exchange Act claims are based on an alleged failure to disclose the company's difficulties in meeting that requirement. The alleged omissions are not sufficiently similar to constitute a single common scheme extending from September 12, 2014, through February 29, 2016. Whether the PSLRA Permits Yan to Assert Exchange Act Claims Yan further contends that the PSLRA permits him, as a lead plaintiff, to assert claims as to which he does not personally have standing. There is authority holding that a lead plaintiff in an action subject to the PSLRA need not have standing to bring every available claim asserted under the securities laws. The problem here is that Yan does not simply lack standing to sue on every claim; he lacks standing to sue on any remaining claim. Furthermore, standing is not merely an issue of statutory interpretation, but is a constitutional requirement, as well. Yan has cited no case in which a PSLRA lead plaintiff was able to represent the class despite having no standing as to any of the asserted claims. Under the circumstances, the PSLRA cannot confer statutory standing on Yan, and it certainly cannot confer constitutional standing. Accordingly, to the extent that the complaint asserts claims by Yan for violations of the Exchange Act, it will be dismissed. Accordingly, the Defendants' motion to dismiss the Exchange Act claims is deemed renewed, and is granted. A full-text copy of the District Court's May 16, 2019 Order is available at https://tinyurl.com/yy9kubt5 from Leagle.com. Qian Deng, individually and on behalf of all others similarly situated & Narbeh Nathan, individually and on behalf of all others similarly situated, Plaintiffs, represented by Jeffrey C. Block -- jeff@blockesq.com -- Block & Leviton LLP. David Hershlikovitz, individually and on behalf of all others similarly situated, Jackie888, Inc., individually and on behalf of all others similarly situated, Michael C. Kemmerling, individually and on behalf of all others similarly situated & Paul Sislin, individually and on behalf of all others similarly situated, Plaintiffs, represented by Jason M. Leviton -- jason@blockesq.com -- Block & Leviton LLP, pro hac vice & Jeffrey C. Block, Block & Leviton LLP. ReWalk Robotics Ltd., Larry Jasinski, Wayne B. Weisman & Glenn Muir, Defendants, represented by Douglas P. Baumstein -- dbaumstein@whitecase.com -- White & Case, LLP, pro hac vice, Susan L. Grace -- susan.grace@whitecase.com -- White & Case LLP, pro hac vice & Samuel R. Feldman -- samuel.feldman@whitecase.com -- White & Case, LLP. Ami Kraft, Amit Goffer, Jeff Dykan, Hadar Ron, Asaf Shinar, Yasushi Ichiki, Aryeh Dan & Kevin Hershberger, Defendants, represented by Susan L. Grace, White & Case LLP, pro hac vice,Douglas P. Baumstein, White & Case, LLP & Samuel R. Feldman, White & Case, LLP. RICHMOND, VA: Court Narrows Claims in V. White's FLSA Suit ---------------------------------------------------------- The United States District Court for the Eastern District of Virginia, Richmond Division, issued an Opinion granting in part and denying in part Defendant's Motion for Summary Judgment in the case captioned VINCENT WHITE, individually and on behalf of others similarly situated, Plaintiff, v. CITY OF RICHMOND, VIRGINIA, Defendant. Civil Action No. 3:18-cv-504-JAG. (E. D. Va.). In this class action, the plaintiffs allege that the City of Richmond (City) Department of Social Services (DSS) failed to pay them overtime wages in violation of the Fair Labor Standards Act (FLSA). The plaintiffs, current and former family service workers, contend that their supervisors discouraged them from reporting overtime hours, that they worked through lunch, and that they worked nights and weekends to manage their caseloads. Summary Judgment Unpaid Overtime Wages To establish a claim for unpaid overtime wages, the plaintiffs must establish by a preponderance of the evidence (1) that they worked overtime hours without compensation (2) the amount and extent' of the work as a matter of just and reasonable inference and (3) that the City knew of the uncompensated overtime. The City says that the plaintiffs cannot establish that they worked overtime without pay, citing its detailed timekeeping records. But multiple plaintiffs testified that they stopped submitting overtime requests because their supervisors expressed discomfort with or frowned upon overtime hours. Other plaintiffs reported regularly working through lunch. The City's timekeeping records would not reflect those unreported hours. Moreover, summary judgment is not warranted simply because the plaintiffs did not record all of their alleged overtime hours pursuant to the City's official time keeping system. Accordingly, material factual disputes exist as to whether the plaintiffs worked overtime without pay, precluding summary judgment. Second, the plaintiffs present evidence showing the 'amount and extent' of the work 'as a matter of just and reasonable inference.' Multiple plaintiffs report working approximately one to two hours of overtime per week and working during lunch. The plaintiffs' estimates, while certainly subject to dispute and not conclusive, set forth specific facts from which a just and reasonable inference could be drawn. The same factual disputes regarding the City's knowledge of the uncompensated overtime also preclude summary judgment on the issue of the City's willfulness. The plaintiffs say that reporting overtime resulted in a verbal battle with administration to even get paid for it. They also contend that their supervisors and other DSS officials were on notice of their legal obligations, pointing to two previous lawsuits against the City for FLSA violations involving family service workers. Accordingly, a reasonable jury could find that the City "showed reckless disregard for the matter of whether its conduct was prohibited by the FLSA. On-Call Time The plaintiffs assert that the City owes them compensation for on-call time. To determine whether on-call time constitutes compensable work, courts consider whether the employee was 'engaged to wait, which would qualify on-call time as compensable, or waited to be engaged, in which case on-call time would not be compensable.' Courts consider four factors when weighing the level of interference with the employee's private life: (1) whether the employee may carry a beeper or leave home (2) the frequency of calls and the nature of the employer's demands (3) the employee's ability to maintain a flexible `on call' schedule and switch on call shifts and (4) whether the employee actually engaged in personal activities during `on call' time. In this case, the workers' on-call time does not constitute compensable work. The first factor weighs against compensability because the City gives on-call workers cell phones, allowing them to leave home. The second factor weighs slightly against compensability. Scott testified that some days workers may not even get a call, and that the frequency of the calls varies depending on the shift. Similarly, Johnson testified that she did not receive any calls on some nights and that she received between seven and ten calls on weekends. The record does not indicate whether on-call workers may switch shifts or maintain flexible schedules, so the third factor weighs in neither direction. Because workers may engage in personal activities during on-call time, the fourth factor weighs against compensability. The plaintiffs say that on-call time restricts their freedom, but the test is not whether the employee has substantially the same flexibility or freedom she would have if not on call. Because the restrictions placed on the employee do not preclude using the time for personal pursuits, the plaintiffs' on-call time does not constitute compensable work. Thus, the Court dismisses the plaintiffs' claim for on-call overtime wages. Because Campbell and Jordan only assert on-call claims, the Court dismisses them as opt-in plaintiffs. The Court grants in part and denies in part the City's motion for summary judgment. The Court grants the motion as to the plaintiffs' claims for on-call overtime, but denies the motion as to all other claims. A full-text copy of the District Court's May 16, 2019 Opinion is available at https://tinyurl.com/y6d6usyl from Leagle.com. Vincent White, individually and on behalf of others similarly situated, Plaintiff, represented by Blackwell Nixon Shelley, Jr., Shelley & Schulte PC, & Tim Schulte, Shelley & Schulte PC, 1951-D Evelyn Byrd Avenue Harrisonburg VA 22801 City of Richmond, Virginia, Defendant, represented by Richard Earl Hill, Jr., Office of the City Attorney & Wirt P. Marks, IV, Office of the City Attorney. ROUGE VALLEY: Blaney McMurtry Attorneys Discuss Court Ruling ------------------------------------------------------------ David Mackenzie, Esq., and Dominic Clarke, Esq., of Blaney McMurtry LLP, in an article for Mondaq, report that the Canadian insurance market is awakening to the need for cyberinsurance against data loss and privacy breach events. Although there is clearly room for this market to grow, Canadian insurers are routinely issuing cyber coverage to protect against these risks. While insurers have developed loss-experience with first party data breach expense, ransomware and business interruption claims in recent years, knowledge and understanding of third-party risks caused by covered breaches remains limited. This article reviews the status of emerging third-party claim experience. Class actions seeking damages arising out of data loss and privacy breaches are becoming increasingly common. However, all of the actions to date either remain at the certification stage or have been resolved through settlements. As a result, we have yet to see judicial analysis at a common issues trial of the causes of action being advanced and a final determination of damages. Nevertheless, three recent cases are instructive about the potential indemnity obligations of Canadian insurers under the cyber policies they have issued: Condon v. Canada (Condon); 1 Tucci v. Peoples Trust Company (Tucci); 2 and Broutzas v. Rouge Valley Health System (Broutzas).3 1. Litigation and Causes of Action The decisions in Condon, Tucci, and Broutzas provide insight into various potential causes of action, because each arises out of a distinct set of circumstances. Condon pertains to the loss of a hard drive on which personal and financial information of hundreds of thousands of Canadian student loan recipients was stored. Tucci arose out of the hacking of a bank by a malicious third party. Broutzas concerns alleged misappropriation of personal health information by hospital employees and the subsequent sale of that information to vendors of certain financial services (particularly Registered Educational Savings Plans, or "RESPs"). Each of these claims was made the subject of a putative class action (Broutzas was the subject of two distinct class actions). As a result, Canadian courts have been asked to certify causes of action in each set of circumstances. Condon is the subject of a negotiated settlement, which the Federal Court of Canada has approved. The consideration given to the various causes of action in the course of certification -- and in the case of Condon, appeal and settlement as well -- provides insight into the difficulties that class counsel and defence counsel (together with their instructing insurers) face in prosecuting and defending privacy and data breach class actions. The putative class actions advanced many theories of liability: negligence; breach of contract; Intrusion upon Seclusion; Breach of Confidence; waiver of tort/unjust enrichment; and statutory theories of liability. Only three of these, however, have met with a measure of success at the certification stage: negligence; breach of contract; and intrusion upon seclusion. In Canada, in order for certification to be granted, it must merely not be "plain and obvious that the cause of action will fail".4 Provided that there is "some basis in fact" for the existence of a common issue to be tried on behalf of all class members, the action can proceed as a class action.5 These are low threshold standards. Judicial consideration of each of these at the certification stage, however, has highlighted potential weaknesses in each theory and given rise to cautions from the bench with regard to their relative chances of success at trial. This article focuses on the strengths and weaknesses of each of these causes of action. Review of these decisions also highlights the increased importance of "nominal damages" in the context of data/privacy breach class actions. As is outlined below, it is apparent that class counsel will in many, but not all, cases have difficulty in proving class-wide compensatory damages. While success at trial is far from assured, certain causes of action, if proved, can result in awards of nominal damages even in the absence of proven compensable injury. To better understand the exposure facing defendants and their insurers, we will also examine the meaning of "nominal damages" in the Canadian context. 2. Negligence In each of the proceedings the putative class alleged that the defendants were negligent, arguing that they owed a duty of care to class members and failed to meet that duty by falling below the standard of care owed. More particularly, they failed to have adequate safeguards in place to protect the information of class members. Each of the actions asserted that the class members had suffered actual damages as a result. There are three primary pitfalls with respect to the allegations advanced. First, the theory of liability being advanced against many defendants is novel, in that it is not well established in Canada that a plaintiff can sue many defendants for what amounts to pure economic loss in the circumstances of a data/privacy breach. Second, proving actual damages on a class wide basis, as is required in negligence, may be an insurmountable challenge, particularly where the risks involved are primarily prospective identity theft. Finally, even if a negligence cause of action is certified, class counsel must still prove the claim. In Broutzas, the RESP dealer defendants were allegedly negligent for not properly supervising their employees who were allegedly buying confidential personal information of new mothers from hospital employees. That information was used to market RESP investments to those mothers. While the hospital acknowledged that it was in a relationship of proximity to its patients, the RESP dealers argued that the relationship between them and the class members was not sufficiently proximate to give rise to a duty of care. Perell J. characterised that element of the claim as novel and undertook the three-step analysis established in Anns v. Merton London Borough Council6 – foreseeability, proximity, and policy considerations. He determined that there was no duty of care on the part of the RESP defendants as the privacy breach was perpetrated by hospital employees. In the Court's view it was nonsensical to suggest that the RESP dealers could have supervised hospital employees. While commenting primarily on the breach of contract claim, Perrell J. also expressed concerns that the negligence cause of action as proposed, merely mirrored existing statutory obligations and the emerging tort of intrusion on seclusion. He was reluctant to certify any novel negligence action in circumstances where a statute already spoke to the issue. He also expressed concern that the negligence theory was being used as a "backstop" to the intrusion on seclusion claim that was also being advanced. He refused to certify the negligence claim against the RESP dealers and their employees and, as seen below, the entirety of the claim. Standing in contrast to that analysis is the decision in Tucci. There, the defendants provided financial services to members of the putative class and required those members to provide sensitive personal and financial information. The information at issue could clearly be used to harm the class members if lost (foreseeability) and those people were in a direct commercial relationship with the defendants (proximity). Masuhara J. did express concerns regarding the public policy stage of the Anns test, providing: 1) negligence ought not to step in where statutes already govern; and 2) a duty of care should not be imposed that creates indeterminate liability. He found that the theory of liability advanced did not arise because of statutory obligations but out of privacy and security policies the defendant itself had created. Similarly, liability was not indeterminate because it could only be owned to those who were customers of the Defendant and whose information was stolen. This latter conclusion appears controversial, as liability could still be regarded as temporally indeterminate, in that damages for the future risk of identity theft clearly seek to compensate for an indeterminate period of time and amount. While this risk may be real, the law of negligence has rarely been used to impose damages for a potentially perpetual risk. The novel nature of the negligence claims is not the only issue standing in the way of succeeding on a negligence claim. A plaintiff must prove actual loss resulting from the negligence of the defendant. The fact that the claim is being advanced through a class action only complicates matters, as actual damage must be demonstrated on a class-wide basis. Tucci and Condon considered the loss of control over financial information, not personal health information as was the case in Broutzas. This is a critical distinction. In Tucci, it was not plain and obvious that damage to credit reputation cannot constitute a compensable harm. Similarly, out of pocket expenses including credit monitoring and wasted time and inconvenience related to preventing identity theft could constitute a class-wide harm. These concerns were raised at the certification stage in Condon. There the court acknowledged that the allegations advanced against the government could support findings of a duty of care and of a breach of the standard of care, but questioned whether claims for compensable damages were advanced. It concluded they were not: . . . The Plaintiffs have not been victims of fraud or identity theft, they have spent at most some four hours over the phone seeking status updates from the Minister, they have not availed themselves of any credit monitoring services offered by the credit monitoring agencies nor have they availed themselves of the Credit Flag service offered by the Defendant. The certification court held that damages cannot be awarded for merely speculative injuries and declined to certify the negligence issue for trial. Class counsel appealed that decision and it was overturned by the Federal Court of Appeal on the basis that "costs incurred in preventing identity theft" and "out of pocket expenses" could satisfy the damages requirement. While such damages may be capable of proof, actually marshalling this evidence on a classwide basis appears to require judicial approval of some form of aggregate model. Whether this is possible or will be accepted by the courts is unclear. Finally, in many circumstances, actually proving negligence may be difficult. Attacks by hackers, theft of large amounts of data by employees, and even lost laptops are relatively new phenomena. The fact that courts are still grappling with the law of negligence in this context is not surprising. When a person slips and falls, when one car hits another or when professional services fall below the expected standard, the act, error or omission is relatively straightforward and the resulting damages are reasonably identifiable. In data breach cases, numerous questions arise that are not so easily answered. If an organisation has handling and security protocols and an employee breaches those protocols, has the organisation fallen below the required standard? If that same organisation suffers a criminal attack that defeats the cyber-security in place, has it failed to fulfil its obligations? If a stolen laptop is password protected and the data encrypted, has the organisation been negligent? These are all considerable hurdles. 3. Breach of Contract Breach of Contract allegations have met with some success, being certified in both Condon and Tucci. Condon involved contracts in the form of Student Loan Agreements. Multiple sections expressly pertained to the Minister's collection, protection and use of the information provided. The certification court acknowledged that these terms could potentially be relied upon to establish a breach of contract such that it was not plain and obvious that the claim would fail. Similarly, in Tucci there were express contractual terms between the bank and its customers. The exact terms of the contract, however, needed to be determined, as the pleadings asserted that the contract included the defendant's "Website Terms & Conditions" and other terms. Those included statements that the defendant would comply with Federal and provincial privacy legislation, as well as express or implied terms that the defendant would keep information confidential and secure from loss and theft and would not use it except for purposes expressly authorised. The defendant disputed that the contract included all such terms. It further argued that there was no allegation that those terms had been breached; it had promised to take reasonable steps to protect the information and had done so. The fact that a security breach had occurred did not mean that reasonable steps to protect the information had not been taken. Masuhara J. acknowledged these arguments but held that they should be determined at trial. The Court did not accept the defendant's argument that all forms of damages claimed were too remote, on the basis that, even if no actual damages were proved, nominal damages could be awarded if a breach of contract had occurred. An interesting discussion pertained to a limitation of liability clause which the defendant said precluded the claim. The Court found that the limitation of liability clause did not preclude the claims per se; and that its effect was an issue for trial. In Broutzas, the court refused to certify the breach of contract claims advanced. They were premised on the existence of a contract between the patients and the hospitals, which allegedly included terms governing the protection and use of personal information and promising peace of mind. Perell J. ruled that it was "plain and obvious that the putative Class Members [did] not have a claim for breach of contract and warranty". The judge agreed with Rouge Valley's submission that this claim was an artifice by which to sue for breach of statutory obligations. The pleadings simply alleged the duties that the hospitals owed under the Personal Health Information Protection Act, 2004. 8 Moreover, the admission forms and information forms provided to the incoming patients were not contractual in nature, and there was no bargaining between patients and the hospital about preserving the confidentiality and privacy of patient information, which the hospitals were statutorily obliged to do. In short, there was no contract into which terms could be implied and if there had been, those terms were already the subject of non-contractual legal duties. Where a commercial relationship is present, any contract is likely to either be silent on privacy issues or to favour the corporate entity. Commercial contracts, particularly consumer contracts, increasingly feature arbitration, venue and jurisdiction clauses that may restrict the ability of individuals to bring claims before Canadian courts – especially those claims seeking to enforce express or implied terms of the contract itself. While the Supreme Court of Canada, together with lower courts, has questioned the validity of onerous terms (see Douez v. Facebook9 and Heller v. Uber Technologies Inc. 10), reasonable terms may still be enforced. Where that existing contract considers the gathering of information by the organisation, a contract claim will likely be easier to have certified than a negligence claim because there is no requirement to show actual damages. A breach alone should be sufficient to result in nominal damages at minimum. However, a breach of contractual terms must still be shown, and those terms will not necessarily create an obligation to prevent security breaches or misuse of information altogether. As the Defendant in Tucci pointed out, the fact that a security breach has occurred does not mean that reasonable steps to protect the information have not been taken. Like potential class members, organisations that have been hacked are victims of a crime. The standard likely to be imposed by contract is not strict liability. If express contractual terms drafted by the organisation set the standard, that standard is not likely to be high. Again, certification is a low bar, but proving contractual terms existed and were breached may be a significant challenge. On the other hand, there is arguably an important benefit to breach of contract claims: they can result in an award of nominal damages even if no actual loss is proved. However, a passage in Condon suggests the availability of an award of nominal damages may not be a certainty in the class action context:11 [The Defendant] further argues that nominal damages should never be awarded in a class action as it would not favour the plaintiffs but rather their counsel, since the latter would be the only ones effectively standing to benefit financially from the outcome. The Defendant advances an interesting and strong argument on this point but the Plaintiffs' position, although novel in the context of a class proceeding is supported by sufficient authorities that this cause of action should be considered on the merit of the action. In other words, it is not plain and obvious that the cause of action in contract would fail. As to any disproportionate advantages in favour of the Plaintiffs' counsel, the Court will also be better positioned to rule on that issue when it hears it on the merit. Although it must be acknowledged that the court in Tucci certified the question as to whether wasted time could be the basis for awarding aggregate damages, it is open to question whether such damages are "nominal" in nature, or simply a form of compensatory damages arising out of economic loss. In short, like negligence claims, it is not clear that breach of contract claims offer a direct path to recovery for class members in the data and privacy breach context. [GN] SCANA CORP: KBC Files Damages Claim for Breach of Fiduciary Duties ------------------------------------------------------------------ KBC ASSET MANAGEMENT NV, on Behalf of Itself and All Others Similarly Situated, Plaintiff, v. KEVIN MARSH, GREGORY E. ALIFF, JAMES A. BENNETT, JOHN F.A.V. CECIL, SHARON A. DECKER, D. MAYBANK HAGOOD, LYNNE M. MILLER, JAMES W. ROQUEMORE, MACEO K. SLOAN, and ALFREDO TRUJILLO, JIMMY ADDISON, and STEVEN BRYNE, Defendants, Case No. 3:19-cv-01457-MBS, filed in the 5th Judicial Circuit Court of Richland County, South Carolina on May 20, 2019, asserts claims for damages on behalf of former SCANA shareholders as a result of the breaches of fiduciary duties, gross mismanagement, and unjust enrichment perpetrated by the officers and Board members of SCANA Corporation (the "Original Derivative Defendants") in connection with the construction of two nuclear reactors in Fairfield County, South Carolina (the "Nuclear Project"). The Original Derivative Defendants mismanaged the construction project and proceeded to systematically mislead the investing public by concealing the truth surrounding the construction and financing of the Nuclear Project. As a direct and proximate result of their misdeeds, SCANA's value and goodwill suffered substantially, as the Company's management confronted investigations by state and federal authorities, including the Securities and Exchange Commission ("SEC"), and massive civil litigation. On January 2, 2019, SCANA was merged into Dominion Energy, Inc. ("Dominion"), and the shares of SCANA shareholders were exchanged for 0.669 shares of Dominion common stock (the "Merger"). Following the closing of the Merger, the Original Derivative Defendants moved to dismiss the derivative claims filed against them on the grounds that the original plaintiffs in that action lost standing to pursue those claims. The Plaintiff alleges that the Merger does not deprive SCANA shareholders of the right to pursue their original breach of fiduciary duty and related claims as direct claims on behalf of the SCANA shareholders at the time of the Merger, because the pre-Merger conduct of the original Defendants made the Merger with Dominion a fait accompli. The extent of the Original Derivative Defendants' wrongdoing, fraudulent conduct, and breaches of fiduciary duties by failing to loyally oversee the Nuclear Project and by concealing the truth concerning the Nuclear Project's completion, necessitated a corporate rescue, and individual legal protection. A merger was one of the available alternatives that met both those objectives after the Board's allegedly fraudulent schemes. South Carolina law recognizes a single, inseparable fraud when directors cover massive wrongdoing with an otherwise permissible merger. Moreover, Dominion will not pursue the derivative claims because of provisions in the Merger Agreement providing for indemnification of the Original Derivative Defendants. As a result, in these circumstances, Plaintiff's derivative claims survive the Merger and may be pursued as direct class claims as asserted herein, asserts the complaint. Plaintiff KBC Asset Management NV is a former shareholder of SCANA Corporation. Marsh served as CEO and Chairman of the Board of SCANA from December 2011 through December 2017.[BN] The Plaintiff is represented by: Mark D. Chappell, Esq. Graham L. Newman, Esq. CHAPPELL SMITH & ARDEN, P.A. 2801 Devine Street, Suite 300 Columbia, SC 29205 Phone: (803) 929-3600 Facsimile: (803) 929-3604 Email: mchappel@csa-law.com gnewman@csa-law.com - and - Lawrence P. Eagel, Esq. Melissa A. Fortunato, Esq. BRAGAR EAGEL & SQUIRE, P.C. 885 Third Avenue, Suite 3040 New York, NY 10022 Phone: (212) 308-5858 Facsimile: (212) 486-0462 Email: eagel@bespc.com fortunato@bespc.com - and - Deborah Sturman, Esq. STURMAN LLC 600 Third Avenue, Suite 2101 New York, NY 10016 Phone: (212) 367-7017 Facsimile: (917) 546-2544 Email: sturman@sturman.ch SCR MEDICAL: Goodlet Seeks Unpaid Overtime Pay Under FLSA --------------------------------------------------------- TOM GOODLET, on behalf of himself, and all other plaintiffs similarly situated, known and unknown, Plaintiff, v. SCR MEDICAL TRANSPORTATION, INC. Defendant, Case No. 1:19-cv-03389 (N.D. Ill., May 20, 2019) is an action brought under the Fair Labor Standards Act ("FLSA"), the Illinois Minimum Wage Law ("IMWL"), and the Chicago Minimum Wage Ordinance ("CMWO") of the Municipal Code of Chicago. Plaintiff, and members of the Plaintiff Class, on a regular basis worked in excess of 40 hours in a workweek without pay at a rate of time and one-half for all such hours pursuant to the requirements of the federal and state statutes. The Defendant has both in the past and presently, willfully employed members of the Plaintiff Class, including the named Plaintiff, requiring work to be performed during their lunch break without pay for that time. During unpaid meal breaks, Plaintiff and members of the Plaintiff class at times performed work, again to the benefit of the employer, without pay for that time, says the complaint. Plaintiff, TOM GOODLET is an employee driver who performs para-transit driving duties in the Chicagoland area for Defendant. SCR MEDICAL TRANSPORTATION, INC., is a company that serves as a contractor of para-transportation services for private and public entities.[BN] The Plaintiff is represented by: John William Billhorn, Esq. BILLHORN LAW FIRM 53 West Jackson Blvd., Suite 401 Chicago, IL 60604 Phone: (312) 853-1450 SEAWORLD: $11.5MM Passes Class Action Settlement Gets Court OK -------------------------------------------------------------- Gabrielle Russon, writing for Orlando Sentinel, reports that a federal judge gave final approval to a $11.5 million class action settlement agreement after a group sued when their SeaWorld passes were automatically renewed without their permission. "The Settlement was entered into in good faith, is fair, reasonable and adequate," wrote U.S. District Judge Mary Scriven of the Middle District of Florida in her order approving it after four years of litigation. Out of the $11.5 million, about $2.88 million is marked for attorney costs, and the three plaintiffs who filed the lawsuit will receive $10,000 each. Nearly 132,000 people who purchased one-year E-Z Pay annual passes at SeaWorld's theme parks in Florida, Texas, Virginia and California are eligible, court documents have said. People will receive at least $31.75 for each EZ Pay pass purchased, a court filing said, noting the checks will be automatically sent out and people are not required to do anything to receive the money. An estimated 38,000 people who made an EZ Pay pass payment with their debit cards after December 2013 could also get about $13 each, court documents said. The payments could be sent out as soon as 40 days after the final settlement date. SeaWorld denied any wrongdoing but agreed to the settlement to avoid an expensive trial, court documents said. One of the plaintiffs, Jason Herman, of Pinellas County, had bought annual passes for SeaWorld Orlando and Busch Gardens Tampa, according to the lawsuit. Herman paid $35.40 for an initial payment in March 2013 and then was charged 11 monthly payments of $35.40. The pass was paid off in February 2014, but SeaWorld kept charging Herman's credit card until September 2014. The theme park company wouldn't reimburse him for the additional payments when he asked in October 2014, the lawsuit said. SeaWorld and Herman's attorney were not immediately available for comment. [GN] SHARP REES-STEALY: Nace Seeks Unpaid Wages, Rest Period Premiums ---------------------------------------------------------------- MICHAEL NACE and JEFFREY LOVEALL, on behalf of themselves and others similarly situated, Plaintiffs, v. SHARP REES-STEALY MEDICAL GROUP, INC.; SHARP HEALTHCARE; and DOES 1-10, inclusive, Defendants, Case No. 37-2019-00026223-CU-OE-CTL (Cal. Super. Ct., San Diego Cty., May 21, 2019) seek relief on behalf of Plaintiffs and putative Class Members for unpaid wages, meal and rest period premium wages, statutory penalties, interest, and attorneys' fees and costs, pursuant to Labor Code; Industrial Welfare Commission ("IWC"); and Code of Civil Procedure. For at least four years prior to the filing of this action and continuing until the present ("Class Period"), SHARP has had a policy and practice of failing to pay its mid-level medical providers for performing pre- and post-shift duties as required by law. Furthermore, during the Class Period, SHARP has had a policy and practice of failing to provide off-duty meal periods and rest periods to its mid-level medical providers as required by law. SHARP also has not provided Plaintiffs and Class Members with adequate itemized wage statements. The wage statements provided by SHARP fail to state the corresponding number of hours worked at each hourly rate, correct gross and net wages earned, and meal and rest period premium wages, says the complaint. Plaintiffs work as non-exempt mid-level medical providers for SHARP's Urgent Care Practice Group ("UC Group") in California. SHARP REES-STEALY MEDICAL GROUP, INC. and SHARP HEALTHCARE ("SHARP") provide medical services in the State of California.[BN] The Plaintiffs are represented by: HUNTER PYLE, ESQ. VINCENT CHEN, ESQ. HUNTER PYLE LAW 428 Thirteenth Street, Eleventh Floor Oakland, CA 94612 Phone: (510) 444-4400 Facsimile: (510) 444-4410 Email: hunter@hunterpylelaw.com; vchen@hunterpylelaw.com SPARK ENERGY: Appeal in Gillis Class Suit Still Pending ------------------------------------------------------- Spark Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 7, 2019, for the quarterly period ended March 31, 2019, that the U.S. Court of Appeals for the Third Circuit has not yet ruled on the appeal made in the case, Gillis et al. v. Respond Power, LLC. Gillis et al. v. Respond Power, LLC is a purported class action lawsuit that was originally filed on May 21, 2014 in the Philadelphia Court of Common Pleas but was later removed to the United States District Court for the Eastern District of Pennsylvania. On September 15, 2014, the plaintiffs filed an amended class action complaint seeking a declaratory judgment that the disclosure statement contained in Respond Power, LLC's variable rate contracts with Pennsylvania consumers limited the variable rate that could be charged to no more than the monthly rate charged by the consumers' local utility company and alleged claims of deceptive conduct in violation of Pennsylvania Unfair Trade Practices and Consumer Protection Act, negligent misrepresentation, fraudulent concealment, and breach of contract and of the covenant of good faith and fair dealing by charging rates above the utility. The amount of damages sought is not specified. By order dated August 31, 2015, the district court denied class certification. The plaintiffs appealed the district court's denial of class certification to the United States Court of Appeals for the Third Circuit and that court vacated the district court's denial of class certification and remanded the matter to the district court for further proceedings. On July 16, 2018, the district court granted Respond Power LLC's motion to dismiss the Plaintiff's class action claims. Plaintiffs filed their notice of appeal to the Third Circuit Court on August 7, 2018. The Third Circuit has declined to hear oral arguments on this matter but has not yet ruled on this appeal. The Company believes it has full indemnity coverage for any actual exposure in this case at this time. Spark Energy, Inc., through its subsidiaries, operates as an independent retail energy services company in the United States. It operates through two segments, Retail Electricity and Retail Natural Gas. The company engages in the retail distribution of electricity and natural gas to residential and commercial customers. The company was founded in 1999 and is headquartered in Houston, Texas. SPARK ENERGY: Confidential Settlement Reached in Richardson Suit ---------------------------------------------------------------- Spark Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 7, 2019, for the quarterly period ended March 31, 2019, that a confidential settlement has been reached in Richardson et. al. v. Verde Energy USA, Inc. Richardson et. al. v. Verde Energy USA, Inc. is a purported class action filed on November 25, 2015 in the United States District Court for the Eastern District of Pennsylvania alleging that the Verde Companies violated the Telephone Consumer Protection Act ("TCPA") by placing marketing calls using an automatic telephone dialing system ("ATDS") or a prerecorded voice to the purported class members' cellular phones without prior express consent and by continuing to make such calls after receiving requests for the calls to cease. Following discovery and dispositive motions, the Verde Companies received a favorable ruling on summary judgment with the court agreeing with the Verde Companies that the call system used in this case was not an ATDS as defined by the TCPA. Plaintiffs subsequently amended their petition eliminating theirs ATDS claim and including a class based on failure to comply with the National Do Not Call registry. As part of an agreement in connection with the acquisition of the Verde Companies, the original owners of the Verde Companies are handling this matter. The parties have reached a confidential settlement in this matter that will be paid in the second quarter of 2019. The Company believes it has full indemnity coverage for the settlement exposure in this case. Spark Energy, Inc., through its subsidiaries, operates as an independent retail energy services company in the United States. It operates through two segments, Retail Electricity and Retail Natural Gas. The company engages in the retail distribution of electricity and natural gas to residential and commercial customers. The company was founded in 1999 and is headquartered in Houston, Texas. SPARK ENERGY: Discovery Underway in Veilleux Case ------------------------------------------------- Spark Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 7, 2019, for the quarterly period ended March 31, 2019, that discovery is still ongoing in the class action suit entitled, Katherine Veilleux, et al. v. Electricity Maine LLC, Provider Power, LLC, Spark HoldCo, LLC, Kevin Dean, and Emile Clavet. Katherine Veilleux, et. al. v. Electricity Maine LLC, Provider Power, LLC, Spark HoldCo, LLC, Kevin Dean, and Emile Clavet is a purported class action lawsuit filed on November 18, 2016 in the United States District Court of Maine, alleging that Electricity Maine, LLC ("Electricity Maine"), an entity acquired by Spark Holdco in mid-2016, enrolled and re-enrolled customers through fraudulent and misleading advertising, promotions, and other communications prior to and following the acquisition. Plaintiffs allege claims under the Racketeer Influenced and Corrupt Organizations (RICO), the Maine Unfair Trade Practice Act, civil conspiracy, fraudulent misrepresentation, unjust enrichment and breach of contract. Plaintiffs seek damages for themselves and the purported class, rescission of contracts with Electricity Maine, injunctive relief, restitution, and attorney's fees. Discovery is ongoing in this matter. Spark HoldCo and Electricity Maine intend to vigorously defend this matter and the allegations asserted therein, including the request to certify a class. Electricity Maine and Spark HoldCo have also filed a motion to compel arbitration of certain Plaintiffs' claims as some of the applicable Terms of Service contain an arbitration provision and class action waiver. The Company believes it has full indemnity coverage for any actual exposure in this case at this time. No further updates were provided in the Company's SEC report. Spark Energy, Inc., through its subsidiaries, operates as an independent retail energy services company in the United States. It operates through two segments, Retail Electricity and Retail Natural Gas. The company engages in the retail distribution of electricity and natural gas to residential and commercial customers. The company was founded in 1999 and is headquartered in Houston, Texas. SPARK ENERGY: Mediation Ongoing in Jurich Class Action ------------------------------------------------------ Spark Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 7, 2019, for the quarterly period ended March 31, 2019, that the parties in the class action suit entitled, Jurich v. Verde Energy USA, Inc., are participating in mediation. Jurich v. Verde Energy USA, Inc., is a class action originally filed on March 3, 2015 in the United States District Court for the District of Connecticut and subsequently re-filed on October 8, 2015 in the Superior Court of Judicial District of Hartford, State of Connecticut. The Amended Complaint asserts that the Verde Companies charged rates in violation of its contracts with Connecticut customers and alleges (i) violation of the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. Sections 42-110a et seq., and (ii) breach of the covenant of good faith and fair dealing. Plaintiffs are seeking unspecified actual and punitive damages for the class and injunctive relief. The parties have exchanged initial discovery. On December 6, 2017, the Court granted the plaintiffs’ class certification motion. Mediation is scheduled in May 2019. Spark Energy said, "As part of an agreement in connection with the acquisition of the Verde Companies, the original owners of the Verde Companies are handling this matter. The Company believes it has full indemnity coverage for any actual exposure in this case at this time." Spark Energy, Inc., through its subsidiaries, operates as an independent retail energy services company in the United States. It operates through two segments, Retail Electricity and Retail Natural Gas. The company engages in the retail distribution of electricity and natural gas to residential and commercial customers. The company was founded in 1999 and is headquartered in Houston, Texas. SPERIAN ENERGY: I. Brady's ICFA Suit Transferred to C.D. Ill. ------------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, issued a Memorandum Opinion and Order granting Defendant's Motion to Transfer Suit in the case captioned INTIRA BRADY and ROBERT LUKASZYK, individually and on behalf of all others similarly situated, Plaintiffs, v. SPERIAN ENERGY CORPORATION, Defendant. No. 18 C 6968. (N.D. Ill.). Sperian moves under 28 U.S.C. Section 1404(a) to transfer the suit to the Central District of Illinois. In this diversity suit on behalf of themselves and a putative statewide class, Intira Brady and Robert Lukaszyk allege that Sperian Energy Corporation violated the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), and state common law in connection with its sale of electricity to them. The Plaintiffs allege that Sperian failed to disclose that it would roll them over to a variable rate plan that is more expensive than public utilities' electricity service. Plaintiffs claim that Sperian's misleading disclosures about its pricing and the transition from the fixed rate plan to the variable rate plan violate the ICFA and constitute common law fraud and unjust enrichment. The Plaintiffs brought a breach of contract claim in their original complaint but abandoned it in the operative complaint. Sperian moves under 28 U.S.C. Section 1404(a) to transfer this case to the Central District of Illinois pursuant to the Customer Agreement's forum selection clause.The forum selection clause provides: This Agreement shall be governed by and construed, enforced and performed in accordance with the laws of Illinois and venue shall be in Sangamon County, Illinois, which is located in the Central District. Section 1404(a) states: For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented. Where a valid forum selection clause governs a suit, the clause should be given controlling weight in all but the most exceptional cases and the party defying the forum-selection clause bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted. Accordingly, the court first determines whether the Customer Agreement's forum selection clause governs this suit and then, applying the standard that follows from that determination, evaluates whether transfer is warranted. Whether the Forum Selection Clause Applies to This Suit Determining whether the forum selection clause applies to this suit requires interpreting the clause under the law designated in the Customer Agreement's] choice of law clause. The Customer Agreement selects Illinois law, so Illinois law governs interpretation of the clause. Illinois law honors straightforward terms with understandable meanings in a forum selection clause. Put somewhat differently, forum selection clauses apply not merely to contract claims involving the terms of the contract in which the clause appears, but also to other claims that are otherwise connected to the contract, such as tort claims arising from the contract. The Plaintiffs' ICFA, fraud, and unjust enrichment claims require interpretation of the Customer Agreement to determine, for example, whether and how Sperian could transfer fixed rate customers into variable rate plans, and whether Sperian had unlimited discretion to set the variable rate. The Plaintiffs' abandonment of their contract claim has no bearing on whether the forum selection clause applies, for where the relationship between the parties is contractual, the pleading of alternative non-contractual theories of liability should not prevent enforcement of such bargain as to the appropriate forum for litigation. Indeed, the operative complaint's extensive focus on the Customer Agreement's terms, confirms that interpretation of the Agreement is central to Plaintiffs' claims and therefore that those claims fall within the forum selection clause's ambit. The Plaintiffs respond that the forum selection clause no longer applies because the Customer Agreement expired along with their initial fixed rate plan and their claims concern only the variable rate plan. The court need not decide when the Agreement expired because the forum selection clause applies to Plaintiffs' claims even if the Agreement expired before Sperian completed its allegedly tortious conduct. As a result, the forum selection clause applies even if the Agreement expired along with the expiration of Plaintiffs' fixed rate plan. In sum, because the Customer Agreement's expiration does not render the forum selection clause ineffective, and because the court must construe the Agreement to resolve Plaintiffs' claims, the forum selection clause applies to those claims. Whether Transfer Is Appropriate Under 28 U.S.C. Section 1404(a) The conclusion that the Customer Agreement's forum selection clause applies to Plaintiffs' claims does not end the analysis, for even where a forum selection clause governs, the court must consider whether it is overridden by the public interest factors that ordinarily apply under Section 1404(a). The public interest factors are the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; and the interest in having the trial of a diversity case in a forum that is at home with the law, as well as the avoidance of unnecessary problems in conflicts of laws or in the application of foreign law and the unfairness of burdening citizens in an unrelated forum with jury duty. Because those factors are rarely strong enough to override the parties' preselected forum, the practical result is that forum-selection clauses should control except in unusual cases. The Plaintiffs' sole argument against transfer to the Central District of Illinois is that the forum selection clause does not apply to their claims, so they have forfeited any argument that the Section 1404(a) public interest factors preclude transfer. Because Plaintiffs have not identified a single public interest to justify overriding the contractual choice of forum, transfer to the Central District of Illinois under Section 1404(a) is appropriate. A full-text copy of the District Court's May 16, 2019 Memorandum Opinion and Order is available at https://tinyurl.com/y2htoemt from Leagle.com. Intira Brady, individually and on behalf of all others similarly situated, Plaintiff, represented by Jamie Elisabeth Weiss, Quantum Legal LLC, 513 Cental Avenue, Suite 300, Highland Park, IL 60035, Jonathan Shub -- jshub@kohnswift.com -- Kohn, Swift & Graf, P.C., Richard J. Burke, Quantum Legal LLC, Zachary A. Jacobs, Quantum Legal LLC, 513 Cental Avenue, Suite 300, Highland Park, IL 60035& Kevin Laukaitis -- klaukaitis@kohnswift.com -- Kohn, Swift & Graf, P.C. Robert Lukaszyk, individually and on behalf of all others similarly situated, Plaintiff, represented by Richard J. Burke, Quantum Legal LLC. Sperian Energy Corporation, Defendant, represented by Todd Philip Stelter -- tstelter@hinshawlaw.com -- Hinshaw & Culbertson LLP. STANCE, INC: Website not Accessible to Blind People, Olsen Says --------------------------------------------------------------- In the case, THOMAS J. OLSEN, Individually and on behalf of all other persons similarly situated, the Plaintiff, vs. STANCE, INC., the Defendant, Case No. 1:19-cv-02643 (E.D.N.Y., May 5, 2019), the Plaintiff, who is legally blind, brings this civil rights action against Defendant for its failure to design, construct, maintain, and operate its website, www.stance.com, to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired people. The Defendant is an online retailer of clothing for men and women. Through its Website, it sells socks and under garments for men, women and children. Defendant also provides an online subscription service that allows consumers to subscribe to monthly shipments of socks or underwear. It also sells its products through third party retailers throughout the country.[BN] Attorneys for the Plaintiff: Christopher H. Lowe, Esq. Douglas B. Lipsky, Esq. LIPSKY LOWE LLP 630 Third Avenue, Fifth Floor New York, NY 0017-6705 Telephone: 212 392 4772 E-mail: chris@lipskylowe.com doug@lipskylowe.com STARBUCKS CORP: George Sues Over Exposure to Toxic Chemicals ------------------------------------------------------------ Christopher George, Jessica Chandra, Lisa Jame, Chelsea Maley, April Boddie, Mickael Louis, Eduardo Leach, Josh Folan, Logan Vairo, and Basma Attieh, on behalf of themselves and a class of similarly situated individuals, Plaintiffs, v. STARBUCKS CORPORATION (Lb/a STARBUCKS COFFEE COMPANY, Defendant, Case No. 653015/2019 (N.Y. Sup. Ct., New York Cty., May 21, 2019) seek redress in their individual capacities and on behalf of a Class consisting of similarly situated consumers, who were exposed to the toxic chemicals. Starbucks has built itself into one of the most recognizable brands in the world by selling an image of a company that cares about its products and its customers--and it asks its customers to pay a hefty premium for its products as a result. The reality is a far different story. Starbucks stores throughout Manhattan have for many years been permeated with a toxic pesticide called Dichlorvos (2,2-dichlorovinyl dimethyl phosphate or "DDVP"), which is highly poisonous and completely unfit for use in proximity to food, beverages and people. Starbucks knows about the poisonous qualities of DDVP and knows that it has been used in Starbucks' stores throughout Manhattan, but has neither taken appropriate action to stop its use nor informed customers about the dangerous conditions to which they have been unwittingly being exposed. In doing so, Starbucks has knowingly put its customers' well-being at risk, says the complaint. DDVP is an active ingredient emitted into the air by products called "No-Pest Strips," which are only intended to be used in unoccupied structures to rid such structures of vermin, bugs and insects. However, they are explicitly not to be used anywhere human beings are present, and especially in situations where the pesticide could come into contact with food and/or drinks. On numerous occasions over the last several years, Starbucks' employees and third-party exterminators have informed regional and district management, both verbally and in writing, about the improper and dangerous use of No-Pest Strips throughout stores in Manhattan. Nonetheless, despite these complaints, Starbucks has continued to allow No-Pest Strips to be used in its Manhattan stores - left to contaminate the food and beverages that Starbucks sells to consumers as the most premium products available. Needless to say, Starbucks has closely held this information and has not disclosed to the public that DDVP has poisoned the environment in its stores. Similarly, Plaintiffs were aware of the statements and advertisements from the Company equating the Starbucks experience with a safe and clean environment in which its customers could spend time enjoying these so-called premium products. As a result of these statements and advertisements, Plaintiffs expected that they were purchasing premium products in a safe, clean environment; but Starbucks concealed that that was not what they were actually selling. Plaintiffs did not get what they bargained for. What Plaintiffs did not, and could not know, however, is that Starbucks' statements about its so-called premium products were knowingly false and misleading. Contrary to what Starbucks' advertising claimed, the Company allowed its employees to use a poisonous pesticide in its stores knowing DDVP was toxic, and potentially lethal, to its customers. As a result of Starbucks' misleading conduct, upon information and belief, Plaintiffs were exposed to a dangerous amount of a poison in the air they breathed throughout their time in the Company's stores in Manhattan, says the complaint. Plaintiffs all purchased Starbucks products at Starbucks stores in Manhattan throughout the relevant time period. Starbucks owns and operates a global chain of coffee shops comprising over 13,000 stores in more than 70 countries.[BN] The Plaintiffs are represented by: Douglas H. Wigdor, Esq. David E. Gottlieb, Esq. Renan F. Varghese, Esq. WIGDOR LLP 85 Fifth Avenue New York, NY 10003 Phone: (212) 257-6800 Facsimile: (212) 257-6845 Email: dwigdor@wigdorlaw.com dgottlieb@wigdorlaw.com rvarghese@wigdorlaw.com STARWOOD: Israeli Bondholders File Class Action ----------------------------------------------- Keith Larsen, writing for The Wall Street Journal, reports that Starwood Capital Group is facing allegations that it misled investors about the risks of its Israeli bonds that backed struggling shopping centers in the U.S. The lawsuit stems from the struggles facing Starwood's mall portfolio, where vacancy rates have increased and net operating income dipped, according to Wall Street Journal. It also adds to the challenges facing investors who bought debt in the once booming Israeli-bond market as the market has now soured. Two groups of bond investors, known as Oporto Securities Distribution, filed the class-action lawsuit on March 24, alleging Starwood failed to properly disclose risks involved in the debt, according to the Journal. The lawsuit claims the damages total 74 million shekels or $21 million. The bonds, which are backed by seven malls and trade in Tel Aviv, have fallen almost 50 percent in price since they were first offered in March 2018. The investors are also suing S&P Global Ratings' Israeli subsidiary, where it alleges that a ratings report failed to state that Starwood might not be able to repay certain debtors, according to the Journal. Miami Beach-based Starwood bought a portfolio of malls in California, Indiana, Ohio and Washington state from Westfield Group in 2013. It then refinanced the portfolio by raising 910 million shekels (about $250 million) on the Israeli bond market. Starwood said in a statement that the allegations are without merit, according to the Journal. A number of real estate firms such as Extell Development, Delshah Capital and GFI Real Estate Limited turned to the Israeli bond market, where financing was cheaper than in the U.S. In recent months, that market has taken a turn, and bonds issued by American companies in Israeli have seen values fall at unprecedented rates. [GN] STE-MARTHE-SUR-LE-LAC: Residents Mull Class Action Over Flooding ---------------------------------------------------------------- Christopher Curtis, writing for Montreal Gazette, reports that before the breach, Brossard was on the front lines, stacking sandbags to reinforce the dike at the end of his street. He says he noticed the structure felt waterlogged. "My feet sank into the mud," said Brossard. "I mean, it didn't feel steady at all. You could tell something was wrong, you could tell it might not hold for much longer." He was right. As waves from the Lake of Two Mountains crashed against the structure Saturday, April 27, a small breach in the dike quickly turned into a 70-foot hole, flooding one-third of the city. For at least 18 months, the city of Ste-Marthe-sur-le-Lac has known its dikes needed major repairs. Mayor Sonia Paulus requested funding to modernize the 43-year-old structure in 2015, but work was only scheduled to start next fall. And reports suggest the city may have known of serious problems with the dike as early as 10 years ago. Frustrated citizens say they want to sue the city for negligence. Brossard said he might join a class-action lawsuit against the city. His neighbour, Martin Lachapelle, says the lawsuit isn't just about recouping the homes that were lost in the flood. "People could have died because someone didn't do their job," said Lachapelle. "The water was ice cold, it's a miracle no one got caught in it and froze to death. "Had it breached at 3 a.m., when everyone was asleep, this would be a much more tragic story." Lachapelle says he would join a class-action suit if one is filed. On the night of the flood, Jason Meunier drove his bulldozer down 22nd Ave., putting people in the vehicle's steel shovel and hoisting it above the water as he drove to safety. "One woman, she must have been 70, was in ice water up to her chest," he said. "Her little dog was swimming next to her. It could have been tragic." Meunier says the water came so fast, some people had to crawl out of their car windows and swim to safety. Mayor Paulus said on April 30 that the dike had been inspected by city engineers just before the water started to rise. "There was no negligence . . . we did everything we could," the mayor said. "We had asked the government to approve work on the dike in 2015 and we were about to start that work." Paulus said she tried to expedite repairs on the structure, but the process of getting government approvals and opening the project to public bids takes time. If there's a silver lining, it's that water levels in the area are stabilizing and could soon start to fall back. Though the mayor didn't want to look too far ahead, she says the city will seek federal aid dollars in hopes of bringing some relief to the embattled town. But that's cold comfort for some residents. Lyne Gervais lives in a trailer park in the low-lying part of town. Like so many of her neighbours, her mobile home was hit hard by the flood. "(The city) knew about this for 10 years and did nothing," Gervais said. "Insurance won't cover an act of God, but this is no act of God. It's human error. The dike failed." After building two emergency dikes and beginning work on a third, first-responders started ferrying people to their homes to grab personal effects on April 30. Aside from the 125 homes under water, about 880 homes were flooded and another 1,400 evacuated Saturday, April 27. Deux-Montagnes—Sainte-Marthe-sur-le-Lac fire chief Norbert Vendette said none of those 2,400 homes will have electricity, running water or garbage pickup for the foreseeable future. Anyone whose home was evacuated but didn't get flooded will have to have it inspected by a master electrician and the fire department, Vendette said. Public health officials say any running water in the lakeside area is considered contaminated. Sewers are backing up and waste water has seeped into people's basements, yards and into the lake. Darlene Ratelle says it feels like she's trapped in a nightmare. Her mobile home is submerged, her husband -- who has multiple sclerosis -- is in long-term care, and even when the floodwater recedes, she probably won't be able to sleep in her own bed for months. "If this is a bad dream, I'm anxious to wake up," said Ratelle, who is staying with loved ones. "I don't know if my home is a total loss, my partner can't help me and I'm probably going to have to start all over. That isn't easy at my age." [GN] STONEWATER ROOFING: Coker Sues Over Unpaid Overtime --------------------------------------------------- Jason Coker, on behalf of himself and all others similarly situated v. Stonewater Roofing, Ltd. Co., Case No. No. 19-cv-00211, (E.D. Tex., May 10, 2019) seeks recovery of unpaid overtime wages under the Fair Labor Standards Act. Stonewater Roofing is a residential and commercial roofing company doing business in Tyler, Longview and Plano, Texas where Coker worked as a Project Manager. He claims to be misclassified as an independent contractor, thus denied overtime compensation for hours worked over 40 in a work week. [BN] Plaintiff is represented by: William S. Hommel, Jr. HOMMEL LAW FIRM 1404 Rice, Road, Suite 200 Tyler, TX 75703 Tel: (903) 596-7100 Fax: (469) 533-1618 Email: bhommel@hommelfirm.com SUNEDISON INC: June 17 Class Action Opt-Out Deadline Set -------------------------------------------------------- UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK In re: SunEdison, Inc. Securities Litigation This Document Relates To: Horowitz et al. v. SunEdison, Inc. et al., Case No. 1:16-cv-07917-PKC Civil Action No. 1:16-md-2742-PKC SUMMARY NOTICE OF PENDENCY OF CLASS ACTION To: (1) all persons and entities who purchased or otherwise acquired shares of SunEdison, Inc. ("SunEdison") common stock between September 2, 2015 and April 4, 2016, and were damaged thereby (the "Exchange Act Subclass"); and (2) all persons and entities who purchased or otherwise acquired shares of SunEdison preferred stock between August 18, 2015 and November 9, 2015, inclusive, pursuant or traceable to the registered public offering on or about August 18, 2015, and were damaged thereby (the "Securities Act Subclass," and together with the Exchange Act Subclass, the "Class"). YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the Southern District of New York (the "Court") that the above-captioned action (the "Action") has been certified to proceed as a class action on behalf of the Class consisting of two distinct subclasses, as defined above, except for certain persons and entities who are excluded from the Class by definition as set forth in the full printed Notice of Pendency of Class Action (the "Notice"). Please note: at this time, there is no judgment, settlement, or monetary recovery. IF YOU ARE A MEMBER OF THE CLASS, YOUR RIGHTS WILL BE AFFECTED BY THIS ACTION. The full printed Notice is currently being mailed to known potential members of the Class ("Class Members"). If you have not yet received the full printed Notice, you may obtain a copy of the Notice by downloading it from www.SunEdisonSecuritiesLitigation.com, or by contacting the Administrator by toll-free phone at 1‑866-887-2962, by email at info@SunEdisonSecuritiesLitigation.com, or in writing at: In re SunEdison, Inc. Securities Litigation c/o Analytics Consulting P.O. Box 2007 Chanhassen, MN 55317-2007 Inquiries, other than requests for the Notice, may be made to the following representative of Class Counsel: Adam Hollander, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas New York, NY 10020 1-800-380-8496 If you are a Class Member, you have the right to decide whether to remain a member of the Class. If you want to remain a member of the Class, you do not need to do anything at this time other than to retain your documentation reflecting your transactions and holdings in SunEdison common stock and SunEdison preferred stock. If you are a Class Member and do not exclude yourself from the Class, you will be bound by the proceedings in this Action, including all past, present, and future orders and judgments of the Court, whether favorable or unfavorable. If you move, or if the Notice was mailed to an old or incorrect address, please send the Administrator written notification of your new address. If you ask to be excluded from the Class or one of the subclasses, you will not be bound by any order or judgment of this Court in this Action as pertains to the Class or the subclass from which you choose to be excluded; however, you will not be eligible to receive a share of any money which might be recovered for the benefit of the Class or the subclass from which you request exclusion. Please note, if you decide to exclude yourself from the Class or one of the subclasses, you may be time-barred from asserting the claims covered by the Action by a statute of repose and your claims could be dismissed. To exclude yourself from the Class or one of the subclasses, you must submit a written request for exclusion postmarked no later than June 17, 2019, in accordance with the instructions set forth in the full printed Notice. Pursuant to Rule 23(e)(4) of the Federal Rules of Civil Procedure, it is within the Court's discretion as to whether a second opportunity to request exclusion from the Class or one of the subclasses will be allowed in the event there is a settlement or judgment in the Action. Further information regarding this notice may be obtained by writing to the Administrator at the address provided above. PLEASE DO NOT CONTACT THE COURT REGARDING THIS NOTICE. BY ORDER OF THE COURT: United States District Court for the Southern District of New York [GN] SUNPOWER CORP: Tobar Suit Alleges FLSA Violations ------------------------------------------------- Manuel Tobar and Christopher Heard, on behalf of themselves and all others similarly situated v. Sunpower Corporation and Does 1-20, inclusive, Case No. 2:19-cv-02328 (C.D. Calif., March 27, 2019), is brought against the Defendants for violations of the Fair Labor Standards Act. The Defendant violated the FLSA by failing to provide rest and meal periods, pay minimum wage, overtime wages and all hours worked and reimburse business expenses, says the complaint. Additionally, the Defendants have also failed to provide accurate wage statements. The Plaintiff Tobar worked for the Defendant as a non-exempt installer technician from April 2016 until about April 2018, and worked as operation and maintenance worker for the Defendant from April 2018 until his separation in May 2018. The Plaintiff Heard worked for the Defendant first as a non-exempt installer technician and then as a non-exempt inspection coordinator from May 2016 until September 2018. The Defendant designs, manufactures, and installs, among other things, solar panels inside California and across the United States. [BN] The Plaintiff is represented by: Ashkan Shakouri, Esq. SHAKOURI LAW FIRM 11601 Wilshire Blvd., Fifth Floor Los Angeles, CA 90025 Tel: (310) 575-1827 Fax: (310) 575-1890 E-mail: ash@shakourilawfirm.com SUNRUN INC: Loftus Suit Alleges TCPA Violation ---------------------------------------------- William Loftus and Sidney Naiman, individually and on behalf of all others similarly situated v. Sunrun Inc., Case No. 3:19-cv-01608 (N.D. Calif., March 27, 2019), is brought against the Defendant for violation of the Telephone Consumer Protection Act. The Defendant is liable for TCPA violation by making unsolicited calls to the Plaintiffs using an automatic telephone dialing system causing interruption, invasion of privacy, annoyance, harassment and waste of both the cellular telephones' battery and the Plaintiffs' time. The Plaintiff Loftus is an individual residing in Ventura County, California. The Plaintiff Naiman is an individual residing in Maricopa County, Arizona. The Plaintiffs never consented to receive calls from Defendant. The Defendant sells goods and services related to solar energy and do marketing through Automatic Telephone Dialing. Its principal place of business is 595 Market Street, 29th Floor, San Francisco, California 94105. [BN] The Plaintiffs are represented by: Jon B. Fougner Esq. 600 California Street, 11th Floor San Francisco, CA 94108 Tel: (415) 577-5829 Fax: (206) 338-0783 E-mail: jon@fougnerlaw.com TATE & KIRLIN: Certification of Class Sought in Menear Suit ----------------------------------------------------------- The Plaintiff in the lawsuit titled JAMES MENEAR, Individually and on Behalf of All Others Similarly Situated v. TATE & KIRLIN ASSOCIATES INC., Case No. 2:19-cv-00633 (E.D. Wisc.), moves the Court to certify the class described in the complaint, and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). 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, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff asserts that he is obligated to move for class certification to protect the interests of the putative class. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff avers. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, 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 TFORCE LOGISTICS: Lim Suit Removed to C.D. California ----------------------------------------------------- The case captioned SANTIAGO LIM individually and on behalf of all others similarly situated, Plaintiffs, v. TFORCE LOGISTICS, LLC; TFORCE FINAL MILE WEST, LLC; and DOES 1-10, inclusive, Defendants, Case No. 19STCV05701 was removed from the Superior Court of Los Angeles County, California, to the United States District Court for the Central District of California on May 21, 2019, and assigned Case No. 2:19-cv-04390. The State Action Complaint alleges twelve causes of action: (1) Failure to pay overtime compensation; (2) Reimbursement of business expenses; (3) Unlawful deductions from wages; (4) Failure to provide off duty and complaint meal periods or compensation in lieu thereof; (5) Failure to provide paid, off duty or complaint rest periods, and/or compensation in lieu thereof; (6) Failure to pay regular rates for all hours worked; (7) Failure to keep accurate payroll records; (8) failure to provide accurate, itemized wage statements; (9) Waiting time penalties; (10) Unfair competition and unlawful business practices; (11) Violation of California Business and Professions Code; and (12) Violations of California Labor Code.[BN] The Plaintiff is represented by: Paul J. Marron, Esq. Paul B. Arenas, Esq. Alexander T. Marx, Esq. MARRON LAWYERS, APC 3711 Long Beach Blvd., Suite 601 Long Beach, CA 90807 Phone: (562) 432-7422 Facsimile: (562) 683-2721 Email: pmarron@marronlaw.com parenas@marronlaw.com amarx@marronlaw.com TPUSA INC: Does not Properly Pay Workers, Headspeth Suit Says ------------------------------------------------------------- Chantel Headspeth and Kaylee McBride, on behalf of themselves and others similarly situated, Plaintiffs, v. TPUSA, Inc. dba Teleperformance USA, Defendant, Case No. 2:19-cv-02062-ALM-CMV (S.D. Ohio, May 20, 2019) is a "collective action" instituted by Named Plaintiffs as a result of Defendant's practices and policies of not paying its hourly, non-exempt employees, including Plaintiffs and other similarly-situated employees, for all hours worked, in violation of the Fair Labor Standards Act ("FLSA"). This action also seeks relief pursuant to the Ohio Minimum Fair Wage Standards Act, ("the Ohio Wage Act"); and the Ohio Prompt Pay Act ("OPPA"). Plaintiffs and other similarly situated employees routinely worked 40 or more hours per workweek but were not paid overtime compensation. The Defendant failed to make, keep and preserve records of the unpaid work performed by Plaintiffs and other similarly-situated employees before clocking in each day, in violation of the FLSA, says the complaint. Named Plaintiffs worked as support associates for Defendant in Columbus, Ohio. TPUSA, Inc., which operates and does business as Teleperformance USA, provides call center services to its company customers in a variety of industries.[BN] The Plaintiffs are represented by: Matthew J.P. Coffman, Esq. Peter Contreras, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Road, Suite 126 Columbus, OH 43220 Phone: 614-949-1181 Fax: 614-386-9964 Email: mcoffman@mcoffmanlegal.com peter.contreras@contrerasfirm.com TRW AUTOMOTIVE: Rubio et al Sue over Defective Airbag Control Unit ------------------------------------------------------------------ The case, Sigfredo Rubio, Andrea Shields, Xin Wang, Jami S. Oliver, Laura Shimko, and Margaret Rizzo, individually and on behalf of all others similarly situated, the Plaintiffs, v. ZF-TRW Automotive Holdings Corp., TRW Automotive U.S. LLC, FCA US LLC, American Honda Motor Co., Inc., and Toyota Motor Sales, U.S.A., Inc., the Defendants, Case No. 2:19-cv-11295-LVP-RSW (E.D. Mich., May 3, 2019), alleges that an airbag manufacturer and automakers concealed a deadly airbag performance defect. The Defendants knowingly, actively, and affirmatively omitted and/or concealed the existence of the ACU Defect from Plaintiffs and the other members of the Classes. Knowledge and information regarding the ACU Defect and the associated safety risk was in the exclusive and superior possession of Defendants, and was not disclosed to Plaintiffs and the other members of the Classes, who could not reasonably discover the defect through due diligence. Through pre-production testing, design failure mode analysis, wrongful death and personal injury lawsuits, post-collision inspections, vehicle owner questionnaires, and NHTSA investigations, inter alia, the Defendants were aware of the ACU Defect and fraudulently concealed the defect from Plaintiffs and the other members of the Classes. Airbags are a safety component whose failure affects occupant safety. Drivers and passengers reasonably expect airbag deployment in collisions. When functioning properly, airbags are designed to save lives. The National Highway Traffic Safety Administration ("NHTSA") estimates some 12.5 million vehicles may contain a defective Airbag Control Unit ("ACU") designed and manufactured by the Defendants. The defect in the ACU occurs because the application-specific integrated circuit ("ASIC") breaks down by excess electrical energy generated during the crash. This ASIC defect then causes a failure in the ACU preventing deployment of the airbags and seat belt pretensioners. 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 Class Vehicles. If the ASIC fails, the ACU will not operate properly, the lawsuit says.[BN] Counsel for the Plaintiffs and the Proposed Classes: Gregory D. Hanley, Esq. Jamie K. Warrow, Esq. Edward F. Kickham Jr., Esq. KICKHAM HANLEY PLLC 32121 Woodward Avenue, Suite 300 Royal Oak, MH 48073 Telephone: 248-544-1500 E-mail: ghanley@kickhamhanley.com - and - W. Daniel "Dee" Miles, III, Esq. H. Clay Barnett, III, Esq. Christopher D. Baldwin, Esq. BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P.C. 272 Commerce Street Montgomery, AL 36104 Telephone: 334-269-2343 E-mail: Dee.Miles@BeasleyAllen.com Clay.Barnett@BeasleyAllen.com Chris.Baldwin@BeasleyAllen.com - and - Adam J. Levitt, Esq. John E. Tangren, Esq. Daniel R. Ferri, Esq. DICELLO LEVITT GUTZLER LLC Ten North Dearborn Street, Eleventh Floor Chicago, IL 60602 Telephone: 312-214-7900 E-mail: alevitt@dicellolevitt.com jtangren@dicellolevitt.com dferri@dicellolevitt.com - and - Benjamin L. Bailey, Esq. Jonathan D. Boggs, Esq. Eric B. Snyder, Esq. BAILEY GLASSER LLP 209 Capitol Street Charleston, W.V. 25301 Telephone: 304-345-6555 E-mail: bbailey@baileyglasser.com jboggs@baileyglasser.com esnyder@baileyglasser.com - and - Joseph G. Sauder, Esq. Matthew D. Schelkopf, Esq. Joseph B. Kenney, Esq. SAUDER SCHELKOPF LLC 555 Lancaster Avenue Berwyn, PA 19312 Telephone: 888-711-9975 E-mail: jgs@sstriallawyers.com mds@sstriallawyers.com jbk@sstriallawyers.com U.S. SOCCER: Motion to Stay Pay Discrimination Class Suit Denied ---------------------------------------------------------------- Porter Wells, writing for Bloomberg Law, reports that Alex Morgan's pay discrimination class action against U.S. Soccer Federation Inc. will keep moving even as a separate panel decides whether to fold in a separate case filed by goalie Hope Solo. But that decision from the Judicial Panel on Multidistrict Litigation could take months, Judge Gary Klausner said April 30 for the U.S. District Court for the Central District of California. He denied U.S. Soccer's motion to stay the proceedings while they wait "in the interest of justice. [GN] ULTIMATE SOFTWARE: Kessler Files Suit Over Sale to Hellman ---------------------------------------------------------- Penni Kessler, individually and on behalf of all others similarly situated v. The Ultimate Software Group, Inc., Scott Scherr, Mark D. Scherr, James A. Fitzpatrick, Rick A. Wilber, Al Leiter, Jonathan Mariner, and Jason Dorsey., Case No. 1:19-cv-02677 (S.D. N.Y., March 26, 2019), is brought against the Defendants for violations of the Securities Exchange Act, in connection with the proposed sale of the Company to an investor group led by Hellman & Friedman Capital Partners. The Plaintiff alleges that on March 11, 2019, in order to convince Ultimate Software’s stockholders to vote in favor of the Proposed Transaction, the Board authorized the filing of a materially incomplete and misleading proxy statement with the SEC. The complaint says the Proxy Statement misrepresents and/or omits material information that is necessary for the Company’s shareholders to make informed decisions concerning whether to vote in favor of the Proposed Transaction, in violation of the Exchange Act. The Plaintiff is the owner of Ultimate Software common stock. The Defendant Ultimate Software is a Delaware corporation with its principal executive offices located at 2000 Ultimate Way, Weston, Florida 33326. Ultimate Software is a leading provider of cloud-based human capital management solutions, often referred to as human capital management and employee experience solutions. The Individual Defendants are Ultimate Software's Board of Directors. [BN] The Plaintiff is represented by: Joshua M. Lifshitz, Esq. LIFSHITZ & MILLER LLP 821 Franklin Avenue, Suite 209 Garden City, NY 11530 Tel: (516) 493-9780 Fax: (516) 280-7376 E-mail: jml@jlclasslaw.com VESCIO THREADING: Sotelo Suit Alleges Labor Code Violations ----------------------------------------------------------- Mario Sotelo, on behalf of himself and all others similarly situated v. Vescio Threading Co. and Does 1-20, inclusive, Case No. 19STCV10332 (Cal. Super. Ct., Los Angeles Cty., March 27, 2019), is brought against the Defendants for violation of the California Labor Code. The Defendants failed to provide meal and rest periods; failed to pay overtime wages; failed to timely furnish accurate itemized wage statements; and failed to reimburse business expenses and has conducted unfair business practices, asserts the complaint. The Plaintiff is a resident of the State of California and worked for the Defendants from approximately November 2011 to September 28, 2018. The Defendant is a California corporation and the owner and operator of an industry, business, and facility licensed to do business and actually doing business in the State of California manufacturing industrial machinery. [BN] The Plaintiff is represented by: Sam Kim, Esq. Yoonis Han, Esq. VERUM LAW GROUP, APC 841 Apollo Street, Suite 340 El Segundo, CA 90245 Tel: (424) 320-2000 Fax: (424) 221-5010 E-mail: skim@verumlg.com VISA INC: Appeals Launched in Canadian Merchant Litigation ---------------------------------------------------------- Visa Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on April 26, 2019, for the quarterly period ended March 31, 2019, that Wal-Mart Canada and/or Home Depot of Canada Inc. have filed notices of appeal of the decisions approving settlements of litigation in British Columbia, Ontario, Saskatchewan, Quebec and Alberta courts. Beginning in December 2010, a number of class action lawsuits were filed in Quebec, British Columbia, Ontario, Saskatchewan and Alberta against Visa Canada, MasterCard and ten financial institutions on behalf of merchants that accept payment by Visa and/or MasterCard credit cards. The actions allege a violation of Canada's price-fixing law and various common law claims based on separate Visa and MasterCard conspiracies in respect of default interchange and certain of the networks' rules. In 2015 and 2016, four financial institutions settled with the plaintiffs. In June 2017, Visa, MasterCard and a fifth financial institution also reached settlements with the plaintiffs. Settlement approval hearings were held in 2018 and courts in each of the five provinces approved the settlements. Wal-Mart Canada and/or Home Depot of Canada Inc. have filed notices of appeal of the British Columbia, Ontario, Saskatchewan, Quebec and Alberta decisions approving the settlements. Visa Inc. operates as a payments technology company worldwide. The company facilitates commerce through the transfer of value and information among consumers, merchants, financial institutions, businesses, strategic partners, and government entities. Visa Inc. was incorporated in 2007 and is headquartered in San Francisco, California. VOCUS GROUP: Faces Shareholder Class Action ------------------------------------------- Tom Richarson, writing for The Motley Fool, reports that one cloud on the horizon with regard to The Vocus Group Ltd's balance sheet is the receipt of a class action claim being launched by aggrieved investors who bought shares in the business between 29 November 2016 and 2 May 2017. It's being alleged that over this period the company misled investors with erroneous earnings guidance and failed to meet its continuous disclosure obligations as to its operating performance. Ironically the accusations are being made by the textbook example on the ASX of how to blow up billions of dollars in shareholder capital through egregious behaviour in next to no time -- Slater & Gordon Limited (ASX: SGH). Vocus intends to defend the proceedings, but for shareholders the question to consider is the size of any potential compensation due in the event the claims are upheld in court. Quantum awarded is normally a fixed percentage of actual losses suffered assuming causation (i.e. the investors relied on the misconduct in making their decisions) is proven. So to get a rough idea you'd need to know the size of share price falls (around $3 per share) over the period multiplied by the number of shares owned by claimants. The claim is not likely to be for a materially large amount, but Vocus's balance sheet is a problem as it is less able to absorb any payouts due to its perilous leverage. [GN] WALMART INC: Haskins Seeks Unpaid Vacation Pay ---------------------------------------------- Justin Haskins, individually, and on behalf of others similarly situated, Plaintiff, v. Walmart Inc., a Delaware corporation; Wal-Mart Associates, Inc. a Delaware corporation; and Does 1 through 25, Defendants, Case No. 37-2019-00020149-CU-OE-NC (Cal. Super. Ct., San Diego Cty., May 20, 2019) seeks to recover from Defendants unpaid accrued vested vacation pay, at any time within the four years prior to the initiation of this action until the date that the class is certified, plus interest thereon, and reasonable attorneys' fees and costs. The Defendants maintained a vacation policy which explicitly violated the Labor Code section 227.3 in that it required that salaried employees forfeit all but five days of vested vacation pay at separation, says the complaint. Plaintiff was employed by Defendant as a store manager at a Wal-Mart store in Escondido, California from May 2007 until February of 2019. Walmart Inc. is a Delaware corporation organized under the laws of the state of Delaware and authorized to do business in California.[BN] The Plaintiffs are represented by: Aaron C. Gundzik, Esq. Rebecca G. Gundzik, Esq. GARTENBERG GELAND HAYTON LLP 15260 Ventura Blvd., Suite 1920 Sherman Oaks, CA 91403 Phone: (213) 542-2100 Fax: (213) 542-2101 - and - Marshall A. Caskey, Esq. Daniel M. Holzman, Esq. N. Cory Barari, Esq. CASKEY & HOLZMAN 24025 Park Sorrento, Ste. 400 Calabasas, CA 91302 Phone: (818) 657-1070 Fax: (818) 297-1775 WATERSTONE FINANCIAL: Court Vacates July 2017 Arbitration Award --------------------------------------------------------------- The U.S. District Court for the Western District of Wisconsin has vacated the July 5, 2017 arbitration award in its entirety in the case styled, Herrington et al. v. Waterstone Mortgage Corporation, according to Waterstone Financial, Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2019. The Court also closed the case and held that Plaintiff's claims must be resolved through single-plaintiff arbitration. Waterstone Mortgage Corporation is a defendant in a class action lawsuit that was filed in the United States District Court for the Western District of Wisconsin and subsequently compelled to arbitration before the American Arbitration Association. The plaintiff class alleged that Waterstone Mortgage Corporation violated certain provisions of the Fair Labor Standards Act (FLSA) and failed to pay loan officers consistent with their employment agreements. On July 5, 2017, the arbitrator issued a Final Award finding Waterstone Mortgage Corporation liable for unpaid minimum wages, overtime, unreimbursed business expenses, and liquidated damages under the FLSA. On December 8, 2017, the District Court confirmed the award in large part, and entered a judgment against Waterstone in the amount of US$7,267,919 in damages to Claimants, US$3,298,851 in attorney fees and costs, and a US$20,000 incentive fee to Plaintiff Herrington, plus post-judgment interest. On February 12, 2018, the District Court awarded post-arbitration fees and costs of approximately US$98,000. The judgment was appealed by Waterstone to the Seventh Circuit Court of Appeals, where oral argument was held on May 29, 2018. On October 22, 2018, the Seventh Circuit issued a ruling vacating the District Court's order enforcing the arbitration award. If the District Court determines the agreement only allows for individual arbitration, the award would be vacated and the case sent to individual arbitration for a new proceeding. If the District Court determines the arbitration agreement nevertheless allows for collective arbitration, the District Court could confirm the prior award. On December 28, 2018, Plaintiff filed a post-remand brief. In it, Plaintiff asks the District Court to reaffirm the arbitration award entered by the arbitrator in full. Alternatively, she asked the Court to affirm her individual damage award and the awards of 123 other opt-ins whose arbitration agreements permit joinder or class actions. Lastly, Plaintiff asked the District Court to have 154 opt-ins intervene and file an amended complaint for individual relief in court. Waterstone opposed the motion on January 28, 2019, and asked the District Court to vacate the prior Final Award in full because Herrington's arbitration agreement only allows for individual arbitration. Plaintiff filed its reply on February 14, 2019. On April 25, 2019, the District Court held that Plaintiff's claims must be resolved through single-plaintiff arbitration. As a result, it vacated the July 5, 2017 arbitration award in its entirety, and closed the case. The Company said, "Given these recent developments, and since the award has been vacated, Waterstone does not believe a loss is probable at this time. Accordingly, in accordance with the authoritative guidance in the evaluation of contingencies, the Company has not recorded an accrual related to this matter. The Company does not yet know whether Plaintiff, or other claimants who were part of the prior arbitration will seek to re-assert their claims in arbitration. As a result, it cannot offer an opinion on the likelihood of an unfavorable outcome on the issue of liability or estimate the range of any possible loss at this time." Waterstone Financial, Inc. operates as a bank holding company for WaterStone Bank SSB that provides various financial services to customers in southeastern Wisconsin, the United States. It operates through two segments, Community Banking and Mortgage Banking. The company was formerly known as Wauwatosa Holdings, Inc. and changed its name to Waterstone Financial, Inc. in August 2008. Waterstone Financial, Inc. was founded in 1921 and is based in Wauwatosa, Wisconsin. WATERSTONE FINANCIAL: District Court Okays Werner Suit Settlement ----------------------------------------------------------------- The U.S. District Court for the Western District of Wisconsin has approved the settlement in the case styled Werner et al. v. Waterstone Mortgage Corporation, according to Waterstone Financial, Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2019. The Court has also dismissed the Plaintiffs' claims. Waterstone Mortgage Corporation is a defendant in a putative collection action lawsuit that was filed on August 4, 2017 in the United States District Court for the Western District of Wisconsin, Werner et al. v. Waterstone Mortgage Corporation. Plaintiffs allege that Waterstone Mortgage Corporation violated the Fair Labor Standards Act (FLSA) by failing to pay loan officers minimum and overtime wages. On October 26, 2017, Plaintiffs moved for conditional certification and to provide notice to the putative class. On February 9, 2018, the Court denied Plaintiffs' motion for conditional certification and notice. On July 23, 2018, Waterstone filed a motion for partial summary judgment on the claims. It sought to (1) dismiss the time-barred claims of four opt-ins and (2) dismiss all other opt-ins due to the denial of conditional certification. In response, all but Werner and Wiesneski filed motions to withdraw their consents to join the case. The Court denied the summary judgment motion on the basis that it was moot due to the opt-in plaintiffs voluntarily dismissing their case. On October 17, 2018, Werner and Wiesneski asked the Court to send their claims to arbitration. On December 13, 2018, the Court denied the request, finding they had waived their right to arbitrate based on litigating the case in Court for over a year. Thus, the case remained in Court as a two-Plaintiff case. In April 2019, the parties finalized a settlement in principle to resolve the claims. The Court granted approval of the settlement and dismissed Plaintiffs' claims. The Company said, "The amount of the settlement would not have a material impact to the financial statements." Waterstone Financial, Inc. operates as a bank holding company for WaterStone Bank SSB that provides various financial services to customers in southeastern Wisconsin, the United States. It operates through two segments, Community Banking and Mortgage Banking. The company was formerly known as Wauwatosa Holdings, Inc. and changed its name to Waterstone Financial, Inc. in August 2008. Waterstone Financial, Inc. was founded in 1921 and is based in Wauwatosa, Wisconsin. WATERSTONE MORTGAGE: Underpays Loan Originators, Johnson Claims --------------------------------------------------------------- A class action lawsuit alleges that Waterstone Mortgage Corporation failed to pay the Plaintiffs minimum wages and overtime premium pay as required by the Fair Labor Standards Act, and by Waterstone's promise to pay them minimum wage and overtime premium pay as required by the common law of contract and quasi-contract. The Plaintiffs are mortgage loan originators for Waterstone. Like loan originators throughout the mortgage industry, they work very long hours. Prior to August 1, 2010, Waterstone treated its loan originators as exempt from the FLSA and failed to record their hours of work. On March 24, 2010, the U.S. Department of Labor issued an administrative Interpretation of the FLSA declaring that loan originators were not administratively exempt from the FLSA and withdrawing a prior Wage Hour Opinion Letter to the contrary. Waterstone was aware of the change, which was well publicized in the mortgage industry. Nevertheless, Waterstone did not begin to record loan originators' hours of work and did not move to pay loan originators overtime for hours over 40 in a work week, the lawsuit says. The case is captioned as RAELEEN JOHNSON, individually and on behalf of the class and all others similarly situated, the Plaintiffs, vs. DAVID BIZOUSKY, NATHAN BRACK, MICHAEL CHILDS, KENDEL DEBLIECK, DAVID EGERTON, PATRICIA GAGNON, TRACEY KEYES, NICK KNABE, RIC KOHLBECK, JAMES KOPHAMEL, MARTIN KUZEL, THOMAS LOVELL, DAVID MILLER, AARON MOE, BRANDAN MOFFETT, ERNEST NWAJUOBI, RICK PALANDRI, DINO PARDUCCI, ANTHONY PORTINCASO, SONNY ROCK, TROY SAINSBURY, MARK SCHELLHAMMER, GREG SCHLIESMANN MATTHEW SCHULTEIS, MICHAEL SCHWARZ, JOHN WHITE, PATRICK WIESE, AND DAVID ZEGUNIS, the Plaintiffs, v. WATERSTONE MORTGAGE CORPORATION, the Defendant, Case No. 2:19-cv-00652-NJ (E.D. Wisc., May 3, 2019).[BN] Attorneys for the Plaintiffs: Dan Getman, Esq. GETMAN, SWEENEY & DUNN, PLLC 260 Fair Street Kingston, New York 12401 Telephone: (845) 255-9370 Facsimile: (845) 255-8649 E-mail: dgetman@getmansweeney.com WEINERT ENTERPRISES: Anderson Seeks to Certify Opt-out Class ------------------------------------------------------------ The Plaintiff in the lawsuit styled Richard J. Anderson, On behalf of Himself and all others similarly situated v. Weinert Enterprises, Inc., Case No. 1:18-cv-00901-WCG (E.D. Wisc.), seeks certification of this opt-out class pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure: All hourly employees who worked on the jobsite for the Defendant on or after June 14, 2016. Mr. Anderson also moves the Court to certify him as class representative.[CC] The Plaintiff is represented by: Yingtao Ho, Esq. THE PREVIANT LAW FIRM, S.C. 310 W. Wisconsin Avenue, Suite 100MW Milwaukee, WI 53203 Telephone: (414) 271-4500 Facsimile: (414) 271-6308 E-mail: yh@previant.com WELLS FARGO: Settlement in Auto Insurance Suit Underway ------------------------------------------------------- Wells Fargo & Company disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2019, that it has reached an agreement in principle to resolve the multi-district litigation related to automobile collateral protection insurance (CPI) matters. A preliminary approval hearing for the settlement was scheduled for June 3, 2019, in the U.S. District Court for the Central District of California. On April 20, 2018, the Company entered into consent orders with the Office of the Comptroller of the Currency (OCC) and the Consumer Financial Protection Bureau (CFPB) to resolve, among other things, investigations by the agencies into the Company's compliance risk management program and its past practices involving certain automobile collateral protection insurance (CPI) policies and certain mortgage interest rate lock extensions. The consent orders require remediation to customers and the payment of a total of US$1.0 billion in civil money penalties to the agencies. In July 2017, the Company announced a plan to remediate customers who may have been financially harmed due to issues related to automobile CPI policies purchased through a third-party vendor on their behalf. Multiple putative class action cases alleging, among other things, unfair and deceptive practices relating to these CPI policies, have been filed against the Company and consolidated into one multi-district litigation in the United States District Court for the Central District of California. The Company has reached an agreement in principle to resolve the multi-district litigation pursuant to which the Company has agreed to pay, consistent with its remediation obligations under the consent orders, approximately US$415 million in remediation to customers with CPI policies placed between October 15, 2005, and September 30, 2016. The settlement amount is not incremental to the Company's remediation obligations under the consent orders, but instead encompasses those obligations, including remediation payments to date. The settlement amount is subject to change as the Company finalizes its remediation activity under the consent orders. In addition, the Company has agreed to contribute US$1 million to a common fund for the class. The district court has set a preliminary approval hearing for June 3, 2019. The US$415 million amount of the agreement in principle was fully accrued as of March 31, 2019. A putative class of shareholders also filed a securities fraud class action against the Company and its executive officers alleging material misstatements and omissions of CPI-related information in the Company's public disclosures. Former team members have also alleged retaliation for raising concerns regarding automobile lending practices. In addition, the Company has identified certain issues related to the unused portion of guaranteed automobile protection (GAP) waiver or insurance agreements between the customer and dealer and, by assignment, the lender, which will result in remediation to customers in certain states. The Company is subject to a class action lawsuit in the United States District Court for the Central District of California alleging that customers are entitled to refunds in all states. Allegations related to the CPI and GAP programs are among the subjects of shareholder derivative lawsuits pending in federal and state court in California. The court dismissed the state court action in September 2018, but plaintiffs filed an amended complaint in November 2018. Subject to court approval, the parties to the state court action have entered into an agreement to resolve the action pursuant to which the Company will pay plaintiffs' attorneys' fees and undertake certain business and governance practices. These and other issues related to the origination, servicing, and collection of consumer automobile loans, including related insurance products, have also subjected the Company to formal or informal inquiries, investigations, or examinations from federal and state government agencies. In December 2018, the Company entered into an agreement with all 50 state Attorneys General and the District of Columbia to resolve an investigation into the Company's retail sales practices, CPI and GAP, and mortgage interest rate lock matters, pursuant to which the Company paid US$575 million. Wells Fargo & Company, a diversified financial services company, provides retail, commercial, and corporate banking services to individuals, businesses, and institutions. The company's Community Banking segment offers checking and savings accounts; credit and debit cards; and automobile, student, mortgage, home equity, and small business loans. Wells Fargo & Company was founded in 1852 and is headquartered in San Francisco, California. WELLS FARGO: Still Faces Class Suit over ATM Access Fee ------------------------------------------------------- Wells Fargo & Company continues to defend against a class action suit related to ATM Access Fee in the U.S. District Court for the District of Columbia, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2019. In October 2011, plaintiffs filed a putative class action, Mackmin, et al. v. Visa, Inc. et al., against Wells Fargo & Company, Wells Fargo Bank, N.A., Visa, MasterCard, and several other banks in the United States District Court for the District of Columbia. Plaintiffs allege that the Visa and MasterCard requirement that if an ATM operator charges an access fee on Visa and MasterCard transactions, then that fee cannot be greater than the access fee charged for transactions on other networks, violates antitrust rules. Plaintiffs seek treble damages, restitution, injunctive relief, and attorneys' fees where available under federal and state law. Two other antitrust cases that make similar allegations were filed in the same court, but these cases did not name Wells Fargo as a defendant. On February 13, 2013, the district court granted defendants' motions to dismiss the three actions. Plaintiffs appealed the dismissals and, on August 4, 2015, the United States Court of Appeals for the District of Columbia Circuit vacated the district court's decisions and remanded the three cases to the district court for further proceedings. On June 28, 2016, the United States Supreme Court granted defendants' petitions for writ of certiorari to review the decisions of the United States Court of Appeals for the District of Columbia. On November 17, 2016, the United States Supreme Court dismissed the petitions as improvidently granted, and the three cases returned to the district court for further proceedings. Wells Fargo & Company, a diversified financial services company, provides retail, commercial, and corporate banking services to individuals, businesses, and institutions. The company's Community Banking segment offers checking and savings accounts; credit and debit cards; and automobile, student, mortgage, home equity, and small business loans. Wells Fargo & Company was founded in 1852 and is headquartered in San Francisco, California. WESTERN REFINING: Removes Hall Suit to Central Dist. of California ------------------------------------------------------------------ Western Refining Retail removed case ELIZABETH HALL, individually and on behalf of all others similarly situated,, the Plaintiff, v. WESTERN REFINING RETAIL, LLC; and DOES 1 through 20, inclusive, the Defendants, Case No. RIC 1902042 (Filed March 22, 2019), from the the Superior Court of the State of California for the County of Riverside, to the United States District Court for the Central District of California on May 3, 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-03919 to the proceeding. The complaint alleges that Defendants failed to provide meal periods, failed to provide accurate itemized wage statements, and failed to timely pay all final wages in violation of Labor Code.[BN] Attorneys for the Defendant: Timothy M. Rusche, Esq. Christina Pacudan, Esq. William J. Dritsas, Esq. SEYFARTH SHAW LLP 601 South Figueroa Street, Suite 3300 Los Angeles, CA 90017-5793 Telephone: (213) 270-9600 Facsimile: (213) 270-9601 E-mail: trusche@seyfarth.com cpacudan@seyfarth.com wdritsas@seyfarth.com WESTERN UNION: Smallen Trust Appeals D. Colo. Ruling to 10th Cir. ----------------------------------------------------------------- Plaintiffs Lawrence Henry Smallen and Laura Anne Smallen Revocable Living Trust filed an appeal from a Court ruling in their lawsuit titled Smallen Revocable Living Trust, et al. v. Western Union Company, et al., Case No. 1:17-CV-00474-KLM, in the U.S. District Court for the District of Colorado - Denver. As previously reported in the Class Action Reporter, the Amended Complaint asserts claims under Section 10(b) of the Exchange Act and Securities and Exchange Commission, and alleges that, during the purported class period of February 24, 2012, through May 2, 2017, the Defendants made false or misleading statements or failed to disclose purported adverse material facts regarding, among other things, the Company's compliance with AML and anti-fraud regulations, the status and likely outcome of certain governmental investigations targeting the Company, the reasons behind the Company's decisions to make certain regulatory enhancements, and the Company's premium pricing. The appellate case is captioned as Smallen Revocable Living Trust, et al. v. Western Union Company, et al., Case No. 19-1154, in the United States Court of Appeals for the Tenth Circuit.[BN] Plaintiff-Appellant LAWRENCE HENRY SMALLEN AND LAURA ANNE SMALLEN REVOCABLE LIVING TRUST, individually and on behalf of all others similarly situated, is represented by: Peretz Bronstein, Esq. BRONSTEIN, GEWIRTZ & GROSSMAN, LLC 60 East 42nd Street, Suite 4600 New York, NY 10165 Telephone: (212) 697-6484 E-mail: peretz@bgandg.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP Ten South La Salle Street, Suite 3505 Chicago, IL 60303 Telephone: (312) 377-1181 E-mail: pdahlstrom@pomlaw.com - and - Marc I. Gross, Esq. Michael Grunfeld, Esq. Jeremy Alan Lieberman, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 E-mail: migross@pomlaw.com mgrunfeld@pomlaw.com jalieberman@pomlaw.com Plaintiff UA LOCAL 13 PENSION FUND, individually and on behalf of all others similarly situated, is represented by: Rusty Glenn, Esq. SHUMAN LAW FIRM 600 17th Street, Suite 2800 South Denver, CO 80202 Telephone: (303) 861-3003 E-mail: rusty@shumanlawfirm.com - and - Kip Brian Shuman, Esq. SHUMAN LAW FIRM One Montgomery Street, Suite 1800 San Francisco, CA 94104 Telephone: (303) 861-3003 E-mail: kip@shumanlawfirm.com - and - Henry Rosen, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-1058 E-mail: henryr@rgrdlaw.com Defendants-Appellees THE WESTERN UNION COMPANY, HIKMET ERSEK, SCOTT T. SCHEIRMAN, RAJESH K. AGRAWAL and BARRY KOCH are represented by: David F. Graham, Esq. Hille R. Sheppard, Esq. SIDLEY AUSTIN LLP One South Dearborn Street Chicago, IL 60603 Telephone: (312) 853-7000 E-mail: dgraham@sidley.com hsheppard@sidley.com - and - Holly Stein Sollod, Esq. Claire Elizabeth Wells Hanson, Esq. HOLLAND & HART LLP 555 17th Street, Suite 3200 Denver, CO 80202 Telephone: (303) 295-8000 E-mail: hsteinsollod@hollandhart.com cehanson@hollandhart.com WINDHAM PROFESSIONALS: Third Circuit Appeal Filed in James Suit --------------------------------------------------------------- Plaintiff Melissa James filed an appeal from a Court ruling in the lawsuit styled Melissa James v. Windham Professionals Inc., et al., Case No. 2-18-cv-01865, in the U.S. District Court for the District of New Jersey. As previously reported in the Class Action Reporter, the lawsuit seeks to stop the Defendant's alleged unfair and unconscionable means to collect a debt. Windham Professionals provides accounts receivable management and customer care services. The appellate case is captioned as Melissa James v. Windham Professionals Inc., et al., Case No. 19-1964, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiff-Appellant MELISSA JAMES, On behalf of herself and all others similarly situated, is represented by: Joseph K. Jones, Esq. Benjamin J. Wolf, Esq. JONES, WOLF & KAPASI, LLC 375 Passaic Avenue, Suite 100 Fairfield, NJ 07004 Telephone: (973) 227-5900 Facsimile: (973) 244-0019 E-mail: jkj@legaljones.com bwolf@legaljones.com Defendant-Appellee WINDHAM PROFESSIONALS INC. is represented by: Christian M. Scheuerman, Esq. MARKS O'NEILL O'BRIEN DOHERTY & KELLY, P.C. 535 Route 38 East, Suite 501 Cherry Hill, NJ 08002 Telephone: (856) 663-4300 E-mail: cscheuerman@moodklaw.com ZF TRW: Car Owners Sue Over Defective Air Bag Control Units ----------------------------------------------------------- In the case captioned Thomas Copley, Marvin Coyner, and Elizabeth Evans, on behalf of themselves and all others similarly situated, Plaintiffs, v. ZF TRW Automotive Holdings Corp., Hyundai Motor America, Inc. and Kia Motor America, Inc., Defendants, Case No. 19-cv-00707 (W.D. Wash. May 10, 2019), Plaintiffs are Kia and Hyundai car owners with defective Airbag Control Units. The defect manifests only when an accident occurs, that is, an integrated circuit defect prevents deployment of the airbags and seatbelt pre-tensioners. The Plaintiffs seek compensatory, exemplary and punitive remedies and damages and statutory penalties, including interest, injunctive and equitable relief in the form of a recall and program to repair, modify, and/or buy back all defective vehicles and to fully reimburse all costs and economic losses, disgorgement of all or part of the ill-gotten profits they received from their sale or lease of the concerned vehicles, all applicable statutory and civil penalties, award of costs and attorneys' fees and such other or further relief in breach of warranty and in violation of various state consumer protection acts. ZF TRW Automotive Holdings Corp. is a major automotive parts supplier while Hyundai Motor America is a manufacturer and distributor of new motor vehicles under the Hyundai brand. Plaintiff is represented by: Lynn Lincoln Sarko, Esq. Gretchen Freeman Cappio, Esq. Ryan McDevitt, Esq. Erika Keech, Esq. KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052 Tel (206) 623-1900 Fax (206) 623-3384 Email: lsarko@kellerrohrback.com gcappio@kellerrohrback.com rmcdevitt@kellerrohrback.com ekeech@kellerrohrback.com [*] Missouri Bill Modifies Class Action Joinder, Venue Rules ------------------------------------------------------------ Caitly Rosen, writing for Missourian, reports that people will have a harder time bringing class-action lawsuits and lawsuits including out-of-state plaintiffs in Missouri courts under a bill that received final House approval on May 1. The bill now goes to the governor, who strongly supports the measure. Sen. Ed Emery, R-Lamar, sponsored the bill that modifies lawsuit provisions regarding joinder and venue rules. Currently, if a group of plaintiffs are filing a case over the same alleged wrongdoing, they can join their cases in one suit. These plaintiffs can also currently file suit in any Missouri court as long as at least one of them lives there, the incident occurred there or the company is based there. Emery's legislation looks to change that. It lines up with a recent ruling by the Missouri Supreme Court -- State ex rel. Johnson & Johnson v. Burlison -- where the court determined that plaintiffs cannot join cases unless they have standing, such as living in or being injured in, a particular jurisdiction. The current joinder rules have been used to violate restrictions related to venue, Emery said, referring to where a case can be heard. Supporters of the bill, including Rep. Glen Kolkmeyer, R-Odessa, said the legislation is necessary because it would reduce the number of cases in Missouri involving out-of-state litigants, thereby reducing cost for taxpayers. "This bill would reduce cost and increase access for Missouri residents to our court system by reducing the number of cases filed in Missouri courts by plaintiffs with no connection to this state whatsoever," Kolkmeyer said. "So why should we care? Because it costs every taxpayer in this state. We are having judges from all over the state travel to St. Louis to cover their overcrowded docket." He said the current venue law makes businesses not want to come to the state. "Last year, Amazon announced they were building a second headquarters in the United States, and guess what? Kansas City, St. Louis, Missouri didn't even make the top 20," Kolkmeyer said. "Why would a company want to come to Missouri and do business in this state or expand their business here in the first place?" Rep. Mark Ellebracht, D-Liberty, said that this legislation undermines a lawyer's ability to consolidate plaintiffs, and as a result, it undermines a plaintiff's right to a trial by jury of their peers. "We are undermining constitutional rights of our constituents with this," Ellebracht said. "We have been, and consistently will be, taking away their rights every time we tell them that they cannot take their claim to a jury." Others took issue with a provision of the bill that would restrict the ability to file lawsuits against sellers that don't have any role in manufacturing a product. Rep. Gina Mitten, D-St.Louis, said this would make it harder for Missourians to sue for product related wrongdoing. Supporters of the bill, however, said the restriction prevents excessive lawsuits. Kolkmeyer said plaintiffs file suit against as many defendants as they can, and the ability to sue such sellers only increases that. "This puts a hook in, and that's what we're trying to remove, is the hook," he said. The legislation now just awaits the governor's signature before becoming active law in August. "Passing venue and joinder reform is a huge win and will provide long overdue relief to Missouri businesses that have been taken advantage of by rampant abuse of our state's legal system," Gov. Mike Parson said in a media release. "The passage of SB 7 will soon deliver a significant economic boost and create a better business environment all across Missouri." [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 ***