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/raid1/www/Hosts/bankrupt/CAR_Public/190715.mbx C L A S S A C T I O N R E P O R T E R Monday, July 15, 2019, Vol. 21, No. 140 Headlines 208 TAVERN INC: Fails to Pay Proper Wages, Argueta et al. Say AIR LINE PILOTS: Must Face Pilot Instructors' Class Action AIR METHODS: Armato Sues over Contract Violations AKORN INC: Gabelli Moves to Certify Class in Securities Suit AMERICAN HONDA: Averts Class Action Over Dealership Supervision ANOVOS: Faces Fraud Class Action Over Missing Merchandise AO SMITH: July 29 Lead Plaintiff Bid Deadline APPLE INC: iOS Developers File Class Action Over App Store Fees APPLIED SERVICES: Thompson Seeks Conditional Class Certification ARRAY BIOPHARMA: Kent Challenges Merger Deal with Pfizer BANK OF AMERICA: Court Denies Class Cert. in Lopez Suit BANK OF AMERICA: Young Sues over Unauthorized Text Messages BANKSA: In Talks to Resolve Samra Ponzi Scheme Class Action BIG RIVER: 8th Cir. Vacates Attorney's Fees Disapproval in Barbee BLOSSOM WEST: Tarax et al Seek OT Pay for Restaurant Staff BOSE: Seeks Dismissal of Wiretapping, Eavesdropping Class Action BP EXPLORATION: Court Grants Dismissal Bid in Jarquin Suit BP EXPLORATION: Court OKs Dismissal Bid in Rabalais BRIGGS RENTALS: Hays et al Seek Minimum & OT Premium Pay BROUSSEAU MANAGEMENT: Leja Seeks to Certify Class Under FLSA BUCKS COUNTY, PA: To Appeal Jury Verdict in CHRIA Class Action CANADA: Farmers to Launch Class Action Over Handling of CWB File CASTLE PARKING: Faces Evanston Insurance Suit in N.D. Georgia CEMTREX INC: Court Approves Securities Class Action Settlement CENTERPLATE OF DELAWARE: Wins Prelim. OK of Raquedan Settlement CHARLESTON, SC: Coastal Conservation League Files Class Action CHASE BANK: Sued Over Interest on Credit Card Pain in Full CHUY'S OPCO: Humphrey Seeks Proper OT Pay for Assistant Managers CICERO, IL: Class of Female Detainees Certified in Adair Suit CLOUDERA INC: Faces Franchi Suit over 53% Drop in Share Price COMMUNITY HEALTH: Faces Securities Class Action in Tennessee CORTEVA, INC: Thondukolam et al. Sue over DuPont Retirement Plan COSTA DEL MAR: Class Certification of Buyers of Sunglasses Sought DETROIT PROPERTY: James Moves to Certify Class of Property Buyers DISH NETWORK: 4th Cir. Affirms $61MM Damages in TCPA Class Action DOUGLAS PARKING: Underpays Parking Attendants, Bang Alleges DUKE UNIVERSITY: Court OKs $10.65MM Settlement in ERISA Suits ELASTOS FOUNDATION: Removes Owen et al. Suit to S.D. New York EVENTBRITE: Judge Tosses Ticketfly Hack Class Action FIRST AMERICAN: Faces Forney et al. Suit over Data Breach FOUR SEASONS: Court Narrows Claims in C. Zyda's UMOC Suit FOX RUN: Faces Class Action in New York Over ADA Violation GALVIS & MUSA CORP: Franco Seeks Minimum & Overtime Pay GENERAL MOTORS: Campos et al. Sue over Defective Motor Vehicle GREATCALL: Recalls MobilePlus Devices Amid Class Action GRUBHUB: Faces Class Action in Philadelphia Over Hidden Fees GRUBHUB: Seeks Dismissal of Philadelphia Class Action HASBRO INC: Removes Erler et al. Suit to N.D. Georgia HERON THERAPEUTICS: Aug. 5 Lead Plaintiff Motion Deadline Set HOME DEPOT: McGuireWoods Attorneys Discuss Supreme Court Ruling HOMELAND SECURITY: Sued over Redetermination Memo on Alien Kids HVG: Defends Alucobond PE-Core Cladding Class Action in Australia ICAN BENEFIT: Policy Exclusion Relieves Insurer from Class Action ILLINOIS: Ford's Amended Complaint May Proceed, Says Court ITS NATIONAL: Deweese Settlement Has Final Court Approval JANNSEN PHARMA: Oct. 21 Trial Date Set for Opioid Class Action JEHOVAH'S WITNESSES: Can Appeal Ruling in Sexual Assault Lawsuit JMR LANDSCAPING: Zuniga Moves to Certify Class of Employees JP MORGAN: Settles Class Action Over Parental Leave Policy JPMORGANCHASE: Sends Forced Arbitration Email to Customers JUUL: Alabama Teens File E-Cigarette Addiction Class Action KIA MOTORS: Faces Galvan Suit over Defective GDI Engine LANDSTAR SYSTEM: Removes Tanious Suit to C.D. California LIVENT CORP: Rosen Law Firm Files Securities Fraud Class Suit MACY'S INC: Underpays Sales Associates, Ghalbi Fouladbazou Say METRO BANK: Kahn Swick Files Securities Fraud Class Suit MICHAEL KORS (USA): Faces Chu ADA Suit in N.D. California MICHAEL T. ANGELO: Fla. App. Flips Class Certification in Parker MONARCH RECOVERY: Jones et al Sue over Misleading Collection Letter MONCTON HOSPITAL: Nurse Refute Allegations in Class Action MONSANTO CO: Carbone Lawyers Files Roundup Weedkiller Lawsuit MONSANTO COMPANY: Austin et al Suit Transferred to N.D. Cal. MOVE INC: Court Grants NAR's Bid to Dismiss Silverman TCPA Suit NAT'L ASSOCIATION: Class Action to Impact Traditional Brokerages NATIONAL INDEMNITY: 8th Circuit Appeal Initiated in Muri FLSA Suit NATIONWIDE LIFE: Brown Moves for Certification of Two Classes NIANTIC: Submits Revised Pokemon Go Settlement for Approval NIO INC: Faces Donlon Suit over 50% Drop in Share Price NIPPON YUSEN: Class Action Over Alleged Price-Fixing Can Proceed NPSG GLOBAL: Court Denies Amended Discovery Plan in Reese OHIO HOSPICE: Spano Moves to Expand CNAs Class Definition ON MY OWN: Hartley Case Dismissed for Failure to Prosecute P.E.I.: Class Action Over Disability Support Program Can Proceed PORTFOLIO RECOVERY: Serio Sues over Debt Collection Practices POST UNIVERSITY: Davis Moves for Certification of TCPA Class QUEST DIAGNOSTICS: Faces Rogge et al. Suit Over Data Breach RAUSCH STURM: Johnson Sues over Debt Collection Practices REVLON: Class Actions Pile Up Over SAP ERP System Error RIO TINTO: New York Court Dismisses Investor Class Action S&S UTILITIES: Morgan Seeks Nod to Send Notice to Laborers Class SKECHERS USA: Employees Class Certified Under FLSA in Wilk Suit SKYLINE STEEL: Holguin et al. Suit Transferred to D. Ariz. SOUTHERN CABLE: Allied Bid to Quash Wallace Case Subpoena Denied SPRINT: Faces Class Action Over Buy One Get One Cellphone Offer STATE EMPLOYEE'S ASSOC: Doughty Appeals Dismissal Order to 1st Cir. SUFFOLK COUNTY, NY: Court Consolidates Holloway Suit With Butler SUPERVALU: 8th Cir. Affirms Data Breach Class Action Decision TAIWAN KAI: Aug. 6 Settlement Final Approval Hearing Set TAKEDA PHARMA: Appeal in Painters' Fund Class Suit Still Pending TAKEDA PHARMA: Bid to Dismiss Actos-Related Suit in NY Pending TAKEDA PHARMA: Class Suit over ELAPRASE Tests Underway in Brazil TAKEDA PHARMA: Faces 3 Proton Pump Inhibitor Class Suits in Canada TECHPRECISION CORP: Discovery Extended to July 22 in Suit v. Ranor TIME INC: Faces Class Action Over Automatic Subscriptions TIVITY HEALTH: OK Firefighters Seek Class Cert. in Weiner Suit TO-RISE LLC: Seeks Prelim. Approval of Lora Suit Settlement TOYOTA: $33.6MM Power-Sliding Door Class Action Settlement Okayed TREASURY WINE: Court Grants Costs of Stayed Class Action U.S. SUGAR: Class Action Calls for End of Sugarcane Burns UBS PAINEWEBBER: 5th Cir. Affirms Dismissal of Class Action UMB BANK: Garrett Seeks to Certify Class of Loan Originators UNIFUND CCR: Knaak Moves for Class Certification Under Damasco UNITED STATES: Faces Driever Suit over Inmates' Civil Rights UNITED STATES: Sued for Discriminating Against Asylum-Seekers UNITED STATES: Westbrook Suit Transferred to District of Nevada UNITEDHEALTHCARE: Court Dismisses M. Dane's CUTPA Suit UNITEDHEALTHCARE: Seeks Transfer of Class Action to Massachusetts VITAL ONE: Court OKs Filing of Amended Answer in Dickey Suit VOLUME SERVICES: Wins Prelim. Nod of Settlement in Raquedan Suit VULTIK, INC: Fails to Produce Viable Client Leads, Wilshire Says WAGEWORKS INC: Continues to Defend Securities Class Suit in Cal. [*] Three Dozen Canadian Airports May Face Class Action Over Fees [*] U.S. Class Action Litigation Spending Hits Highest Level ********* 208 TAVERN INC: Fails to Pay Proper Wages, Argueta et al. Say ------------------------------------------------------------- FRANCISCO ARGUETA; EFRAIN CHAVARRIA; and LENIN HERNANDEZ, individually and on behalf of all others similarly situated, Plaintiffs v. 208 TAVERN, INC.; BRAND TAVERN, INC.; HARUTYUN HARUTYUNYAN; TIGRAN AZATIAN; MINAS JEGALIAN; and DOES 1 through 50, inclusive, Defendants, Case No. 19STCV20549 (Cal. Super., Los Angeles Cty., June 11, 2019) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, provide accurate wage statements, and reimburse necessary business expenses. The Plaintiffs were employed by the Defendants as hourly paid, non-exempt employees. 208 Tavern, Inc. is a corporation organized and existing under the laws of the State of California. The Company is engaged in the lodging and restaurant business. [BN] The Plaintiffs are represented by: Pouya B. Chami, Esq. CHAMI LAW, PC 11845 W. Olympic Blvd., Suite 1000 Los Angeles, CA 90064 Telephone: (310) 484-5001 Facsimile: (310) 484-5002 E-mail: pchami@chamilaw.com AIR LINE PILOTS: Must Face Pilot Instructors' Class Action ---------------------------------------------------------- DM Herra, writing for Cook County Record, reports that a federal judge has grounded an airline pilots' union's efforts to dodge a class-action lawsuit by arguing the claims brought by the suit expired while the case was on appeal, and the class action over pay owed to pilot instructors will continue. U.S. District Judge Gary Feinerman denied the Air Line Pilots Association International's motion to end the lawsuit, and instead certified the class of pilot instructors, as sought by named plaintiffs David Bishop and Eric Lish in the six-year-old case. The lawsuit stems from a 2012 collective bargaining agreement between ALPA and United Continental Holdings, which employed pilots for both Continental Airlines and United Airlines. As part of the agreement, United Continental paid $400 million in retroactive pay to compensate union members for raises they would have received had the contract negotiations not taken two years. ALPA developed a formula to distribute $225 million allocated to United pilots between several pilot groups, including line pilots, management pilots and pilot instructors. According to Bishop and Lish, the formula unfairly favored line pilots. A class of management pilots settled with ALPA on charges the union breached its duty of fair representation. The court initially rejected the pilot instructor subclass, but that decision was rejected by the U.S. Seventh Circuit Court of Appeals and sent back to Feinerman's courtroom for further hearings. ALPA asked the court to strike the class allegations as time barred. According to the union, absent class members' opportunity to join the action ended when the subclass was denied and the six-month statute of limitations for duty of fair representation ended before the denial was reversed by the appellate court. "The problem with ALPA's argument is that it loses sight of what a statute of limitations is and when tolling matters," Feinerman wrote. "Filing of a class action within the limitations period satisfies the statute of limitations for all persons who are 'subsequently determined' to be class members, even if that determination is made after a successful appeal." Because the original class action was timely filed, the court wrote, the statute of limitations could not run out while the case was on appeal. Feinerman offered an explanation of the 1974 case cited by the union in which absent class members were time barred from intervening in a failed class action. In that case, the judge wrote, the plaintiffs were not acting as a class but attempting to intervene as individual plaintiffs, subjecting their claims to a tolling period. "Here, no member of the putative pilot instructor class has attempted to intervene or to file her own individual suit or class action," the court wrote. "Rather, all absent class members have continued to prosecute their claims as part of this timely filed class action suit. If the pilot instructor class is certified, that timely filing will satisfy the statute of limitations." Feinerman found that the class proposed by Bishop and Lish -- all United pilots who worked as a United pilot instructor between Jan. 1, 2010, and Dec. 18, 2012 -- meets all the criteria for class certification. Because ALPA offered no objection other than its failed argument that the class was time barred, the court granted class certification. ALPA has been represented in this case by in-house counsel and by attorneys with Cohen, Weiss & Simon of New York, Gladstein, Reif & MeGinniss of New York, and Goldman, Ismael, Tomaselli, Brennan & Baum of Chicago. [GN] AIR METHODS: Armato Sues over Contract Violations ------------------------------------------------- A class action complaint has been filed against Air Methods Corporation, Inc. for alleged contract violations. The case is captioned Armato v. Air Methods Corporation et al, Case No. 1:19-cv-01771-NRN (D. Colo., June 19, 2019). It is assigned to Hon. Judge N. Reid Neureiter. Headquartered in Englewood, Colorado, Air Methods Corporation is an American privately owned helicopter operator. The air medical division provides emergency medical services. [BN] The Plaintiff is represented by: Richard Joseph Burke, Esq. Quantum Legal LLC 513 Central Avenue Suite 300 Highland Park, IL 60035 Telephone: (847) 433-4500 Facsimile: (847) 433-2500 E-mail: Richard@Qulegal.com AKORN INC: Gabelli Moves to Certify Class in Securities Suit ------------------------------------------------------------ Lead Plaintiffs Gabelli & Co. Investment Advisors, Inc. and Gabelli Funds, LLC, move to certify the action styled IN RE AKORN, INC. DATA INTEGRITY SECURITIES LITIGATION, Case No. 1:18-cv-01713 (N.D. Ill.), as a class action on behalf of this class: all persons and entities who purchased or otherwise acquired Akorn, Inc.'s common stock between November 3, 2016 and January 8, 2019, inclusive, and were damaged thereby. Excluded from the Class are: (i) Defendants; (ii) other former and current directors and officers of Akorn, Inc., including their families and affiliates; (iii) any investment funds, companies, partnerships, trusts or other entities controlled by or benefitting such excluded parties; and (iv) the legal representatives, heirs, successors or assigns of any such excluded party (the "Class"). The Lead Plaintiffs also move the Court to appoint them as Class Representatives and to appoint Entwistle & Cappucci LLP as Class Counsel and Bernstein Litowitz Berger & Grossmann LLP as Class Liaison Counsel.[CC] The Lead Plaintiffs are represented by: Andrew J. Entwistle, Esq. ENTWISTLE & CAPPUCCI LLP 500 W. 2nd Street, Suite 1900-16 Austin, TX 78701 Telephone: (512) 710-5960 E-mail: aentwistle@entwistle-law.com - and - Joshua K. Porter, Esq. Brendan J. Brodeur, Esq. Andrew M. Sher, Esq. ENTWISTLE & CAPPUCCI LLP 299 Park Avenue, 20th Floor New York, NY 10171 Telephone: (212) 894-7200 Facsimile: (212) 894-7272 E-mail: jporter@entwistle-law.com bbrodeur@entwistle-law.com asher@entwistle-law.com - and - Avi Josefson, Esq. John Rizio-Hamilton, Esq. Abe Alexander, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 875 North Michigan Avenue, Suite 3100 Chicago, IL 60611 Telephone: (312) 373-3880 E-mail: avi@blbglaw.com johnr@blbglaw.com abe.alexander@blbglaw.com AMERICAN HONDA: Averts Class Action Over Dealership Supervision --------------------------------------------------------------- Joey Pizzolato, writing for Auto Finance News, reports that American Honda Finance Corp. has avoided a class-action claim that it was culpable in negligent supervision of one of its dealership partners, according to a unanimous opinion published by the Ninth Circuit Court of Appeals. The plaintiff, Harvinder Singh, alleged that the Auburn, Wash.-based dealer Hinshaw Honda did not provide him with three add-on features. [GN] ANOVOS: Faces Fraud Class Action Over Missing Merchandise --------------------------------------------------------- Ashley Cullins, writing for Hollywood Reporter, reports that a company that sells props and replicas of costumes from hit sci-fi franchises including Star Wars, Star Trek and Battlestar Galactica is being sued for fraud -- along with the studios who gave the company permission to create the products -- for allegedly not fulfilling presale orders. A Louisiana man named Richard Dalton says he paid Anovos more than $40,000 for merchandise but never received it, according to a complaint filed on June 3 in California federal court. The items he ordered include a Star Trek Spock replica blue tunic, a Star Wars: The Force Awakens Kylo Ren costume with helmet and a $9,000 buildable replica of a starship. More than three years after his first purchase, having never received his products, Dalton read an explanation on the company's website. It said when products experienced production delays, some customers would cancel orders and fewer pre-orders led to an increase in the price of the raw materials and per-unit cost as well as cancellation of items that failed to meet the factory's minimums. "Despite Anovos' inability to fulfill the hundreds, if not thousands of pre-paid orders customers have already submitted, Anovos continues to market and sell pre-order items on its website and on social media in the same manner: requiring full upfront costs of the items in addition to shipping," writes attorney Joshua Swigart in the complaint, adding that the company in April instituted an "all sales are final" policy. Disney, NBCUniversal and CBS are also defendants in Dalton's class action complaint, which estimates total damages will exceed $5 million. Dalton says the studios permitted Anovos to defraud consumers by renewing their licensing agreements with the companies. The proposed class is currently defined as: "All consumers who paid for a pre-order product(s) from Anovos and licensed by Disney, NBCU, and/or CBS, and who have not received the product nor a refund from January 1, 2016, through the present." [GN] AO SMITH: July 29 Lead Plaintiff Bid Deadline --------------------------------------------- Rosen Law Firm, a global investor rights law firm, reminds purchasers of the securities of A.O. Smith Corporation (NYSE: AOS) from July 26, 2016 through May 16, 2019, inclusive (the "Class Period") of the important July 29, 2019 lead plaintiff deadline in the class action. The lawsuit seeks to recover damages for A.O. Smith investors under the federal securities laws. To join the A.O. Smith class action, go to http://www.rosenlegal.com/cases-register-1575.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) A.O. Smith had undisclosed business connections and entanglements with Jiangsu UTP Supply Chain ("UTP") through which it funneled up to 75% of its China product sales; (2) A.O. Smith had used UTP to engage in channel stuffing by artificially inflating inventories purportedly sold through distributors that were not based on consumer demand, thereby approximately doubling the normal level of inventory at such distributors; (3) A.O. Smith had used its UTP relationship to artificially inflate the sales figures it reported to investors by as much as 8% and to conceal worsening sales trends that A.O. Smith was experiencing in China; (4) A.O. Smith's sales growth had been primarily in lower margin products as its higher priced products were being undercut by competition in "second-tier" Chinese cities, causing the Company to experience significant market pressures; (5) A.O. Smith had increased its cash reserves in China to over $530 million in furtherance of its channel stuffing and sales manipulation scheme, encumbering A.O. Smith's ability to repatriate the cash for use for capital expenditures; and (6) as a result, A.O. Smith's public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than July 29, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-register-1575.htmlor to discuss your rights or interests regarding this class action Contact: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Phone: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 Website: www.rosenlegal.com Email: lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com [GN] APPLE INC: iOS Developers File Class Action Over App Store Fees --------------------------------------------------------------- Tim Hardwick, writing for MacRumors, reports that Apple is facing a new class-action lawsuit from iOS developers who claim that the company uses its monopoly in the App Store to impose "profit-killing" commissions. Filed on June 4 in the U.S. District Court for the Northern District of California in San Jose, the lawsuit argues that the tech giant's practice of instating a 30 percent commission rate on all app sales is anticompetitive and "sets the stage for Apple to abuse its market power." The suit also takes aim at Apple's minimum $0.99 price requirement for paid apps in the App Store and in-app purchases, as well as the annual $99 Apple Developer fee, calling these policies "especially damaging to smaller and new developers." "Between Apple's 30 percent cut of all App Store sales, the annual fee of $99 and pricing mandates, Apple blatantly abuses its market power to the detriment of developers, who are forced to use the only platform available to them to sell their iOS app," said Steve Berman, managing partner of Hagens Berman and attorney representing the proposed class of developers. "In a competitive landscape, this simply would not happen." "The lawsuit seeks to force Apple to end its abusive monopoly and allow competition in the distribution of iOS apps and related products, to get rid of its pricing mandates, and to reimburse developers for overcharges made through abuse of its monopoly power." "We think app developers should be rewarded fairly for their creations, not over-taxed by a corporate giant," Berman said. "After 11 years of monopoly conduct and profits, we think it's high time that a court examine Apple's practices on behalf of iOS app developers and take action as warranted by the law and facts." Hagens Berman won a suit against Apple and various publishing companies in 2016 that settled for a total of $560 million on behalf of e-book purchasers, who said they were forced to pay "artificially high prices due to Apple and the publishing companies' colluded price-fixing." That suit went to the Supreme Court, where the Court ruled against Apple. The latest class action accuses Apple of violating federal antitrust law and California's unfair competition law. [GN] APPLIED SERVICES: Thompson Seeks Conditional Class Certification ---------------------------------------------------------------- The Plaintiff in the lawsuit captioned JACK THOMPSON, Individually and for Others Similarly Situated v. APPLIED SERVICES AUGMENTATION PARTNERS, INC., Case No. 3:19-cv-00127-FDW-DCK (W.D.N.C.), asks the Court to grant conditional certification and authorize notice be sent to the putative class members. To facilitate the purposes of the Fair Labor Standards Act's collective action provisions, Mr. Thompson asks that the Court grant this Motion and (1) conditionally certify this action for purposes of notice and discovery; (2) authorize judicial notice be sent to all Putative Class Members ("straight time for overtime workers"); (3) approve the Notice and Consent forms attached to his Motion; (4) authorize the mailing and e-mailing of notice, along with a reminder notice; (5) authorize Class Counsel to contact the Putative Class Members by telephone/via text message or through a reminder postcard if their mailed or emailed Notice and Consent forms return undeliverable; (6) order ASAP to produce to Class Counsel the contact information for each of the Putative Class Members within 10 days of the Court's order; and (7) authorize a sixty-day notice period for the Putative Class Members to join the case.[CC] The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Richard M. Schreiber, Esq. JOSEPHSON DUNLAP LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com rschreiber@mybackwages.com - and - Christopher Strianese, Esq. Tamara Huckert, Esq. STRIANESE HUCKERT LLP 3501 Monroe Rd. Charlotte, NC 28205 Telephone: (704) 966-2101 E-mail: chris@strilaw.com tamara@strilaw.com The Defendant is represented by: Kevin Dalton, Esq. FISHER & PHILLIPS, LLP 227 West Trade Street, Suite 2020 Charlotte, NC 28202 Telephone: (704) 334-4565 Facsimile: (704) 334-9774 E-mail: kdalton@fisherphillips.com ARRAY BIOPHARMA: Kent Challenges Merger Deal with Pfizer --------------------------------------------------------- A class action complaint has been filed against Array BioPharma Inc., its Board of Directors, Pfizer Inc., and Arlington Acquisition Sub Inc. for alleged violations of the Securities Exchange Act of 1934. The case is captioned MICHAEL KENT, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. ARRAY BIOPHARMA INC., CARRIE S. COX, CHARLES M. BAUM, GWEN A. FYFE, KYLE A. LEFKOFF, JOHN A. ORWIN, SHALINI SHARP, RON SQUARER, GIL J. VAN LUNSEN, PFIZER INC., and ARLINGTON ACQUISITION SUB INC., Defendants, Case No. 1:19-cv-01248-UNA (D. Del., July 1, 2019). This action stems from a proposed transaction announced on June 17, 2019 pursuant to which Array will be acquired by Pfizer Inc. and Arlington Acquisition Sub Inc. On June 28, 2019, defendants filed a Solicitation/Recommendation Statement with the United States Securities and Exchange Commission (SEC) in connection with the proposed transaction. In this complaint, Plaintiff alleges that that defendants violated Sections 14(e), 14(d), and 20(a) of the Securities Exchange Act of 1934 in connection with the Solicitation Statement that contained false and misleading material information. With respect to the forecasts for October 2018, June 2, 2019 and June 14, 2019, the Solicitation Statement failed to disclose: (i) all line items used to calculate EBIT; (ii) all line items used to calculate unlevered free cash flow; and (iii) a reconciliation of all non-GAAP to GAAP metrics. The Solicitation Statement also failed to disclose the results of the analyses performed by the Array's financial advisor in connection with the proposed transaction, Centerview Partners LLC. Further, the Solicitation Statement failed to disclose whether the Array entered into any confidentiality agreements that contained standstill and/or "don't ask, don't waive" provisions that are or were preventing the counterparties from submitting superior offers to acquire the Array. Array is a Delaware corporation and maintains its principal executive offices at 3200 Walnut Street, Boulder, Colorado 80301. Array’s common stock is traded on the NasdaqGM under the ticker symbol “ARRY.” Array is a fully integrated biopharmaceutical company focused on the discovery, development, and commercialization of transformative and well-tolerated targeted small molecule drugs to treat patients afflicted with cancer and other high-burden diseases. [BN] The Plaintiff is represented by: Seth D. Rigrodsky, Esq. Brian D. Long, Esq. Gina M. Serra, Esq. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Telephone: (302) 295-5310 Facsimile: (302) 654-7530 E-mail: sdr@rl-legal.com bdl@rl-legal.com gms@rl-legal.com BANK OF AMERICA: Court Denies Class Cert. in Lopez Suit ------------------------------------------------------- The Hon. Vince Chhabria denied on predominance grounds the motion for class certification under Rule 23(b)(3) of the Federal Rules of Civil Procedure in the lawsuit captioned LAURA LOPEZ, et al. v. BANK OF AMERICA, N.A., Case No. 3:18-cv-02346-VC (N.D. Cal.). The evidence, including some of the Plaintiffs' own evidence, shows that some of Bank of America's small business bankers spend over half of their workdays inside the office, while some do not, Judge Chhabria says. California has chosen to use this metric as the primary determinant of whether a salesperson is exempt from the state's overtime laws. Therefore, Judge Chhabria notes, some small business bankers are properly classified as exempt, and some are not. And the only way to determine who falls into which camp is to conduct an employee-by-employee assessment -- an individual undertaking that precludes class certification, Judge Chhabria opines. "It's worth noting, however, that Bank of America's argument against class certification is effectively a concession that it's violating California law as to some of its small business bankers. Nor does Bank of America appear to have any system in place for ensuring that individual small business bankers are classified properly. The evidence suggests that the subset of bankers who are misclassified could be substantial. As a result, while it is not appropriate to certify a damages class on the facts of this case, it may well be appropriate to certify a class seeking injunctive relief," Judge Chhabria wrote in the Order. The administrative motion to file under seal is denied. Judge Chhabria notes that Bank of America did not submit a declaration setting forth a justification for sealing the designated materials, as required by the Local Rules. Even if it had, Judge Chhabria adds, it is highly unlikely that any portion of these documents needs to be sealed -- and they certainly don't need to be sealed in full. The Plaintiffs' motion for sanctions is denied. Judge Chhabria opines that while Bank of America's discovery responses suggest a degree of incompetence, it does not appear that it acted in bad faith. Bank of America's motion for a temporary restraining order is denied. Granting Mr. Wynne's assertion that he does not intend to contact these putative class members (let alone their mothers) in the future, the Bank's request for an injunction preventing such contact is moot, according to the Order. "And although Mr. Wynne's aggressive outreach almost certainly crossed the line, it is unnecessary--at least at this juncture--to address his adequacy as class counsel or otherwise impose sanctions," Judge Chhabria concludes.[CC] BANK OF AMERICA: Young Sues over Unauthorized Text Messages ----------------------------------------------------------- JAMIE YOUNG, on behalf of herself and all others similarly situated, the Plaintiff, vs. BANK OF AMERICA, N.A., the Defendant, Case No. 3:19-cv-03867 (N.D. Cal., July 3, 2019), seeks to recover damages, injunctive relief, and any other available legal or equitable remedies resulting from the illegal actions of Bank of America in sending text messages to Plaintiff on her cellular telephone, in violation of the Telephone Consumer Protection Act. According to the complaint, Jamie Young has not had an account with Bank of America since October 2017, when she closed an account she had opened with them in or around February 2011. Since closing that account, Plaintiff has not had any contact with Bank of America. Nevertheless, on September 15, 2018, nearly a year after terminating her customer relationship with BofA, Plaintiff's cell phone rang, indicating that she had received a text message. The text message stated that BofA had received a request from her for a code. The text message was followed by eight identical messages on October 3, 2018, October 20, 2018, November 6, 2018, November 23, 2018, December 12, 2018, December 29, 2018, January 15, 2019, and February 2, 2019. These text messages invaded Plaintiff's privacy and subjected her to aggravation. The aggravation was exacerbated by BofA's persistent refusal to respond to her repeated inquiries regarding the unauthorized text messages she received. By sending unauthorized text messages to Plaintiff and similarly situated individuals, BofA violated federal law and caused them concrete harm, not only in the form of the frustration and invasion of privacy, but also in the form of payments made to cell phone service providers for the receipt of such wireless spam. Bank of America is a national bank with its headquarters and principal place of business located in Charlotte, NC. Among other things, Defendant is engaged in the business of providing retail banking services to consumers. Defendant operates banking centers, and thus conducts business, throughout the State of California, including within this District.[BN] Attorneys for the Plaintiff are: Hassan A. Zavareei, Esq. Annick M. Persinger, Esq. TYCKO & ZAVAREEI LLP 1828 L Street, NW, Suite 1000 Washington, D.C. 20036 Telephone (202) 973-0900 Facsimile (202) 973-0950 E-mail: hzavareei@tzlegal.com apersinger@tzlegal.com - and - Beth E. Terrell, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 North 34th Street, Suite 300 Seattle, WA 98103 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 E-mail: bterrell@terrellmarshall.com BANKSA: In Talks to Resolve Samra Ponzi Scheme Class Action ----------------------------------------------------------- Lawyerly reports that Westpac unit BankSA is in talks to resolve a class action alleging it failed to detect the fraud of convicted Ponzi schemer Michael Samra. [GN] BIG RIVER: 8th Cir. Vacates Attorney's Fees Disapproval in Barbee ----------------------------------------------------------------- The United States Court of Appeals, Eighth Circuit, issued an Opinion vacating the judgment of the District Court disapproving the Attorney’s Fees in the Settlement in the case captioned Paulette Barbee, Administrator of the Estate of Kimberly Hope Gillock, Plaintiff-Appellant, v. Big River Steel, LLC, Defendant-Appellee. No. 18-2255. (8th Cir.). Paulette Barbee, Administrator of the Estate of Kimberly Hope Gillock (formerly known as Kim Pierce), appeals the district court's order modifying the attorney fees in the parties' settlement agreement. Kim Pierce filed a proposed class action against Big River Steel, LLC (Big River Steel) for unpaid overtime wages. She asserted claims under both the Fair Labor Standards Act (FLSA) and the Arkansas Minimum Wage Act. Pierce and Big River Steel reached a settlement and filed a joint status report notifying the court they had settled and would soon file a voluntary dismissal. The court ordered the parties to submit the settlement for approval, including the proposed agreement and any attorney billing records. The parties complied. After reviewing the parties' settlement agreement, the district court disapproved of both the settlement of the wage claims and the settled amount of attorney fees for independent reasons. Pierce passed away shortly thereafter, and the court stayed the case until it could substitute her estate for her as a party. Barbee, as the estate's administrator, and Big River Steel submitted a new agreement addressing only the district court's concerns on the wage settlement. The district court then approved of the new wage settlement, again disapproved of the amount of attorney fees, and entered a judgment with the full wage settlement amount and a reduced attorney fee amount. Barbee argues on appeal that any required review of the settlement agreement did not extend to settled attorney fees. The Court has never taken a side on this issue. The Court had noted the Eleventh Circuit's opinion but the Court have never had occasion to interpret whether 29 U.S.C. Section 216 requires judicial approval of all FLSA settlements. Because the Court agrees with Barbee that any authority for judicial approval of FLSA settlements in 29 U.S.C. Section 216 does not extend to review of settled attorney fees, the Court needs not decide our view on the circuit split today. This is a question of law, and the Court reviews the issue de novo. This reading of the statute is consistent with the rationale of the circuits that require approval for all FLSA settlements because such approval serves the FLSA's underlying purpose of protecting workers' rights. When the parties negotiate the reasonable fee amount separately and without regard to the plaintiff's FLSA claim, the amount the employer pays to the employees' counsel has no bearing on whether the employer has adequately paid its employees in a settlement. Thus, regardless of whether the Court reads the statute as requiring approval for FLSA settlements, we do not read it as requiring approval of settled attorney fees. Since the Court concludes 29 U.S.C. Section 216 does not require approval of settled attorney fees, the district court erred below. Here, the district court agreed the parties' proposed wage settlement satisfied Barbee's claims. Regardless of whether that assertion of authority was proper, the district court's authority did not extend beyond concluding the merits settlement was satisfactory. The parties were entitled to settle the attorney fee issue, and no law gave the district court authority to interfere with that unconditional right. The Court vacates the portion of the district court's judgment below that addressed settled attorney fees. A full-text copy of the Eighth Circuit's June 20, 2019 Opinion is available at https://tinyurl.com/y5yh5k63 from Leagle.com. Kathlyn Graves -- kgraves@mwlaw.com -- for Defendant-Appellee. Josh Sanford -- josh@sanfordlawfirm.com -- for Plaintiff-Appellant. Steve Rauls, for Plaintiff-Appellant. Nathan A. Read -- nread@mwlaw.com -- for Defendant-Appellee. April Rheaume, for Plaintiff-Appellant. BLOSSOM WEST: Tarax et al Seek OT Pay for Restaurant Staff ---------------------------------------------------------- EFRAIN TARAX TARAX, GETULIO LOPEZ MURILLO, MANUEL JESUS SONTAY HERRERA, and SANTOS TARAX, individually and on behalf of others similarly situated, the Plaintiffs, vs. BLOSSOM WEST INC. (D/B/A BLOSSOM ON COLUMBUS), RONEN SERI, RAMIRO RAMIREZ, JESUS DOE, and CHINO DOE, the Defendants, Case No. 1:19-cv-06228 (S.D.N.Y., July 3, 2019), seeks to recover unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938 and the New York Labor Law. The Plaintiffs are both current and former employees of Defendants Blossom West Inc. The Defendants own, operate, or control a vegan restaurant, located at 507 Columbus Avenue, New York, New York 10024 under the name "Blossom on Columbus". The Plaintiffs have been employed as porters, dishwashers, and ostensibly as delivery workers at the restaurant. The Plaintiffs have worked for Defendants in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that they have worked. Rather, the Defendants have failed to maintain accurate recordkeeping of the hours worked and failed to pay Plaintiffs appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Further, the Defendants have failed to pay Plaintiffs the required "spread of hours" pay for any day in which they have had to work over 10 hours a day. Furthermore, Defendants have repeatedly failed to pay Plaintiffs wages on a timely. Regardless, the Defendants have paid these Plaintiffs at the lowered tip-credited rate. However, under both the FLSA and NYLL, Defendants are not entitled to take a tip credit because these Plaintiffs' non-tipped duties have exceeded 20% of each workday, or 2 hours per day, whichever is less in each day. The Defendants have employed the policy and practice of disguising these Plaintiffs' actual duties in payroll records by designating them as delivery workers instead of non-tipped employees. This has allowed Defendants to avoid paying Plaintiffs Lopez and Sontay at the minimum wage rate and has enabled them to pay them at the lowered tip-credited rate, the lawsuit says.[BN] Attorneys for the Plaintiffs are: 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 BOSE: Seeks Dismissal of Wiretapping, Eavesdropping Class Action ---------------------------------------------------------------- Daniel Sanchez, writing for Digital Music News, reports that two years ago, Kyle Zak, a consumer from Chicago, purchased a $350 pair of Bose wireless headphones. Unbeknownst to him, the company allegedly collects and records the details of music and audio files played through the headphones. Represented by consumer privacy firm Edelson PC, Zak alleged that Bose transmits this data, along with customers' personal identifiers, to third parties, including data miners. The collection process has allegedly been happening through Bose's Connect app. Consumers have no idea this is happening, said Zak and Edelson PC. So, they filed a class-action lawsuit against the company. Filed in the U.S. District Court for the Northern District of Illinois, Eastern Division, Zak listed five causes of action against Bose. First, the company violated the Federal Wiretap Act. First established in 1968, the Wiretap Act prohibits intentional "interception" of "wire, oral, or electronic communications." Second, the headphones/speaker company violated the Illinois Eavesdropping Statute. Third, Bose intruded upon the seclusion of Kyle Zak and other consumers. Dubbed Intrusion Upon Seclusion (a special form of invasion of privacy), the company knowingly transmitted consumer Media information. Fourth, the company's actions directly violate the Illinois Consumer Fraud and Deceptive Business Practice Act (ICFA). Fifth, Bose benefited from hidden collection data. Titled Unjust Enrichment, the company disclosed consumer information to third-party without any knowledge or content. Two months ago, U.S. District Court judge Andrea Wood dismissed Zak's key wiretapping claim. He can't claim the Connect app illegally "intercepted" the names and duration of songs he streamed on Spotify. Simply put, Wood found Zak failed to show Bose was a "party" to the communication. The company couldn't willfully "intercept" this information. Thus, Bose hadn't violated federal wiretapping law. Yet, Judge Wood refused to drop another key claim. Bose has allegedly breached Illinois' Consumer Fraud and Deceptive Business Practices Act. The company has reportedly misled consumers about how it collects and then subsequently shares data. In a 17-page decision, she noted, "The court finds that Zak has pleaded an [Illinois Consumer Fraud Act] violation sufficient to survive the motion to dismiss stage." Now, in an attempt to survive in court, Bose has filed a motion to dismiss the class action lawsuit. "Please, please, please make this case go away." On May 31, the company told Judge Wood to "permanently toss" Zak's wiretapping claims. Bose said his second amended class-action complaint against the company only makes "limited and superficial" changes. Zak's latest filing merely adds "window dressing." He had attempted to once again push the wiretapping claims against the company instead of pushing forward with Judge Wood's original ruling, which allowed the Illinois Consumer Fraud Act violation accusation against Bose to proceed. Arguing the company hadn't actually violated wiretapping and eavesdropping law, Bose wrote, "Inadequate disclosure -- and not illegal interception -- has always been the nature of plaintiff's claim, which is why the court properly dismissed his Wiretap and Eavesdropping Act claims." In addition, Zak had "knowingly and deliberately installed, opened, and used the Bose Connect App with streaming music services." Plus, intercepting track titles played on music streaming services, including Spotify, can't be considered 'content' under existing wiretapping laws. "If it were the content of the communication it would be the song itself -- music and lyrics. But plaintiff alleges only that the app collects record information each time he presses the track forward or backward button. "This demonstrates that what is occurring is not an interception of a communication, but rather the logging of one… Plaintiff does not allege that the Bose [app] listens to -- or can even access -- the songs or podcasts themselves, but only that it logs record information about those songs and podcasts, like the name of the track." Thus, Judge Wood should once again dismiss Zak's wiretapping claims. [GN] BP EXPLORATION: Court Grants Dismissal Bid in Jarquin Suit ---------------------------------------------------------- The United States District Court for the Eastern District of Louisiana issued a Order and Reasons granting Defendants BP Exploration & Production Inc. and BP America Production Company's (BP) Motion for Summary Judgment in the case captioned FREDDY ANTONIO JARQUIN, v. BP EXPLORATION & PRODUCTION INC. ET AL., SECTION I. Civil Action No. 18-9572. (E.D. La.). This case arises from Jarquin's alleged exposure to oil and gas dispersants while he worked as a clean-up worker in response to the Deepwater Horizon oil spill. Jarquin was diagnosed on May 16, 2014 with chronic damage to conjunctiva, chronic rhinosinusitis, and chronic dermatitis at the site of contact. BP does not dispute that Jarquin was a clean-up worker after the oil spill and that he is a member of the class covered by the MSA.8 BP also does not dispute that Jarquin's alleged conditions, diagnosed after April 16, 2012, fit within the MSA's definition of a later-manifested physical condition. Summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the Court determines that there is no genuine dispute of material fact. A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Although the substance or content of the evidence submitted to support or dispute a fact on summary judgment must be admissible, the material may be presented in a form that would not, in itself, be admissible at trial. The party responding to the motion for summary judgment may not rest upon the pleadings but must identify specific facts that establish a genuine issue. A district court has somewhat greater discretion to consider what weight it will accord the evidence in a bench trial than in a jury trial. Where the evidentiary facts are not disputed, a court in a nonjury case may grant summary judgment if trial would not enhance its ability to draw inferences and conclusions. To date, Jarquin has not indicated that he has retained an expert who will testify on his behalf at trial, and he has not disclosed to BP any expert reports in compliance with this Court's May 17, 2019 deadline. The only evidence before the Court with respect to Jarquin's medical condition and that relates to causation is a report of a medical examination performed by Charlie Le, MD (Dr. Le) at the East Jefferson Family Practice (EJFP) health clinic on May 16, 2014. Essentially for reasons assigned by BP in its unopposed motion for summary judgment, the Court finds that Dr. Le's report is not competent summary judgment evidence.15 Jarquin has failed to present a genuine issue of material fact or present any evidence that would support the fact that his injuries were caused by his alleged exposure to oil and dispersants while he worked in response to the spill. The motion for summary judgment is granted and that all claims asserted by Jarquin against BP are dismissed with prejudice. A full-text copy of the District Court's June 20, 2019 Order and Reasons is available at https://tinyurl.com/y6e8m4fk from Leagle.com. Joshua Frances Rabalais, Plaintiff, represented by Howard L. Nations, Nations Law Firm & Jade M. Ruiz, Nations Law Firm, 3793, 3131 Briarpark Dr # 208, Houston, TX 77042 BP Exploration & Production, Inc. & BP America Production Company, Defendants, represented by Sean Matthew Toomey -- stoomey@liskow.com -- Liskow & Lewis, Alexander J. Baynham -- ajbaynham@liskow.com -- Liskow & Lewis, Charles B. Wilmore -- cbwilmore@liskow.com -- Liskow & Lewis, Devin C. Reid -- stoomey@liskow.com -- Liskow & Lewis, Don Keller Haycraft -- dkhaycraft@liskow.com -- Liskow & Lewis & Russell Keith Jarrett -- dkhaycraft@liskow.com -- Liskow & Lewis. BP EXPLORATION: Court OKs Dismissal Bid in Rabalais --------------------------------------------------- The United States District Court for the Eastern District of Louisiana issued a Order and Reasons granting Defendants BP Exploration & Production Inc. and BP America Production Company's (BP) Motion for Summary Judgment in the case captioned JOSHUA FRANCES RABALAIS, v. BP EXPLORATION & PRODUCTION INC. ET AL., SECTION I. Civil Action No. 18-9718. (E.D. La.). This case arises from Rabalais's alleged exposure to oil and gas dispersants while he worked as a clean-up worker in response to the Deepwater Horizon oil spill. Rabalais was diagnosed on May 15, 2014 with chronic damage to conjunctiva, chronic rhinosinusitis, and chronic dermatitis at the site of contact. BP does not dispute that Rabalais was a clean-up worker after the oil spill and that he is a member of the class covered by the MSA.8 BP also does not dispute that Rabalais's alleged conditions, diagnosed after April 16, 2012, fit within the MSA's definition of a later-manifested physical condition. Summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the Court determines that there is no genuine dispute of material fact. A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. To date, Rabalais has not indicated that he has retained an expert who will testify on his behalf at trial, and he has not disclosed to BP any expert reports in compliance with this Court's May 31, 2019 deadline.The only evidence before the Court with respect to Rabalais's medical condition and that relates to causation is a report of a medical examination performed by Jyoti Chakraborti, MD (Dr. Chakraborti) on May 15, 2014. Essentially for reasons assigned by BP in its unopposed motion for summary judgment, the Court finds that Dr. Chakraborti's report is not competent summary judgment evidence.15Rabalais has failed to present a genuine issue of material fact or present competent summary judgment evidence that would support the fact that his injuries were caused by his alleged exposure to oil and dispersants while he worked in response to the spill. That the motion for summary judgment is granted and that all claims asserted by Rabalais against BP are dismissed with prejudice. A full-text copy of the District Court's June 20, 2019 Order and Reasons is available at https://tinyurl.com/yyjhud63 from Leagle.com. Joshua Frances Rabalais, Plaintiff, represented by Howard L. Nations, Nations Law Firm & Jade M. Ruiz, Nations Law Firm, 3793, 3131 Briarpark Dr # 208, Houston, TX 77042 BP Exploration & Production, Inc. & BP America Production Company, Defendants, represented by Sean Matthew Toomey -- stoomey@liskow.com -- Liskow & Lewis, Alexander J. Baynham -- ajbaynham@liskow.com -- Liskow & Lewis, Charles B. Wilmore -- cbwilmore@liskow.com -- Liskow & Lewis, Devin C. Reid -- stoomey@liskow.com -- Liskow & Lewis, Don Keller Haycraft -- dkhaycraft@liskow.com -- Liskow & Lewis & Russell Keith Jarrett -- dkhaycraft@liskow.com -- Liskow & Lewis. BRIGGS RENTALS: Hays et al Seek Minimum & OT Premium Pay -------------------------------------------------------- A class action complaint has been filed against Briggs Rentals LLC and Bobby Briggs for violations of the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA) and the Arkansas Minimum Wage Act (AMWA). The case is captioned CHRISTOPHER HAYS and LINSAY BRADBURY, Each Individually and on Behalf of All Others Similarly Situated, PLAINTIFFS vs. BRIGGS RENTALS LLC and BOBBY BRIGGS, DEFENDANTS, Case No. 4:19-cv-00466-JM (E.D. Ark., July 1, 2019). Defendants allowed Plaintiffs and other hourly employees to record 45 hours per week and paid them accordingly, but refused to allow Plaintiffs and other hourly employees to record their actual hours worked. As a direct result of Defendants' policies, even though Plaintiffs and other hourly employees worked far more than 40 hours in many weeks that they worked for Defendants during time period relevant to this Complaint, they were not paid minimum wage or an overtime premium for all of their overtime hours worked. Briggs Rentals LLC is a domestic, limited liability company registered to do business in the state of Arkansas. The company owns and operates rental property, including apartment complexes, in central Arkansas. [BN] The Plaintiffs are represented by: Blake Hoyt, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: blake@sanfordlawfirm.com BROUSSEAU MANAGEMENT: Leja Seeks to Certify Class Under FLSA ------------------------------------------------------------ The Plaintiffs in the lawsuit styled ROBERT LEJA, Jr., et al. v. BROUSSEAU MANAGEMENT CO., L.L.C., et al., Case No. 3:19-cv-00269-BAJ-EWD (M.D. La.), ask the Court to: (1) conditionally certify this action for purposes of notice and discovery; (2) order Brousseau to produce to Class Counsel the contact information for each putative class member within 10 days of the Court's order; (3) order that judicial notice be sent to all putative class members; (4) approve their proposed notice and consent forms; (5) authorize a 60-day notice period for putative class members to join the case; (6) order the mailing, e-mailing, and text messaging of notice, along with a reminder notice; (7) permit Class Counsel to contact by telephone those putative class members whose contact information is not valid; and (8) order Brousseau to post the Notice and Consent forms in Brousseau's jobsites/offices for the entire opt-in period. In their complaint, the Plaintiffs accuse Brousseau of engaging in practices that flagrantly violate the Fair Labor Standards Act, including failure to pay hourly employees overtime wages required under federal law.[CC] The Plaintiffs are represented by: Matthew S. Parmet, Esq. PARMET PC PO Box 540907 800 Sawyer St. (77007) Houston, TX 77254 Telephone: (713) 999-5228 Facsimile: (713) 999-1187 E-mail: matt@parmet.law The Defendants are represented by: James R. Bullman, Esq. THE BULLMAN LAW FIRM, LLC 201 St. Charles St. Baton Rouge, LA 70802 Telephone: (225) 993-7169 E-mail: james@thebullmanlawfirm.com - and - William H. Caldwell, Esq. THE BARINGER LAW FIRM, L.L.C. 201 St. Charles St. Baton Rouge, LA 70802 Telephone: (225) 383-9953 E-mail: william@baringerlawfirm.com BUCKS COUNTY, PA: To Appeal Jury Verdict in CHRIA Class Action -------------------------------------------------------------- Greg Metz, writing for The Reporter, reports that Bucks County intends to appeal a federal jury's verdict from May 28 which found them to be in violation of Pennsylvania's Criminal History Record Information Act (CHRIA). The county had been disseminating the criminal record history of nearly 67,000 individuals booked in the Bucks County Correctional Facility between 1938 and 2013. Members of the lawsuit, Taha v. County of Bucks, have been awarded punitive damages of $1,000 for each member, with the precise number of eligible recipients to be determined by the court at a later date. Any of the 66,799 individuals processed through the Bucks County Correctional Facility in the 75 year period the county was disseminating this information is eligible to receive damages part of the award. Bucks County was brought into question after criminal history had been disseminated through an inmate lookup tool on the county's website from 2011-2013. How the case began The case was filed in 2013 after Daryoush Taha found his mugshot on "mugshots.com," a commercial site which published criminal history records of individuals who had been incarcerated. At the time of the finding, Taha's record had been ordered to be expunged over 10 years earlier, according to CNN. In 2013, before Taha filed the suit, he wrote a letter to the county asking why the expungement had not been handled. They claimed they did not know Taha's record had not been expunged, according to Jonathan Shub, co-lead counsel for the class. The trial The case lasted five days in the United States District Court for the Eastern District of Pennsylvania. The jury found the county to have "willfully violated" the act, which resulted in punitive damages being awarded to the class. According to Shub, an attorney for Kohn, Swift & Graf, P.C., this was due to the county recklessly disregarding the law by disseminating the information. "We're quite pleased [with the verdict] because we believe the jury sent a signal that the reckless treatment of one's information has consequences," Shub said. The county's intent to appeal is based upon their reasoning that the inmate lookup tool did not violate the act, and they specifically did not do so in a willful manner. "We have always believed -- and continue to believe -- that the County's inmate lookup tool did not violate the Pennsylvania Criminal History Record Information Act ("CHRIA"), much less that the County willfully violated that Act," according to the Bucks County Commissioners in a press release. "Thus, we vigorously dispute that Taha or the class members he represents are entitled to any punitive damages at all." They argue the inmate lookup tool was launched with a single purpose of empowering crime victims by providing information to enable them to verify the whereabouts of those accused of crimes against them. Applicability to other county/state "inmate lookup tools" Prior to the launch of Bucks County's inmate lookup tool, the Commonwealth of Pennsylvania developed the Statewide Automated Victim Information and Notification program (SAVIN). SAVIN provides victims of crimes with information regarding offenders in Pennsylvania county prisons and, according to the county, "enables crime victims to quickly take steps to ensure their safety by notifying the victims of any changes in an offender's custody status." This information became easily available because of commercial mugshot websites. "Those companies, such as mugshots.com, specifically targeted the County and other public entities by taking the information from the inmate lookup tools and using it for their own purposes to obtain money from those who had criminal records," the county said in its press release. Bucks County also claims numerous other counties throughout Pennsylvania maintained inmate lookup tools that contained the same or similar information, and they continued to do so for years. If other counties are found to be disseminating similar information, they may also be at risk of facing lawsuits awarding damages for CHRIA violations. "I think this decision will have a chilling impact on the use of locator tools that violate CHRIA," Shub said. Going forward Bucks County hopes that a different decision will be reached in appellate court. "We intend to take all appropriate actions through the legal process to challenge the verdict in this case," county commissioners said. Though Shub believes it is the county's prerogative to appeal, he thinks doing so "will further display an arrogance that Bucks County has displayed throughout this case." In the meantime, Kohn, Swift & Graf, P.C. is trying to locate individuals who are a part of the class, and those who may be eligible can visit chrialitigation.com to provide their information. The total award of the ruling could amount to as much as $67 million. [GN] CANADA: Farmers to Launch Class Action Over Handling of CWB File ---------------------------------------------------------------- Brian Cross, writing for The Western Producer, reports that the Canadian Wheat Board may be gone, but it hasn't been forgotten. Prairie farmers opposed to the way the CWB was dismantled made an appearance in the Manitoba Court of Queen's Bench May 28. The farmers, supported by an organization known as Friends of the Canadian Wheat Board (FCWB), hope to launch a class action lawsuit against the federal government for its handling of the CWB file. In a May 29 news release, FCWB chair Stewart Wells described the recent court hearing in Manitoba as "a series of technical appeals by Ottawa to delay justice and frustrate prairie farmers' efforts to hold them to account for their stewardship of farmers' money held by the CWB." "The Harper government did not treat farmers fairly when it dismantled the CWB in 2012," Wells said. "We contend their irresponsible actions resulted in over $150 million being withheld from farmers in the 2010-11 and 2011-12 crop years. "The problem has now been compounded by the Liberal government's failure to act responsibly and so the issue is still working its way through the court." Andrew Dennis, a farmer from Brookdale, Man., is the plaintiff in a yet-to-be-certified class action lawsuit. "We hope a favourable ruling (in Manitoba's Court of Queen's Bench) will clear the way to the next step, which is a hearing to have the action certified as a class action with myself as representative plaintiff," Dennis said. [GN] CASTLE PARKING: Faces Evanston Insurance Suit in N.D. Georgia ------------------------------------------------------------- A class action lawsuit has been filed against Castle Parking Solutions, LLC. The case is assigned to EVANSTON INSURANCE COMPANY, individually and on behalf of all others similarly situated, Plaintiff v. CASTLE PARKING SOLUTIONS, LLC; MENTEWAB AYALEW; and JIM MCANALLY, Defendants, Case No. 1:19-cv-02674-LMM (N.D. Ga., June 12, 2019). The case is assigned to Judge Leigh Martin May. Castle Parking Solutions, LLC offers car parking and management services. [BN] The Plaintiff is represented by: Michael J. Athans, Esq. FREEMAN MATHIS & GARY, LLP –ATL 100 Galleria Parkway, Suite 1600 Atlanta, GA 30339-5948 Telephone: (770) 818-1000 Facsimile: (770) 937-9960 E-mail: mathans@fmglaw.com CEMTREX INC: Court Approves Securities Class Action Settlement -------------------------------------------------------------- Cemtrex Inc. (Nasdaq: CETX, CETXP, CETXW), a leading global technology company, on June 4 disclosed that the court has approved the previously announced settlements in the alleged securities class action lawsuit and related shareholder derivative litigations, filed in the Eastern District of New York and New York state court. Under the class action settlement, the Company specifically denies any liability or that it has engaged in any wrongdoing. On behalf of the defendants, the Company's insurer will pay $625,000 to the class of plaintiffs to resolve all claims asserted or could have been asserted in the litigation. Under the derivative litigation settlement, the Company and the directors and officers of the Company named as defendants also deny any liability or wrongdoing in connection with the allegations contained in the lawsuit. The terms of the settlement require the Company to implement certain corporate governance changes and modify certain governance practices, and the Company's insurer will pay $100,000 to the plaintiffs' counsel. Like the class action settlement, the derivative litigation settlement resolves all claims that were or could have been asserted in the litigations. "We are pleased to finally have the court approval of our settlement, and clear this cloud that has been hanging over us for the past two years," said Saagar Govil, Cemtrex's Chief Executive Officer, "This settlement has concluded these lawsuits expeditiously and further avoids interference on operations, which we believe is beneficial to the Company and its shareholders," continued Mr. Govil. The full settlement terms and all other filings in the class action litigation can be found under the case caption: Cullinan v. Cemtrex, Inc. et al., Case No. 2:17-cv-01067-JFB-AYS (E.D.N.Y.); the full settlement terms and all other filings in the derivative litigations are available under the following captions: Desmond-Newman v. Govil, et al., Case No. 2:18-cv-03992 (E.D.N.Y.), and Alami v. Govil, et al., No. 606635/2017 (N.Y. Sup. Ct., Suffolk County). The Company is represented by Doug Greene, a nationally prominent securities litigation attorney, of the law firm of BakerHostetler. Cemtrex, Inc. (CETX) -- http://www.cemtrex.com-- is a diversified technology company that's driving innovation in a wide range of sectors, including smart technology, virtual and augmented realities, advanced electronic systems, industrial solutions, and intelligent security systems. [GN] CENTERPLATE OF DELAWARE: Wins Prelim. OK of Raquedan Settlement --------------------------------------------------------------- The Hon. Lucy H. Koh grants the parties' motion for preliminary approval of third amended class action settlement in the lawsuit entitled MONIQUE RAQUEDAN, et al. v. CENTERPLATE OF DELAWARE, INC., Case No. 5:17-cv-03828-LHK (N.D. Cal.). These persons are certified as Class Members solely for the purpose of entering a settlement in this matter: All non-exempt employees of Centerplate who worked for Centerplate in the State of California at any time from May 24, 2013, to March 31, 2019, excluding those individuals who already have resolved all the claims asserted in the Action, whether by settlement or adjudication. Class Members will receive a Settlement Share unless they submit a valid and timely Opt-Out Form not later than 45 days after the mailing of the Fourth Amended Class Notice. Simpluris, Inc., is appointed to act as the Settlement Administrator, pursuant to the terms set forth in the Settlement. Plaintiffs Monique Raquedan and Ronald Martinez are appointed the Class Representatives. Shaun Setareh, Esq., Thomas Segal, Esq., and Farrah Grant, Esq., of Setareh Law Group are appointed Class Counsel. A final approval hearing will be held on November 14, 2019, at 1:30 p.m., to determine whether the Settlement should be granted final approval. In another order and in connection with the settlement, the Court finds as moot the Plaintiffs' pending motion for class certification, and the Plaintiffs' pending administrative motion for leave to supplement the Plaintiffs' motion for class certification.[CC] CHARLESTON, SC: Coastal Conservation League Files Class Action -------------------------------------------------------------- Taylor Murray, writing for WCBD, reports that the Coastal Conservation League is filing a class action lawsuit challenging the use of the half-cent sales tax funds for the extension of I-526. Right now, the State Infrastructure Bank would pay $420 Million and the Charleston county would pay $305 Million to complete the project that has a $725 million-dollar price tag. The Executive Director for the Coastal Conservation League, Laura Cantral, says, "We are concerned and think that it's time to hold our elected officials accountable… We have serious concerns and questions about the legality of the contract." Under a three-party, intergovernmental contract, Charleston county, the S.C. Department of Transportation and the S.C. Transportation Infrastructure Bank will fund the $725 million-dollar project together. All three parties are defendants in the lawsuit. The Coastal Conservation League says that Charleston County is breaking its contract with voters by obligating sales-tax money to cover its portion of the I-526 extension project. "When voters were asked to vote for the 2016 half-cent sales tax to fund a number of projects related to transportation and drainage priorities, this project was not on that list," Cantral said. They claim that voters have been misled by the county about which projects the 2016 sales tax dollars will be allocated to. "We believe that this is a violation of a contract with the voters to now want to use this money for other purposes than the things that were on this list that voters thought they were voting for, and that need to be complete, and are priorities," Cantral said. Charleston County officials tell News 2 that they do want to provide any comment on the claims in this lawsuit. [GN] CHASE BANK: Sued Over Interest on Credit Card Pain in Full ---------------------------------------------------------- Dena Aubin, writing for Reuters, reports that Chase Bank has been hit with a proposed nationwide class action in Delaware accusing it of charging its credit-card customers interest on purchases that are paid in full by the payment deadline, contrary to promises in its card agreements. Filed on Monday in Wilmington federal court, the lawsuit said Chase tells customers it will give them an interest-free grace period on new purchases when a balance is paid in full, but in fact it eliminates the grace period if the entire balance was not paid off the previous two months. [GN] CHUY'S OPCO: Humphrey Seeks Proper OT Pay for Assistant Managers ---------------------------------------------------------------- A class action complaint has been filed against Chuy's Opco, Inc. for alleged violations of the overtime provisions of the Fair Labor Standards Act (FLSA) and the Arkansas Minimum Wage Act (AMWA). The case is captioned TAUSHA HUMPHREY, Individually and on Behalf of All Others Similarly Situated, PLAINTIFF, v. CHUY'S OPCO, INC., DEFENDANT, Case No. 4:19-cv-00464-KGB (E.D. Ark., July 1, 2019). Plaintiff Tausha Humphrey brings this collective action for declaratory judgment, monetary damages, liquidated damages, prejudgment interest, and costs, including a reasonable attorney's fee, as a result of Defendant's failure to pay Plaintiff and other salaried assistant managers proper overtime compensation for hours worked in excess of 40 hours per week. Chuy's Opco, Inc., is a foreign, for-profit corporation registered to do business in the state of Arkansas and may receive service of process through its registered agent The Corporation Service Company at 300 South Spring Street, Suite 900, Little Rock, Arkansas 72201. The company directly operates Chuy's brand Tex-Mex restaurants in Alabama, Arkansas, Colorado, Florida, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Missouri, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas and Virginia. It maintains a website at https://www.chuys.com. [BN] The Plaintiff is represented by: Blake Hoyt, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford Road, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: blake@sanfordlawfirm.com josh@sanfordlawfirm.com CICERO, IL: Class of Female Detainees Certified in Adair Suit ------------------------------------------------------------- The Hon. Matthew F. Kennelly certifies a class in the lawsuit captioned LESIA ADAIR, ANITA DONATO, JORDAN GARCIA, VERONICA GARCIA, and ARECELI VEGA, on behalf of themselves and others similarly situated v. TOWN OF CICERO, Case No. 1:18-cv-03526 (N.D. Ill.), under Rule 23(b)(3) of the Federal Rules of Civil Procedure: all female detainees who were or will be in the future detained at the Town of Cicero Police Department lock-up facility for eight hours or more during the time period of May 18, 2016 to the present. The Court appoints attorneys Adele D. Nicholas, Esq., Mark G. Weinberg, Esq., and Richard Dvorak, Esq., as class counsel. The status hearing set for August 13, 2019, is vacated and advanced to July 22, 2019, at 9:30 a.m. The parties are directed to confer regarding the form of an appropriate notice to the class and are to file a joint status report including a joint proposal or separate proposals by July 18, 2019. The Plaintiffs are five women, who were detained at a lock-up facility operated by the police department of the Town of Cicero. They have sued Cicero, alleging that the configuration of the lock-up facility required them to use the bathroom (and thereby expose their genitals) in full view of male lock-up employees and male detainees. The Plaintiffs contend that Cicero is liable under Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), because the facility's configuration constitutes an official policy that causes male lock-up employees to engage in unreasonable searches in violation of the Fourth Amendment to the U.S. Constitution.[CC] CLOUDERA INC: Faces Franchi Suit over 53% Drop in Share Price ------------------------------------------------------------- ANTHONY FRANCHI, individually and on behalf of all others similarly situated, Plaintiff v. CLOUDERA, INC.; INTEL CORPORATION; THOMAS J.REILLY; JIM FRANKOLA; PRIYA JAIN; MICHAEL A. OLSON; MARTIN I. COLE; KIMBERLY HAMMONDS; ROSEMARY SCHOOLER; STEVE J. SORDELLO; MICHAEL A. STANKEY; ROBERT BEARDEN; PAUL CORMIER; PETER FENTON; and KEVIN KLAUSMEYER, Defendants, Case No. 19CV348790 (Cal. Super., Santa Clara Cty., June 11, 2019) is a class action against Cloudera's common stock issued in connection with its January 3, 2019 acquisition of and merger with Hortonworks, Inc. The Plaintiff alleges in the complaint that the Registration Statement filed by the Defendants with the SEC were false and misleading and omitted material facts rendering those financial and operational statements materially misleading. The Registration Statement concealed that Cloudera's Hadoop offerings were facing increased competition from next-generation cloud products and services offered by Amazon Web Services, Microsoft Azure, and Google Compute Cloud. As a result, Cloudera was losing customers and market share at an untenable rate. The Registration Statement also failed to state that the increased competition, along with Cloudera's constantly in-flux roadmap, was negatively impacting Cloudera's ongoing business relations with its customers. With the benefit of the misrepresentations and omissions in the Registration Statement, the Defendants were able to complete the merger. But when the truth of the Defendants' misrepresentations and omissions became known, the price of Cloudera's shares fell sharply. On June 10, 2019, the day before this action commenced, Cloudera's share closed at $5.18, representing a nearly 53% decline from the approximate $11 price per share on the exchange date for the merger. Cloudera, Inc. provides a suite of data analytics and management products in the United States, Europe, and Asia. The company provides consulting, professional, and education services. It serves corporate enterprises and public sector organizations primarily through its direct sales force. The company has strategic partnerships with Intel Corporation and IBM. Cloudera, Inc. was founded in 2008 and is headquartered in Palo Alto, California. [BN] The Plaintiff is represented by: John T. Jasnoch, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP 600 W. Broadway, Suite 3300 San Diego, CA 92101 Telephone: (619) 233-4565 Facsimile: (619) 233-0508 E-mail: jjasnoch@scott-scott.com COMMUNITY HEALTH: Faces Securities Class Action in Tennessee ------------------------------------------------------------ Ayla Ellison, writing for Becker's Hospital Review, reports that a federal class-action complaint filed May 30 alleges Franklin, Tenn.-based Community Health Systems and three top executives made false and misleading statements about the company's business that artificially inflated its stock price. The complaint, pending in U.S. District Court for the Middle District of Tennessee, specifically alleges that between Feb. 20, 2017, and Feb. 27, 2018, CHS failed to disclose to investors that it had understated its contractual allowances and provision for bad debts, which caused the company to overstate its net revenue and understate its net loss. During that roughly one-year period, CHS and three of its executives -- Chairman and CEO Wayne T. Smith, CFO Thomas J. Aaron and former CFO W. Larry Cash -- allegedly made false and misleading statements that improperly propped up the company's stock price. According to the complaint, CHS and the executives misled investors about the company's "financial well-being" and their omissions and misstatements came to light on Feb. 28, 2018, when the company announced its financial results for 2017. At that time, CHS allegedly reported a $591 million increase to contractual allowances and bad debt provision. On this news, the company's share price fell more than 17 percent to close at $5.12 per share on Feb. 28, according to the complaint. The alleged misstatements and omissions of CHS and its top executives resulted in investors buying the company's securities at artificially inflated prices between Feb. 20, 2017, and Feb. 27, 2018. Caleb Padilla filed the lawsuit on behalf of himself and all others similarly situated. He allegedly suffered damages in connection with his purchase of CHS shares at an artificially inflated price. Mr. Padilla is seeking an award of monetary damages proven at trial, in addition to attorney's fees and costs. CHS did not immediately respond to Becker's request for comment. [GN] CORTEVA, INC: Thondukolam et al. Sue over DuPont Retirement Plan ---------------------------------------------------------------- A class action lawsuit has been filed against Corteva, Inc. et al. on behalf of participants in the U.S. DuPont Pension and Retirement Plan, pursuant to the Employee Retirement Income Security Act of 1974. The plaintiffs seek permanent injunctive relief, declaratory plan-wide relief, make-whole relief for their losses, and/or disgorgement of ill-gotten profits against the Defendants. According to the complaint, nearly two years ago, The Dow Chemical Company merged with the 217-year-old E.I. du Pont de Nemours and Company, one of the oldest companies in the United States. The combined entity, DowDuPont, was the largest chemical conglomerate in the world. The two historical companies had intended and planned from the beginning to separate into three wholly independent companies and move the Plan to one of the newly formed companies. Barely a year later more details on the plan were finally released when, on November 1, 2018, Ed Breen, CEO of DowDuPont, announced that the Plan, along with Historical DuPont, were moving to a company with the trade name Corteva Agriscience, a spin-off purely focused on agriculture. The existence of Historical DuPont, the Plan's sponsor for more than a century and the company for whom the plan participants worked, would be mostly nominal, as all of the asset and business lines of that company other than its agricultural businesses would stay with the New DuPont or the New Dow, while all of its pension liabilities, along with tremendous litigation liabilities, would transfer. Retirees were told by Breen to take comfort in the fact that Corteva was going to be "highly rated" and that a recent contribution of $1.1 billion had been made to top up the Plan which, at the time, was still short of being fully-funded by several billion dollars. In fact, the shortfall was more than $3.2 billion at the end of 2018 when using the artificially inflated interest rates amended into ERISA by MAP-21 and more than $5.9 billion at the end of 2018 using unadjusted, traditional ERISA rates as described in greater detail infra. Using artificially high interest rates to calculate statutory segment rates decreases the funding shortfall that a Plan is required to disclose to participants annually. At the same time, these inflated interest rates decrease the minimum amount a plan sponsor is required to be contribute each year. Understated liabilities and reduced contributions are a double whammy. Not only are the Plan's liabilities understated, but, because liabilities are directly linked with funding requirements, less cash is being invested to cover future benefits. Should Corteva suffer any downturns in its business, retirees are at risk. More importantly, Historical DuPont, the steward of the Plan since its formal adoption on September 1, 1904 is no longer a functioning business capable of meeting its funding obligations under the Plan. Instead, it is a wholly-owned subsidiary of Corteva, to whom the Plan participants must now turn for their promised benefits, the. In violation of ERISA and in violation of their fiduciary duties to retirees, Dow, DuPont, Plan Sponsor and certain individual officers and directors have, among other violations, acted disloyally and engaged in prohibited transactions by putting their own financial interests in front of retiree earned benefits. These individuals and entities are motivated by self-interest and have fatal conflicts of interest that prevent them from making appropriate impartial decisions about the future of more than 120,000 retirees and their families, the lawsuit says. The case is captioned as KRISHNAN R. THONDUKOLAM, STEPHEN W. RECORDS, WILLIAM C. MALLONEE and DAVID L. EVERETT, individually and as representatives on behalf of a class of similarly situated persons,the Plaintiffs, vs. CORTEVA, INC., DOW INC., DOWDUPONT INC., DUPONT DE NEMOURS, INC., E.I. DU PONT DE NEMOURS AND COMPANY, THE DOW CHEMICAL COMPANY, U.S. DUPONT PENSION AND RETIREMENT PLAN, THE ADMINISTRATIVE COMMITTEE, BENEFIT PLAN ADMINISTRATION COMMITTEE, DOWDUPONT, INC., BOARD OF DIRECTORS, LAMBERTO ANDREOTTI, AJAY BANGA, JACQUELINE K. BARTON, JAMES A. BELL, EDWARD D. BREEN, ROBERT A. BROWN, ALEXANDER M. CUTLER, RICHARD K. DAVIS, JEFF M. FETTIG, MARILYN A. HEWSON, LOIS D. JULIBER, PAUL POLMAN, JAMES M. RINGLER, RUTH G. SHAW, LEE M. 18 THOMAS, HOWARD UNGERLEIDER, PATRICK J. WARD, E.I. DU PONT DE NEMOURS AND COMPANY BOARD OF DIRECTORS, ELEUTHERE I. DU PONT, JAMES L. GALLOGLY, ULF MARK SCHNEIDER, THE DOW CHEMICAL COMPANY BOARD OF DIRECTORS, ANDREW N. LIVERIS, RONALD C. EDMONDS, MARK LOUGHRIDGE, RAYMOND J. MILCHOVIC, ROBERT S. MILLER, DENNIS H. REILLEY, JENNIFER SLOAN, BENITO CACHINERO-SÁNCHEZ, JOHANNA SŌDERSTRÖM and NICHOLAS FANANDAKIS, the Defendants, Case No. 3:19-cv-03857-SK (N.D. Cal., July 3, 2019). Attorneys for the Plaintiffs and the Proposed Class are: Elizabeth Hopkins, Esq. KANTOR & KANTOR 19839 Nordhoff Street Northridge, CA 91324 Telephone: (818) 886-2525 Facsimile: (818) 350-6274 E-mail: ehopkins@kantorlaw.net - and - W. Daniel Miles, III, Esq. James Eubank, Esq. BEASLEY ALLEN CROW METHVIN PORTIS & MILES, P.C. 218 Commerce Street Montgomery, AL 36104 Telephone: (800) 898-2034 Facsimile: (334) 965-7555 E-mail: dee.miles@beasleyallen.com james.eubank@beasleyallen.com - and - Thomas O. Sinclair, Esq. Rebecca D. Gilliland, Esq. SINCLAIR LAW FIRM, LLC 2000 SouthBridge Parkway, Suite 601 Birmingham, AL 35209 Telephone: (877) 249-0091 Facsimile: (205) 868-0894 Email: tsinclair@sinclairlawfirm.com rgilliland@sinclairlawfirm.com - and - Edward S. Stone, Esq. EDWARD STONE LAW P.C. 175 West Putnam Avenue, 2nd Floor Greenwich, CT 06830 Telephone: (203) 930-3401 Facsimile: (203) 348-8477 E-mail: eddie@edwardstonelaw.com COSTA DEL MAR: Class Certification of Buyers of Sunglasses Sought ----------------------------------------------------------------- The Plaintiff in the lawsuit styled TROY SMITH, individually and on behalf of all others similarly situated v. COSTA DEL MAR, INC., a Florida corporation, Case No. 3:18-cv-01011-TJC-JRK (M.D. Fla.), seeks an order certifying this class: All citizens in the United States who, prior to Costa's switch to a "Limited Lifetime Warranty," purchased a pair of Costa sunglasses backed by a Lifetime Warranty and who, within the applicable limitations period, paid Costa a fee to repair or replace those sunglasses damaged by a manufacturer's defect. Excluded from the Class are: (1) Defendant, any entity or division in which the Defendant has a controlling interest, and their legal representatives, officers, directors, assigns, and successors; (2) the judge to whom this case is assigned and the judge's staff; and (3) counsel for each of the parties in this case. Mr. Smith also asks the Court to (a) appoint his counsel from Holland & Knight LLP as class counsel, (b) appoint him as class representative; and (c) award other and further relief as the Court deems just and proper.[CC] The Plaintiff is represented by: Peter P. Hargitai, Esq. Joshua H. Roberts, Esq. Laura B. Renstrom, Esq. Michael M. Gropper, Esq. HOLLAND & KNIGHT LLP 50 North Laura Street, Suite 3900 Jacksonville, FL 32202 Telephone: (904) 353-2000 Facsimile: (904) 358-1872 E-mail: peter.hargitai@hklaw.com joshua.roberts@hklaw.com laura.renstrom@hklaw.com michael.gropper@hklaw.com The Defendant is represented by: Sara F. Holladay-Tobias, Esq. Emily Y. Rottmann, Esq. Justin Opitz, Esq. MCGUIREWOODS, LLP 50 North Laura Street, Suite 3300 Jacksonville, FL 32202 Telephone: (904) 798-2662 E-mail: stobias@mcguirewoods.com erottmann@mcguirewoods.com jopitz@mcguirewoods.com DETROIT PROPERTY: James Moves to Certify Class of Property Buyers ----------------------------------------------------------------- The Plaintiffs in the lawsuit entitled NATALIE JAMES, et al. v. DETROIT PROPERTY EXCHANGE, et al., Case No. 2:18-cv-13601-SFC-SDD (E.D. Mich.), ask the Court to certify a class defined as: all persons who sought to purchase real property from any of the Defendants at any time from November 19, 2015 through final judgment, and who have signed: (1) any document that Defendants characterize as necessary for a "Rent to Own" transaction, OR (2) two or more of the following documents drafted by or on behalf of Defendants: "lease," "option to purchase," "real estate purchase agreement," OR (3) a Land Contract with Defendants. The case arises from Defendant Michael Kelly's alleged use of numerous entities--including Defendants Detroit Property Exchange, American Tax Refund, LLC and others--to perpetrate a predatory seller-financing scheme involving the purported "sale" of real property in Detroit, Michigan. The Plaintiffs filed this lawsuit on behalf of themselves and others similarly situated, seeking: a declaratory judgment that the standardized agreements they have executed with the Defendants are land contracts or equitable mortgages under Michigan law; to enjoin the Defendants' abusive practices; additional equitable relief; and damages pursuant to 15 U.S.C. Section 1640(a) for the Defendants' alleged failure to provide mandatory disclosures in violation of the Truth in Lending Act and the Homeownership Equity Protection Act. The Plaintiffs also ask the Court to appoint them as Class Representatives, and appoint Mantese Honigman, P.C. and Michigan Legal Services as co-Class Counsel.[CC] The Plaintiffs are represented by: Theresamarie Mantese, Esq. Kathryn R. Eisenstein, Esq. James A. Buster, Esq. MANTESE HONIGMAN, P.C. 1361 E. Big Beaver Rd. Troy, MI 48083 Telephone: (248) 457-9200 E-mail: tmantese@manteselaw.com keisenstein@manteselaw.com jbuster@manteselaw.com - and - Marilyn Mullane, Esq. Joe McGuire, Esq. MICHIGAN LEGAL SERVICES 2727 Second Avenue, Suite 333 Mailbox #37 Detroit, MI 48201 Telephone: (313) 964-4130 E-mail: mmullane@milegalservices.org jmcguire@milegalservices.org DISH NETWORK: 4th Cir. Affirms $61MM Damages in TCPA Class Action ----------------------------------------------------------------- Seth Fortin, Esq., Esther McDonald, Esq., and Jennifer Riley, Esq., of Seyfarth Shaw LLP, in an article for JDSupra, report that on May 30, 2019, the Fourth Circuit issued an opinion in Krakauer v. Dish Network, L.L.C., No. 18-1518 (4th Cir. May 30, 2019), that paved the way for TCPA plaintiffs to collect historic awards from unsuspecting defendants. The Fourth Circuit held that TCPA plaintiffs need not show any threshold level of injury to have standing, so long as they prove the statutory elements of a TCPA claim; the TCPA creates a simple cause of action that is "conducive to class-wide disposition" without reference to individualized inquiries; and Dish Network could be held responsible for the actions of its third-party marketer even if it repeatedly admonished the third party against violating the law and its contracts disclaimed any agency relationship. As a result, companies should be wary of using third parties to conduct telemarketing without appropriate oversight. Case Background Plaintiff Thomas Krakauer placed his number on the national Do-Not-Call registry. Nonetheless, he received multiple calls from a company called Satellite Systems Network ("SSN") trying to sell him the services of defendant Dish Network, L.L.C. Krakauer sued Dish under the Telephone Consumer Protection Act ("TCPA") on behalf of a class of persons whose numbers had been listed on the registry for at least 30 days and who had received two or more calls on behalf of Dish in the course of a year. The district court certified the class in 2015. A year later, Dish moved to dismiss for lack of Article III standing, arguing that many or most class members did not experience an injury that would have risen to the level of a cause of action at common law. The district court denied the motion, and the case proceeded to trial. The district court charged the jury with determining: (1) whether SSN was acting as Dish's agent when it called consumers; (2) whether SSN made multiple calls to the class members' numbers within the relevant period; and (3) the appropriate damages award for such calls. The jury returned a verdict for plaintiff on the first two points and assigned damages of $400 per call. The district court then determined, as a matter of law, that Dish acted willfully and knowingly, allowing an award of treble damages "to deter Dish from future violations and . . . give appropriate weight to the scope of the violations." Krakauer, No. 18-1518 at *29. Dish appealed the judgment. The Fourth Circuit's Opinion In an opinion by Judge Wilkinson, the Fourth Circuit considered three issues: (1) whether the class as certified had Article III standing to bring claims; (2) whether the district court correctly applied the factors for class certification, especially commonality and predominance, and whether the class was overbroad; and (3) whether Dish was responsible for SSN's calls, including whether it had acted willfully and knowingly in not remedying SSN's alleged misconduct. Id. at *10. Dish argued that many, if not most, class members lacked standing because their injury did not rise to "a level that would support a common law cause of action." Id. at *13. The Fourth Circuit rejected this argument, relying on the Supreme Court's guidance in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016). Spokeo held that traditional standing requirements, including a concrete and particular injury, applied to statutory causes of action, and that Congress could not create a cause of action without an underlying injury that would have been cognizable under the common law. The Fourth Circuit found that receipt of repeated, unwanted telephone marketing by someone who had taken steps to avoid such marketing was a type of injury cognizable at common law -- an intrusion on privacy. Id. at *13-14 (citing Spokeo, 136 S.Ct. at 1549). Next the Fourth Circuit addressed the district court's certification of a class under Rule 23(b)(3), finding that the simple scheme created by Congress avoided the kinds of individualized determinations that "so often plague class actions." Id. at *16-18. Dish argued that many class members did not have a claim because they were not "subscribers" to telephone service, and only a "subscriber" could place a number on the Do-Not-Call registry. But the Fourth Circuit rejected this argument, noting that the plain text of the statute allowed a private right of action by any "person" who received unwanted calls, not just subscribers, and a non-subscriber living in the house where the call was received could suffer the same privacy intrusion as the subscriber. Id. at *19. The Fourth Circuit also determined that the class was properly ascertainable because the data on potential class members was found in the call data of the defendant companies and the Do-Not-Call registries. Id. at 22-23. Left unspoken in the Fourth Circuit's analysis, however, was how to determine who received the phone call at a given number and thus who experienced the injury. Although the SSN/Dish call data revealed numbers called, it did not necessarily reveal the identity of the persons who received unwanted calls. The Fourth Circuit gave the example of a subscriber wife whose husband received a call and noted that the husband could experience an injury to his right to privacy. Id. at 21. But the Fourth Circuit did not explain how it possibly could identify the husband from the company records and, as a result, how it could provide compensation to the real injured party (the recipient) without an individualized investigation. This slippage between subscribers and call recipients also muddies the standing inquiry. The Fourth Circuit justifies reading a phone call as an intrusion on privacy because the recipient "took steps to avoid" such calls by placing his number on the Do-Not-Call registry. Id. at 12. But if the recipient is not the subscriber, did he actually take such steps? Finally, the Fourth Circuit addressed whether Dish could be held liable for SSN's unwanted calls, a question that turned on whether SSN was acting as Dish's agent when it made the calls. Dish argued that it was not, pointing to contracts that characterized the relationship as independent and not an agency relationship. Id. at * 27-28. But the Fourth Circuit held that a party's contractual characterization of the relationship is irrelevant; it is the nature of the relationship that matters. The Fourth Circuit held that it was it was reasonable for the jury to conclude that SSN was Dish's agent because their contract "afford[ed] Dish broad authority over SSN's business, including what technology it used and what records it retained" and because Dish claimed to have the right to monitor SSN to ensure compliance with the TCPA. Id. at *27. The Fourth Circuit also held that Dish had knowledge of SSN's violations of the TCPA, and its failure to act to stop such violations was evidence that SSN was acting within the scope of its authority. Id. Although Dish argued that it had repeatedly instructed SSN to follow the law in acting on Dish's behalf, the Fourth Circuit held that these verbal instructions were outweighed by Dish's "failure to respond to" statutory violations "in any serious way" while it was "profiting handsomely from SSN's sales tactics. Id. at *28-29. The Fourth Circuit also approved the district court's finding that Dish had acted willfully and knowingly. The Fourth Circuit relied heavily on the fact that Dish had notice of alleged violations via "lawsuits and enforcement actions" as well as "consumer complaints" but "did nothing to monitor, much less enforce, SSN's compliance with the telemarketing laws." Id. at *31. Implications The Fourth Circuit provided ample reason for companies to be cautious in drafting contracts with third-party marketers and overseeing their activities. The Fourth Circuit confirmed that a company can be held liable for the behavior of a contractor making calls on its behalf, even if it "includes certain language in a contract or issues the occasional perfunctory warning." Id. at *32. A court will "look past the formalities and examine the actual control exercised." Id. Indeed, contractual language requiring one party to comply with the law and giving the other party the right to monitor compliance may even be viewed as a sign of "control" and agency. Id. at 27. And, if a company has the right to control and to monitor compliance, the failure to do so may be viewed as a willful decision to ignore potential violations of the law. Thus, companies should carefully consider the structure of their contractual relationships. The Fourth Circuit also relaxed the standard for certification of such claims by suggesting that Congress has a great deal of latitude to intentionally structure consumer protection statutes to be class-friendly and to avoid individualized inquiries. Id. at *18. In the Fourth Circuit's view, so long as the statutory violation causes some concrete and particular injury, even if it would be viewed as minor or de minimis under the common law, Congress may impose statutory damages for it, and those damages need not be tightly targeted to the magnitude of the injury. As the Fourth Circuit's seeming conflation of subscribers and call recipients shows, in the case of privacy interests, a strong nexus between the claim and a class member's own efforts to protect his privacy also may not be necessary. Thus, companies subject to consumer protection statutes like the TCPA should take less comfort in arguments regarding standing or the need for individualized consideration of class members' injuries. [GN] DOUGLAS PARKING: Underpays Parking Attendants, Bang Alleges ----------------------------------------------------------- JOHN BANG, individually and on behalf of all others similarly situated, Plaintiff v. DOUGLAS PARKING, LLC; LELAND DOUGLAS; STEVEN DOUGLAS; DAVID DOUGLAS; and DOES 1 THROUGH 50, INCLUSIVE, Defendants, Case No. CGC-19-576648 (Cal. Super., San Francisco Cty., June 12, 2019) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, provide accurate wage statements, and reimburse necessary business expenses. The Plaintiff was employed by the Defendants as parking attendant. Douglas Parking LLC provides parking services. The Company offers parking management, valet parking, shuttles, and consulting on contract or fee basis. Douglas Parking serves customers in the United States. [BN] The Plaintiff is represented by: Matthew Righetti, Esq. Michael Righetti, Esq. RIGHETTI GLUGOSKI, P.C. 456 Montgomery Street, Suite 1400 San Francisco, CA 94104 Telephone: (415) 983-0900 Facsimile: (415) 397-9005 DUKE UNIVERSITY: Court OKs $10.65MM Settlement in ERISA Suits ------------------------------------------------------------- The United States District Court for the Middle District of North Carolina issued a Memorandum Opinion and Order granting Plaintiffs' Motion for Final Approval of a Settlement Agreement in the cases captioned DAVID CLARK, et al., Plaintiffs, v. DUKE UNIVERSITY, et al., Defendants. KATHI LUCAS, et al., Plaintiffs, v. DUKE UNIVERSITY, Defendant. Nos. 1:16-CV-1044, 1:18-CV-722 (M.D.N.C.). The plaintiffs seek final court approval of a settlement agreement with the defendants and dismissal with prejudice of two consolidated ERISA class actions. The Plaintiffs filed Clark v. Duke University in August 2016, alleging, inter alia, that defendants: (1) breached their fiduciary duties by causing the Duke University Faculty & Staff Retirement Plan to incur unreasonable recordkeeping expenses (2) committed prohibited transactions by allowing four vendors to provide Plan recordkeeping services and receive Plan assets from which they retained unreasonable compensation and (3) failed to prudently monitor Plan investment options resulting in the use of high-cost, low-performing funds compared to available alternatives. The Court granted class certification in Clark to a class of: All participants and beneficiaries of the Duke Faculty and Staff Retirement Plan from August 10, 2010 through the date of judgment, excluding Defendants. Proposed Settlement Agreement The proposed settlement agreement provides for a Gross Settlement Amount2 of $10,650,000. From this and subject to court approval, Class Counsel may receive up to $3,550,000, or one-third the common fund, in attorney's fees and $825,000 in attorney's expenses, and class representatives may receive case contribution awards of $25,000 for two named plaintiffs in Clark and $30,000 for three named plaintiffs in both Clark and Lucas, who were also appointed class representatives for their respective classes. Class Counsel has requested these awards in another motion, which the Court has granted in an Order issued concomitantly with this one. The remaining $6.1 million, less administrative expenses and a contingency award, will be distributed to class members in amounts proportional to their average quarterly balance during the Class Period. At the preliminary approval stage, Class Counsel estimated total administrative expenses would be $162,729, with a net settlement of approximately $5,972,2713 and an average recovery of about $103 per participant. At the settlement hearing, Class Counsel revised the estimated net settlement to just under $5.7 million but also updated the estimate for the average recovery to $118. The estimated maximum recovery by an individual class member is $10,309. Final Class Action Settlement Approval The Court should approve a class settlement if it is fair, reasonable, and adequate. A four-factor test is applied to determine the fairness of a proposed settlement: (1) the posture of the case at the time settlement was proposed (2) the extent of discovery that had been conducted (3) the circumstances surrounding the negotiations and (4) the experience of counsel in the area of law at issue. The Court assesses the adequacy of the settlement through the following factors: (1) the relative strength of the plaintiffs' case on the merits (2) the existence of any difficulties of proof or strong defenses the plaintiffs are likely to encounter if the case goes to trial (3) the anticipated duration and expense of additional litigation (4) the solvency of the defendants and the likelihood of recovery on a litigated judgment and (5) the degree of opposition to the settlement. All four fairness factors favor approval here. The settlement is also adequate in light of the relevant factors and the record. As noted above, Class Counsel estimates that approximately $5.7 million will remain after attorney's fees, expenses, and administrative costs are deducted, providing an average recovery of $118, with individual variation allowing some class members to recover as much as $10,000. Although the amount of recovery is relatively small in proportion to the claimed damages, this amount reflects a reasonable and significant recovery under the circumstances given the value of settlement terms benefitting the class beyond the direct monetary payments and the substantial challenges to obtaining full recovery. The monetary value of the settlement is greater when the injunctive relief and resulting reduced fees are taken into account. Class Counsel has presented evidence that reforms in the Plan's administration resulting from this litigation will also save approximately $24 million in present-day dollars from 2019 to 2023. The settlement has an additional advantage over recovery at trial as class members will accrue the tax-deferred monetary value now rather than in several years. Taken together, the total value of the monetary and non-monetary relief reflects over 12% of the damages sought. The Court has great familiarity with the plaintiffs' claims through the motions practice in Clark and litigation around adding the claims in Lucas. The Court concurs with the evaluations of Class Counsel and the plan's independent fiduciary that despite substantial evidence to support the plaintiffs' claims, there were potential but real legal and factual obstacles to ultimate recovery. The settlement amount reasonably takes into account the strengths and weaknesses of the plaintiffs' case, as well as the potential likelihoods that the defendants may either prevail in motions practice or at trial or appeal any recovery at trial, thus delaying or foreclosing any benefit to the class members. The settlement also includes non-monetary terms, such as reforms in the Plan, that are beneficial to the class and might not be included in any recovery at trial. Overall, the settlement terms are substantial in light of the tens of thousands of class members who will recover damages and benefit from the additional non-monetary changes to the Plan. The parties would almost certainly incur substantial additional litigation expense if Clark proceeds through summary judgment briefing to trial and if Lucas continues to discovery and trial. The parties expected trial in Clark to take approximately 20 days, which would likely require substantial expenses to present expert witnesses. Class Counsel have not expressed any concerns as to the solvency of the defendants or their ability to recover if they were to proceed to trial, nor is there a basis for any such concerns on the record. Overall, the record supports that, in light of the relevant factors, the settlement here is fair. Finally, the proposed settlement treats class members equitably relative to each other. All class members entitled to recovery will be paid proportionately to their average quarterly balances. The difference in payment methods direct deposit for current and check for former participants is justified given the different circumstances of current and former participants, and former participants can still receive tax benefits by opting for a roll-over payment. While no distributions will be made of $5.00 or less, this disparate treatment is also acceptable, as any awards of this size would cost more in processing than its value. Allowing such small recoveries would only increase administrative costs and diminish recovery to all class members in exchange for negligible benefits to some class members. In sum, the record and information provided by Class Counsel in filings and at the fairness hearing, and the absence of any objections by class members, support the conclusion that the proposed settlement is fair, reasonable, and adequate, and it should be approved. The Court so finds. The motion for final approval of the settlement agreement is granted and the settlement of the consolidated Class Action is approved as adequate and as fair and reasonable to the Plan and the Settlement Class. Judgment will be entered concomitantly. A full-text copy of the District Court's June 24, 2019 Memorandum Opinion and Order is available at https://tinyurl.com/yxn5stdn from Leagle.com. DAVID CLARK, INDIVIDUALLY AND AS A REPRESENTATIVE OF A CLASS OF PARTICIPANTS AND BENEFICIARIES ON BEHALF OF THE DUKE FACULTY AND STAFF RETIREMENT PLAN, KEITH A FEATHER, INDIVIDUALLY AND AS A REPRESENTATIVE OF A CLASS OF PARTICIPANTS AND BENEFICIARIES ON BEHALF OF THE DUKE FACULTY AND STAFF RETIREMENT PLAN, JORGE LOPEZ, INDIVIDUALLY AND AS A REPRESENTATIVE OF A CLASS OF PARTICIPANTS AND BENEFICIARIES ON BEHALF OF THE DUKE FACULTY AND STAFF RETIREMENT PLAN & THOMAS C MEHEN, INDIVIDUALLY AND AS A REPRESENTATIVE OF A CLASS OF PARTICIPANTS AND BENEFICIARIES ON BEHALF OF THE DUKE FACULTY AND STAFF RETIREMENT PLAN, Plaintiffs, represented by JEROME J. SCHLICHTER, SCHLICHTER BOGARD & DENTON, HEATHER LEA, SCHLICHTER BOGARD & DENTON, KURT C. STRUCKHOFF, SCHLICHTER BOGARD & DENTON, MICHAEL A. WOLFF, SCHLICHTER BOGARD & DENTON, SCOTT A. BUMB, SCHLICHTER BOGARD & DENTON, LLP, SEAN E. SOYARS, SCHLICHTER BOGARD & DENTON,TROY A. DOLES, SCHLICHTER BOGARD & DENTON 100 S 4th St Ste 1200, Saint Louis, MO 63102-1816 & DAVID B. PURYEAR, Jr., PURYEAR AND LINGLE, P.L.L.C., 5501-E Adams Farm LaneGreensboro, NC 27407- 6396. KATHI LUCAS, Plaintiff, represented by HEATHER LEA, SCHLICHTER BOGARD & DENTON,KURT C. STRUCKHOFF, SCHLICHTER BOGARD & DENTON, MICHAEL A. WOLFF, SCHLICHTER BOGARD & DENTON, SCOTT A. BUMB, SCHLICHTER BOGARD & DENTON, LLP, SEAN E. SOYARS, SCHLICHTER BOGARD & DENTON, TROY A. DOLES, SCHLICHTER BOGARD & DENTON &JEROME J. SCHLICHTER, SCHLICHTER BOGARD & DENTON. DUKE UNIVERSITY, DUKE INVESTMENT ADVISORY COMMITTEE, KYLE CAVANAUGH, TIM WALSH, JAMES S. ROBERTS, RHONDA BRANDON & Steve Smith, Defendants, represented byBRENT F. POWELL, WOMBLE BOND DICKINSON (US) LLP, JEREMY P. BLUMENFELD -jeremy.blumenfeld@morganlewis.com -- MORGAN, LEWIS & BOCKIUS, LLP, ABBEY M. GLENN -abbey.glenn@morganlewis.com -- MORGAN LEWIS & BOCKIUS, LLP, CHRISTOPHER A. WEALS -- christopher.weals@morganlewis.com -- MORGAN LEWIS & BOCKIUS, LLP, DONALD L. HAVERMANN -- donald.havermann@morganlewis.com -- MORGAN LEWIS & BOCKIUS, LLP & JAMES P. COONEY, III -- jim.cooney@wbd-us.com -- WOMBLE BOND DICKINSON (US), LLP. ANDERS HALL, RICHARD SCHMALBECK, MICHAEL LAZAR, DR. NAN JOKERST, ERIC KOEHRSEN & JEAN SHIELDS, Defendants, represented by BRENT F. POWELL -- brent.powell@wbd-us.com -- WOMBLE BOND DICKINSON (US) LLP, JEREMY P. BLUMENFELD, MORGAN, LEWIS & BOCKIUS, LLP & JAMES P. COONEY, III, WOMBLE BOND DICKINSON (US), LLP. ELASTOS FOUNDATION: Removes Owen et al. Suit to S.D. New York ------------------------------------------------------------- The Defendant in the case of MARK OWEN, and JAMES WANDLING, individually and on behalf of all others similarly situated, Plaintiff v. ELASTOS FOUNDATION; FENG HAN; RONG CHEN; FAY LI; and BEN LEE, Defendants, filed a notice to remove the lawsuit from the Supreme Court of the State of New York, County of New York (Case No. 650628/2019) to the U.S. District Court for the Southern District of New York on June 11, 2019. The clerk of court for the Southern District of New York assigned Case No. 1:19-cv-05462-GHW. The case is assigned to Judge Gregory H. Woods. Elastos Foundation develops an Internet operating system that focuses on re-decentralizing the Internet with block-chain to secure identity. The company is based in Beijing, China. [BN] The Plaintiffs are represented by: Warren Angelo Raiti, Esq. 99 Hudson Street, 5th Floor New York, NY 10013 Telephone: (215) 237-3917 E-mail: law@warrenraiti.com - and - Javier Bleichmar, Esq. BLEICHMAR FONTI & AULD LLP 7 Times Square, 27th Fl New York, NY 10036 Telephone: (212) 789-1340 Facsimile: (212) 205-3961 E-mail: jbleichmar@bfalaw.com - and - Ross Mitchell Shikowitz, Esq. BLEICHMAR FONTI & AULD LLP 7 Times Square, Ste 27th Floor New York, NY 10036 Telephone: (212) 789-1349 E-mail: rshikowitz@bfalaw.com The Defendants are represented by: William Jospeh Foley , Jr., Esq. ORRICK HERRINGTON & SUTCLIFFE LLP (NYC) 51 West 52nd Street New York, NY 10019 Telephone: (212) 506-5000 Facsimile: (212) 506-5151 E-mail: wfoley@orrick.com - and - Kenneth Patrick Herzinger, Esq. ORRICK HERRINGTON & SUTCLIFFE LLP (NYC) 405 Howard Street San Francisco, CA 94105 Telephone: (415) 773-5409 Facsimile: (415) 773-5759 E-mail: kherzinger@orrick.com EVENTBRITE: Judge Tosses Ticketfly Hack Class Action ---------------------------------------------------- Ashley King, writing for Digital Music News, reports that an Illinois judge has dismissed the class action lawsuit filed against Eventbrite over the Ticketfly hack. Claimants have until July 9th to file an amended complaint. Last May, a hacker sent emails to Ticketfly about security flaws that existed in its WordPress blog. When Ticketfly did not address the issue, the hacker, calling himself 'Ishakdz,' breached the site and gained access to 26 million user's information. Ishakdz asked Ticketfly to supply one bitcoin (worth about $7,500 at the time) in exchange for the data. When Ticketfly didn't pay the hacker's ransom, he posted all 26 million customer's information online. That information included names, addresses, emails, passwords, phone numbers, and credit card details. The event prompted Ticketfly's parent company Eventbrite to be named in a class action lawsuit over the breach. Eventbrite formally responded to the lawsuit in March by asking the judge to dismiss the case. Eventbrite said the claimants had failed to prove that they bought their tickets from Ticketfly. Lawyers also argued that even if the data grab had impacted the claimants, they could not prove that direct harm resulted. Judge Michael T. Mullen agreed with Eventbrite's assessment of the situation. He dismissed the lawsuit as it currently stands and said plaintiffs would need to explain how their contract with Eventbrite had been breached. In addition, plaintiffs must provide evidence that the data hack caused concrete injury. Plaintiffs in the case argued that having to pay to monitor their credit was tangible harm, but the judge disagreed. He told plaintiffs that "potential harm" is not a viable reason to proceed with the suit. If the two plaintiffs amend the lawsuit with new evidence by July 9th, it can continue, however. If the plaintiffs do provide sufficient evidence, Eventbrite plans to claim that the lawsuit should be judged in California rather than Illinois. Judge Mullen said he would consider that argument if the plaintiffs file an amended lawsuit by the deadline. [GN] FIRST AMERICAN: Faces Forney et al. Suit over Data Breach --------------------------------------------------------- LASHEEDA FORNEY; RYAN GOODYEAR; and BROOKE WRAY HAGER, individually and on behalf of all others similarly situated, Plaintiffs v. FIRST AMERICAN FINANCIAL CORPORATION; and FIRST AMERICAN TITLE COMPANY, Defendants, Case No. 8:19-cv-01180-DSF-E (C.D. Cal., June 12, 2019) is a class action against the Defendants for failure to adequately safeguard the Plaintiffs' and the other Class members' valuable and sensitive personally identifiable information, including, but not limited to, their names, email addresses, mailing addresses, dates of birth, social security numbers, bank account numbers, lender details, mortgage and tax records, driver's license images, and other personal information (collectively, "PII") such that their PII was exposed to unauthorized users (the "Data Breach"). The Plaintiffs allege in the complaint that as a result of the Defendants' failure to maintain adequate security measures, the Plaintiffs and the other Class members' PII was compromised. They have suffered an ascertainable loss in that the PII contained in documents on the Defendants' website, including social security numbers, addresses, dates of birth, banking information, and more, was exposed as a result of the Defendants' failures. Furthermore, the Plaintiffs and the other Class members must undertake additional security measures, some at their own expense, to minimize the risk of future data breaches including, without limitation, closing credit card accounts, bank accounts, debit card accounts, etc. But there is no guarantee that such security measures will in fact adequately protect their PII. As such, the Plaintiffs and the other Class members have an ongoing interest in ensuring that their PII is protected from past and future cybersecurity threats. First American Financial Corporation provides insurance services. The Company offers title, lenders, and property and casualty insurance, as well as foreclosure, asset disposition, commercial due diligence, and trustee services. First American Financial serves individuals and businesses throughout the United States. [BN] The Plaintiffs are represented by: Mark A. Ozzello, Esq. Tarek H Zohdy, Esq. Cody R Padgett, Esq. Trisha Kathlee Monesi, Esq. CAPSTONE LAW APC 1875 Century Park East Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 E-mail: Mark.ozzello@capstonelawyers.com Tarek.zohdy@capstonelawyers.com Cody.Padgett@capstonelawyers.com Trisha.monesi@capstonelawyers.com - and – Ivy Ngo, Esq. FRANKLIN D. AZAR & ASSOCIATES, P.C. 14426 East Evans Avenue Aurora, CO 80014 Telephone: (303) 757-3300 Facsimile: (720) 213-5131 E-mail: ngoi@fdazar.com FOUR SEASONS: Court Narrows Claims in C. Zyda's UMOC Suit --------------------------------------------------------- The United States District Court for the District of Hawaii issued an Order granting in part and denying in part Defendants' Motion for Partial Summary Judgment in the case captioned CHRISTOPHER ZYDA, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs, v. FOUR SEASONS HOTELS AND RESORTS, FOUR SEASONS HOLDINGS, INC., FOUR SEASONS HUALALAI RESORT, HUALALAI RESIDENTIAL, LLC, (DBA HUALALAI REALTY); HUALALAI INVESTORS, LLC, KAUPULEHU MAKAI VENTURE, HUALALAI DEVELOPMENT COMPANY, HUALALAI VILLAS & HOMES, HUALALAI INVESTORS, LLC, HUALALAI RENTAL MANAGEMENT, LLC, DOES 1-100, Defendants. CIV. No. 16-00591 LEK-RT. (D. Haw.). The instant case arises from the policy change regarding the daily fees for renters and unaccompanied guests at the Hualalai Resort (Resort) that was announced in 2015 (DRGF). The Third Amended Complaint alleges the following claims: unfair methods of competition (UMOC) and unfair or deceptive acts or practices (UDAP), in violation of Haw. Rev. Stat. Section 480-2 (Count III), promissory estoppel/detrimental reliance (Count IV); violation of the duty of good faith and fair dealing (Count V); negligent misrepresentation (Count VI); estoppel (Count VII) and unjust enrichment (Count VIII). The Defendants seek summary judgment as to all claims, except for the UMOC claim. UDAP Claim The Hawai'i Supreme Court has stated: a deceptive act or practice is (1) a representation, omission, or practice that (2) is likely to mislead consumers acting reasonably under the circumstances where (3) the representation, omission or practice is material. This test is an objective one, turning on whether the act or omission is likely to mislead consumers, as to information important to consumers, in making a decision regarding the product or service. Count III is silent as to what specific acts or omissions the UDAP claim is based upon. The basis of Zyda's UDAP claim, and his case as a whole, must be gleaned from the evidence that he has presented: Zyda testified that, before he purchased his lot in the Resort, he was told his future renters and guests would be able to use all of the Resort's amenities without paying any fees. Zyda has presented evidence that other Class members were given the same, or similar, information. Initially, the periodic increases in the DRGF were in the range of five to ten dollars In 2015, a policy change was announced under which the DRGF were as high as $250 during certain times of the year (2015 DRGF Policy). However, there has also been testimony that, at other times of the year, the DRGF increased to only $65 when the 2015 DRGF Policy took effect. Mr. Schoon acknowledged that, for the times when the DRGF became $250, the rate did increase dramatically. Mr. Schoon also acknowledged that he is not aware of another Resort that charges its guests a $250 per day fee. Zyda contends Defendants' hidden purpose behind this dramatic increase is to limit the number of the Resort owners' renters and guests, which allows the Hotel guests greater access to the Resort amenities. Since the imposition of the 2015 DRGF Policy, Resort owners still rent their homes. However, unless the DRGF is paid, their renters cannot access the Resort amenities and are treated the same renters of Resort owners who are not Club members. In considering Defendants' Motion, this Court must view the evidence in the light most favorable to Zyda, as the nonmoving party. While the evidence of Defendants' alleged scheme to increase the Hotel guests' access to the amenities appears infirm, it does minimally manage to establish a material representation, omission, or practice for purposes of a summary judgment motion. Even so, summary judgment must be denied largely because the remaining element of a UDAP claim that the representation, omission, or practice was likely to mislead consumers acting reasonably under the circumstances requires the application of an objective standard that is ordinarily for the trier of fact. While Zyda received documents expressly stating the Resort management's right to impose guest fees for the use of the Resort amenities, when the record is viewed as a whole, genuine issues of material fact exist which preclude summary judgment as to whether Defendants' representation, omission, or practice was likely to mislead consumers acting reasonably under the circumstances. Genuine issues of material fact also exist as to whether the UDAP claim was brought within the statute of limitations. Chapter 480 claims, including UDAP claims and UMOC claims, are subject to a four-year statute of limitations. These issues are: 1) when the statute of limitations on Zyda's UDAP claim began to run and 2) if Zyda's UDAP claim is untimely, whether any other Class member has a timely UDAP claim. For instance, did the statute of limitations start to run when any fees were first imposed? If so, then it would appear that the UDAP and UMOC claims were untimely brought for those Class members who had purchased before the fees were first imposed. The Defendants' request for summary judgment as to Zyda's UDAP claim in Count III is denied. Further, because the analysis of the Class members' UDAP claims are the same, Defendants' Motion is also denied as those claims. Equitable Claims Counts IV, VII, and VIII are equitable claims. In Porter, the Hawai'i Intermediate Court of Appeals (ICA) held that: the trial court did not abuse its discretion when it ruled that an unjust enrichment remedy was appropriate because the plaintiffs had no adequate legal remedy; and the trial court did not err when it allowed the plaintiffs to make a post-verdict election between the contract remedy, the tortious interference remedy, and the unjust enrichment remedy. Porter, 116 Hawai'i at 56, 169 P.3d at 1008. The ICA endorsed the application of the principle that no adequate legal remedy exists where the contract did not provide for the redress of the specific harm done. Zyda argues that he does not have an adequate legal remedy because the remedies for his other claims do not include the disgorgement of Defendants' earnings resulting from Defendants' improper actions. Zyda's reliance on Porter is misplaced. Porter is inapplicable because the ICA's analysis was solely as to whether the plaintiffs had an adequate tort remedy. Unlike the case at hand, the factual basis of the plaintiffs' tortious interference claim was the same as that of their unjust enrichment claim, i.e., the defendants deprived the plaintiffs of plaintiffs' books of business after the terminating plaintiffs' employment by diverting their clients from them through intentional misrepresentations. The trial court in Porter recognized that the contract did not expressly address the compensation of an agent who wrongfully lost his book of business as a result of the parent insurer's misconduct and the ICA noted that this conclusion of law was not contested on appeal. Further, the ICA held that the defendants failed to show the employment contracts addressed the conduct which was the basis of the unjust enrichment claim. Here, Zyda's equitable claims are based upon his position that, through the 2015 DRGF Policy, Defendants have effectively deprived him of a right provided in the Hualalai CCRs his right to rent his Resort home. Zyda could have brought a breach of contract claim based on these same facts. Because Zyda's equitable claims are based on the same facts as his breach of contract claim, he has an adequate legal remedy and thus his equitable claims cannot stand. That the remedies Zyda could have obtained in a breach of contract claim would be different from those remedies which could be obtained in equitable claims is of no relevance. Zyda cannot bring equitable claims to distort a negotiated arrangement by broadening the scope of the contract. Because the breach of contract claim which could have been brought is an adequate remedy at law, it is not necessary to address whether any tort claim or statutory claim is also an adequate remedy at law. There are no genuine issues of material fact, and Defendants are entitled to judgment as a matter of law as to Zyda's claims in Counts IV, VII, and VIII. Further, the analysis of the Class members' claims is the same, and Defendants are entitled to summary judgment as to those claims as well. In light of these rulings, it is not necessary to address the statute of limitations issue. Claim for Violation of the Duty of Good Faith and Fair Dealing Count V alleges that, due to the nature of Defendants' control of the Resort and the relationship of the parties, Defendants owed the Class a duty of good faith and fair dealing and have breached that duty, Under Hawai'i law, every contract contains an implied covenant of good faith and fair dealing that neither party will do anything that will deprive the other of the benefits of the agreement. A bad faith tort claim is not cognizable because Hawai'i law does not recognize such a claim outside of the insurance context or, perhaps a situation involving a special relationship. Zyda has affirmatively represented that Count V asserts a tort claim. It is not a bad faith claim in the insurance context. Thus, Zyda's bad faith tort claim fails as a matter of law unless there is a special relationship between him and Defendants. Hawaii courts have noted that other jurisdictions recognizing the tort of bad faith limit such claims to the insurance context or situations involving special relationships characterized by elements of fiduciary responsibility, public interest, and adhesion. While Mr. Schoon acknowledges that, in his capacity as HVH's principal broker, he owes certain duties to his HVH clients, he also states Zyda is not now, nor has he ever been, a client of HVH. Zyda has not presented any admissible evidence suggesting a special relationship exists between him and Defendants. There are no genuine issues of material fact, and this Court concludes that, as a matter of law, no special relationship between Zyda and Defendants exists to permit Zyda to maintain a bad faith tort claim. Defendants are entitled to judgment as a matter of law as to Zyda's claim in Count V. of limitations issue. Negligent Misrepresentation Claim The negligent misrepresentation claim in Count VI is based upon allegedly false information provided to Zyda and the Class when considering making their property purchases in the Resort. Specifically, that they were told their renters and guests would be able to use the Resort amenities without paying additional fees. However, the LPSA refers to the Amenity Rules, which were given at the time of purchase his membership in the Club and his use of the Resort amenities. Even viewing the record in the light most favorable to Zyda, the statements made at the time of his lot purchase that guest fees would not be charged for the use of the Resort amenities were, at most, merely a prediction that the Resort management would not exercise its discretion to impose guest fees in the future. While there is an exception to this rule a promise relating to future action or conduct will be actionable if the promise was made without the present intent to fulfill the promise, Zyda fails to present any evidence of a genuine issue of material fact as to whether the representations allegedly made about never imposing guest fees constituted a promise that was made without the present intent to fulfill it. Defendants are therefore entitled to summary judgment as to Count VI. There are no genuine issues of material fact, and Defendants are entitled to judgment as a matter of law as to Zyda's claim in Count VI. Further, the analysis of the Class members' claims is the same, and Defendants are entitled to summary judgment as to those claims as well. In light of these rulings, it is not necessary to address the statute of limitations issue. Based on this, the Defendants' Motion for Partial Summary Judgment, is granted in part and denied in part. The Motion is granted insofar as summary judgment is granted in the Defendants' favor as to Counts IV, V, VI, VII, and VIII. The Motion is denied as to the UDAP claim in Count III. Thus, this case will proceed to trial on the UDAP claim and the UMOC claim in Count III. A full-text copy of the District Court's June 24, 2019 Order is available at https://tinyurl.com/y2c47maw from Leagle.com. Christopher Zyda, on behalf of himself and all other similarly situated & Carol Meyer, (Class Plaintiffs) On Behalf of Themselves and All Others Similarly Situated, Plaintiffs, represented by Patrick Kyle Smith, Law Offices of Ian Mattoch, 737 Bishop St., Pacific Guardian Ctr., Mauka Twr., Honolulu, HI, 96813-3201 & Terrance M. Revere -- terry@revereandassociates.com -- Revere & Associates, LLLC. Four Seasons Hotels and Resorts, Four Seasons Hualalai Resort & Hualalai Development Company, Defendants, represented by William Meheula, Sullivan Meheula Lee LLLP, Topa Finacial Center Fort St. Tower745 Fort StSuite 800Honolulu, HI 96813 Four Seasons Holdings, Inc., Hualalai Residential, LLC, doing business as Hualalai Realty, Hualalai Investors, LLC, Hualalai Rental Management, LLC & Four Seasons Hotels Limited, Defendants, represented by Barry A. Sullivan, Sullivan Meheula Lee LLLP, Pacific Guardian Center, Makai Tower, Suite 2900, 733 Bishop Street, Honolulu, HI 96813, Brett R. Tobin -- btobin@goodsill.com -- Goodsill Anderson Quinn & Stifel LLLP, Donald M. Falk -- dfalk@mayerbrown.com -- Mayer Brown LLP, pro hac vice, Natasha L.N. Baldauf, Sullivan Meheula Lee LLLP & William Meheula, Sullivan Meheula Lee LLLP, Pacific Guardian Center, Makai Tower, Suite 2900, 733 Bishop Street, Honolulu, HI 96813 James R. Mahoney, Ann Marie Mahoney, Judith Runstad, H. Jon Runstad, Jonathan Seybold, Patricia Seybold, David Keyes, Doreen Keyes, Julie Wrigley, Kevin Reedy, Bradley Chipps, J. Orin Edson & Lynn Reedy, Intervenors, represented by Nickolas A. Kacprowski -- nickolas.kacprowski@dentons.com -- Dentons US LLP. FOX RUN: Faces Class Action in New York Over ADA Violation ---------------------------------------------------------- Wine Industry Advisor reports that when Scott Osborn, owner of Fox Run Vineyards near Seneca Lake in upstate New York, first heard that winery websites should be addressing the needs of visually impaired people last October, he said he and his team immediately began to work on "getting our site up to standard." In January he got sued. And his business wasn't the only one. According to the New York Wine and Grape Foundation, last fall, 26 wineries from Long Island and the Hudson Valley were named in a class action lawsuit and another 12, including Fox Run Vineyards, in January for " . . . failure to design, construct, maintain and operate its website to be fully accessible and independently usable by (Plaintiff) and other visually impaired people." At issue is Title III of the Americans with Disability Act (ADA), which applies to private businesses. The intent of the Act, signed into law by George Bush in 1990, is to ensure that individuals with disabilities have equal access, opportunity, participation, independence and economic self-sufficiency as individuals without disabilities. (https://ag.ny.gov/civil-rights/disability-rights). When first enacted, the law was primarily directed at businesses in buildings that lacked adequate provisions for people with physical handicaps who might be unable to access steps or navigate narrow corridors and doorways. But with the rise of the Internet in the 21st century and society's reliance on it to conduct nearly all aspects of contemporary commerce, Title III of the ADA has been extended to website development as well. There's little controversy about the intent of the law and its basic premise. As Osborn puts it, "I want everyone to come to my winery and access my website. I want to achieve as much as I can. The problem is, there's not much information available as to how to go about it. " The sticking point appears to be a lack of clarity from the federal government as to what exactly defines website accessibility for the visually impaired and what those businesses that have been found to be out of compliance need to do to fix it. James Marshall Berry is Chief Strategy Officer with JMB Web Consulting, LLC based out of Sonoma County. He works with a number of winery clients who have serious concerns about the compliance issue and how address it. Berry contends that since the Department of Justice (DOJ) has declined to be specific about issuing any official website compliance guidelines, small businesses are scrambling to define their own best practices and the actual decisions about compliance are coming down from individual courtrooms where the cases are being litigated. "We all would like a standard of measure that tells us is it or isn't it compliant," Berry asserts. "But if it's up to a judge and jury to decide what's good enough -- that has sweeping ramifications." Berry says that many wineries and small businesses are turning to website accessibility practices that were developed in 1999 by the World Wide Web Consortium (W3C), an international community where "member organizations, a full time staff and the public work together to develop web standards." (https://www.w3.org/Consortium/). Under the W3C, a workgroup came up with an initial list of 14 standards and checkpoints, known as the Web Content Accessibility Guidelines (WCAG 1.0) that could be followed in order to make the Internet more accessible to people with disabilities. In 2008, those guidelines were updated (WCAG 2.0) to reflect the ever-evolving nature of technology, and focused more on "principle-centered guidelines," rather than the "technique-centered guidelines," which made up the bulk of the earlier work. (https://webaim.org/standards/wcag/). However, as Berry points out, "It can be as arbitrary as contrasting colors on a logo, or one color of orange being brighter than another . . . at the end of the day, it's going to fall to CMS (Content Management System) to become compliant. And, were winery websites originally built that way? Not really. Do they have the money to fashion their websites to facilitate compliance? Probably not, but it will likely be cheaper than a lawsuit." Richard J. Idell is an attorney with Dickenson, Peatman and Fogarty, a law firm in Napa CA, with extensive experience representing wine industry concerns. He is also an entertainment lawyer, specializing in live performances and has significant experience with ADA issues. Idell agrees that it can be frustrating for wineries and other small businesses to be subject to lawsuits without clear Justice Department guidelines. But, as he points out, "the fact that there are not clear guidelines on the issue doesn't mean you shouldn't fix it." Idell references the WCAG 2.1 standards for website development guidance that suggest, among other things, installing software with alternative text that contains a code that describes images on a page, or screen reading software that does allow the visually impaired to read online content. He notes that the risk of damage awards and attorney's fees is significant and a good reason to address the problem, even without clarity from the Justice Department. "This will all get sorted out eventually," Idell predicts, because, as he says, the litigation will result in decisions where the courts say what is covered in the law and not. "When the law was passed, Congress saw the best way to get a law implemented is have attorneys bring cases for private litigants. That is why you have private individuals filing suit." For their part, winery owners like Scott Osborn are doing their best to cope with an ever-shifting legal and technical landscape. Under his direction, Fox Run Vineyards has completely rebuilt its website, with assistance from the Center for Disability Rights in Rochester New York. Osborn hired User 1st, a company specializing in website accessibility. At the top left on the Fox Run Vineyards homepage, there is now an Accessibility tab. When activated, users may choose among several options to address accessibility needs, including activating a screen reader, navigating by keyboard, changing color contrast, making a grayscale and stop moving elements. "It took us three to four months to get this thing done and done correctly," Osborn reports. "People who don't have (disability) issues -- we don't think about it. And we should. We just need a way to think about it without having a lawsuit." Sam Filler, the Executive Director of the New York Wine and Grape Foundation, could not agree more. "No one is intentionally trying to limit access," Filler states. "The problem is with the rules not being clear. Even if you've followed best practices and WCAG 2.0, it doesn't absolve you from a lawsuit. You could be 98 percent there, but one photo that wasn't accessible can bring up a complaint." "Bigger companies have the resources to settle (lawsuits)," Filler continues. "For smaller wineries a settlement and the money to fix a website can mean their yearly marketing budget. "There needs to be breathing room so wineries can become compliant. Our industry is totally committed to providing appropriate disability access. If it's not there, our winery owners are committed to making the appropriate improvement." [GN] GALVIS & MUSA CORP: Franco Seeks Minimum & Overtime Pay ------------------------------------------------------- A class action complaint has been filed against Galvis & Musa, Corp. d/b/a Delicias Tropical Restaurant, Zulma Musa and Maria Galvis for alleged violations of the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL). The case is captioned MONICA FRANCO, On Behalf of Herself and All Others Similarly Situated, Plaintiffs, vs. GALVIS & MUSA, CORP. d/b/a DELICIAS TROPICAL RESTAURANT, ZULMA MUSA and MARIA GALVIS, Defendants, Case No. 1:19-cv-03828 (E.D.N.Y., July 1, 2019). Plaintiff Monica Franco further alleges that the Defendants have violated the NYLL by failing to pay the spread of hours, failing to provide their employees with wage statements on each payday containing specific categories of information and failing to furnish their employees with a wage notice at the time of hiring containing specific categories of accurate information. Throughout her employment, Defendants required Plaintiff to work, and Plaintiff did work, more than forty hours per week. However, Defendants failed to pay Plaintiff at the minimum wage or overtime rate of pay of one and one-half times her regular rate of pay for each hour that Plaintiff worked per week in excess of forty, as the FLSA and the NYLL require. Delicias Tropical Restaurant was and is a domestic business corporation with its principal place of business located at 93-16B 37th Avenue, Jackson Heights, NY 11372. This restaurant offers Colombian cuisine. Galvis and Musa own, manage and oversee the day-to-day operations of this restaurant. [BN] The Plaintiff is represented by: Amit Kumar, Esq. LAW OFFICES OF WILLIAM CAFARO 108 West 39th Street, Suite 602 New York, NY 10018 Telephone: (212) 583-7400 E-mail: AKumar@Cafaroesq.com GENERAL MOTORS: Campos et al. Sue over Defective Motor Vehicle -------------------------------------------------------------- CELINA S. CAMPOS; and RICARDO CAMPOS, individually and on behalf of all others similarly situated, Plaintiffs v. GENERAL MOTORS LLC; and DOES 1 through 10, inclusive, Defendants, Case No. 19STCV20776 (Cal. Super., June 12, 2019) is an action against the Defendants for manufacturing and selling a defective motor vehicle. The Plaintiffs allege that the Defendants' 2011 Chevrolet Cruze contained or developed defects, including but not limited to, cooling system defects; transmission defects; defects requiring adjustment to the transmission range selector lever; defects requiring modification to the engine shield; defects related to the shift lever; defects requiring battery cable replacement; defects causing loss of coolant; defects causing cooling system leaks; defects causing overheating; defects causing the Vehicle to not turn over, crank, and/or start; defects causing replacement of brake vacuum micro switch; defects causing the heater bypass valve to leak; defects requiring replacement of heater bypass valve and/or hose; defects causing low engine coolant without an external leak; defects causing storage of diagnostic trouble code (DTC) P0101; defects requiring reprogramming of the engine control module; defects causing the illumination of the check engine light ("CEL"); defects causing illumination of the "service power steering" message; defects causing the water pump to leak; defects requiring replacement of the water pump; defects causing the illumination of the service engine soon ("SES") light; defects causing storage of diagnostic trouble code (DTC) P0171, P0299, P0496,P00B7, and/or P2270; defects requiring replacement of the EVAP Purge Solenoid; defects causing Vehicle's hesitation on start up; defects causing engine shut down when coming to a stop; defects causing replacement of PCV hose; defects causing engine fluid leaks; defects requiring replacement of torque converter housing gasket; defects causing a faulty turbocharger; defects causing replacement of the starter motor; defects causing replacement of valve cover gasket; defects requiring replacement of tire pressure monitor sensors; defects causing replacement of cooling system hoses; defects causing failure to start; and/or any other defects enumerated in the Vehicle's repair history. Said defects substantially impair the use, value, or safety of the Vehicle. General Motors LLC was incorporated in 2009 and is based in Wilmington, Delaware. General Motors LLC operates as a subsidiary of General Motors Company. [BN] The Plaintiffs are represented by: Tionna Dolin, Esq. STRATEGIC LEGAL PRACTICES A PROFESSIONAL CORPORATION 1840 Century Park East, Suite 430 Los Angeles, CA 90067 Telephone: (310) 929-4900 Facsimile: (310) 943-3838 E-mail: tdolin@slpattomey.com GREATCALL: Recalls MobilePlus Devices Amid Class Action ------------------------------------------------------- Jonah Comstock, writing for MobiHealthNews, reports that Best Buy subsidiary GreatCall has quietly and voluntarily recalled some portion of its recently-launched Lively MobilePlus devices, and has halted the sale of new units. The exact nature of the defect is not clear, but GreatCall referred to the recall in letters to purchasers as an "important safety recall." The device is currently listed as "Coming Soon" on GreatCall's website with no option to purchase, despite being previously available for purchase. GreatCall did not issue a public recall, nor has a recall notice been issued by the FDA. A GreatCall spokesperson told MobiHealthNews that the device is outside the agency's jurisdiction. "Thank you for your recent purchase of Lively Mobile Plus," CEO David Inns wrote in a letter to customers dated May 15th. "Unfortunately, we have identified a quality issue in a limited number of Lively Mobile Plus devices manufactured earlier this year. Out of an abundance of caution -- and because your safety is our top priority -- we need you to stop using the device immediately and return it to us. We want to help ensure your device is working when you need it the most." The letter, obtained by MobiHealthNews as part of the documentation in a class action suit against the company filed May 22nd, goes on to offer affected users a full refund, a free Jitterbug flip phone, and a $50 Best Buy gift card. A GreatCall spokesperson confirmed the news. "We identified a quality issue in a small number of Lively MobilePlus devices," the spokesperson told MobiHealthNews. "We decided to stop selling these devices. Every customer who had purchased one was contacted within 72 hours and has either gotten a full refund or a Jitterbug flip phone." The company declined to disclose the number of devices that had been sold or were affected. The spokesperson told MobiHealthNews that the decision to contact customers individually rather than through a public recall was based on the fact that they had contact information for every customer and felt they could reach them more quickly and reliably in that way. The class action suit was filed on behalf of Scott Barnes, who told MobiHealthNews via email that the device failed to detect his falls on two occasions. Barnes said he was not told about the recall until after he called and complained, a sentiment echoed by a number of similar reports on the consumer product review site BestCompany. The class action suit charges that GreatCall was aware of the issue for some time before contacting customers. "Even though Defendants have been aware of the Defect, and that there has been a drastic increase in failed emergency services calls, Defendants continued to sell the Defective Medical Alert Device and knowingly hid the Defect from consumers," Barnes's lawyers allege in the suit. "Defendants made a business decision that publicly notifying all potential consumers about the Defect would negatively affect sales and profits and therefore chose to conceal the serious consequences of the Defect. Faced with this no-win situation, Defendants put profits over quality and safety." GreatCall provided MobiHealthNews with a statement about the class action suit. "The claims in the lawsuit do not appear to be related to the quality issues we identified with Lively Mobile Plus," the company said. "However, we are continuing to investigate the situation." The spokesperson said GreatCall is investigating the issue with the devices and plans to resume sales of the device once they're sure it has been corrected. [GN] GRUBHUB: Faces Class Action in Philadelphia Over Hidden Fees ------------------------------------------------------------ Michael Tanenbaum, writing for PhillyVoice, report that takeout delivery service Grubhub is facing a potential class-action lawsuit led by a Philadelphia restaurant that claims the Chicago-based company charged hidden fees. The lawsuit was filed in January by Indian restaurant chain Tiffin, which has 12 locations across the Philadelphia region. Restaurateur Munish Narula claims Grubhub has been charging thousands of restaurants for customer calls that didn't actually result in food orders. The lawsuit filed in federal court in Philadelphia claims Grubhub collected fees even when customers simply placed calls to get information about restaurant menus and hours. Tiffin is seeking class-action status to cover many of Grubhub's 115,000 restaurant partners. In court, Grubhub's attorneys argued the lawsuit belongs in arbitration, New York Post reported. The company claims its partners knowingly agreed to terms of use that have included arbitration and class action waiver provisions since 2016. Tiffin says Grubhub's non-order charges have amounted to thousands of dollars annually for at least seven years for some businesses. Attorneys representing Tiffin told the Post Grubhub is "Monday morning quarterbacking" and "grasping at straws" in order to dodge liability. Restaurateurs affected by the alleged phantom charges say Grubhub has been attempting to broker deals that cover only a fraction of the accumulated fees -- about 60-90 days worth of refunds. Grubhub, which owns Menupages and Seamless, frequently receives informational calls. In one instance, a woman called the Italian restaurant Enoteca, in Brooklyn, to see whether she could order gluten-free pasta. The restaurant was charged a $9.07 fee for the call, plus the additional 15-20 percent Grubhub commission when she placed an order on the app minutes later. Tiffin seeks $5 million in damages with the possibility of an increase if more restaurants join the lawsuit. [GN] GRUBHUB: Seeks Dismissal of Philadelphia Class Action ----------------------------------------------------- Kevin Dugan and Lisa Fickenscher, writing for New York Post, report that Grubhub wants to keep an explosive lawsuit claiming it's ripped off restaurants out of the public eye -- even as it scrambles to quietly contain the fallout from irate restaurant owners. The giant food delivery company is asking a Philadelphia federal judge to toss a lawsuit claiming that Grubhub has been charging restaurants each time diners pick up the phone -- regardless of whether the calls result in a food order generated by Grubhub. The lawsuit, filed by the owner of an Indian restaurant in Philadelphia called Tiffin, is seeking class-action status. But the Chicago company tossed water on that prospect when it told the judge that the lawsuit belongs in arbitration, where it would be handled behind closed doors. "Plaintiffs signed written contracts in 2011 with Grubhub that incorporate online terms of use, which since 2016 have included arbitration and class waiver provisions," Grubhub said in a court filing. Grubhub, founded by Matt Maloney, has been under siege after thousands of restaurants learned in May -- thanks to an exclusive report in The Post -- that the company has been charging them up to thousands of dollars a month to answer the phone, even if it's just for a customer asking when they're open. Grubhub, which also owns Seamless and Menupages.com, is supposed to only charge restaurants a percentage of orders it helps generate. Lawyers for Tiffin shot back on June 3, accusing the company of "Monday-morning quarterbacking, grasping at straws, scorching the earth, using every available resource, dozens of employees and lawyers . . . in a mad scramble to avoid liability for its misconduct." Indeed, Grubhub has gone so far as to threaten another angry restaurateur that his eateries will disappear from the company's apps if he files suit to get back bogus charges, The Post has learned. "If you would like to pursue legal action, you can send us a letter accordingly. Both accounts would have to be paused until the legal matter is resolved," a Grubhub account adviser wrote to the owner, according to December emails obtained by The Post. Angry restaurateurs say Grubhub is taking an à la carte approach to paying them back -- offering them 60 to 90 days' worth of refunds despite years of potential overcharges. Owners who balk at these meager refunds have been offered as much as a year's worth of returns, sources said. Gente Ristorante Italiano owner Jay Mitchell said Grubhub pre-emptively refunded his restaurant for erroneous fees going back as far as December 2018, including one $9 fee for a missed call. "Our statements going back to December listed 'credit' next to these phone orders even though we didn't ask for that," Mitchell said. A Grubhub spokeswoman declined to comment. Grubhub's argument for sending Tiffin's lawsuit to arbitration rests in part on the online records showing the owner clicked on and viewed the company's terms of use before suing. "Even if plaintiffs had not explicitly accepted the terms when first signing up, they would still be bound," according to Grubhub. [GN] HASBRO INC: Removes Erler et al. Suit to N.D. Georgia ----------------------------------------------------- The Defendants in the case of JOHNATHAN ERLER; THOMAS COX; IAN NYTES; THOMAS RODRIGUEZ; MICHAEL LEE; CHARLES DECELLES; CYNTHIA MOREN; BILAL AWADALLAH; AARON PINKHAM; TRAVIS HENLEY; NATHAN KUJACZNSKI; MARK LAROCHE; RYAN JAQUES; MICHAEL RANTON; CAMERON BURGER; GRANT SHINDO; THOMAS BELLO; ALDEN RANDALL; JARED LIEBOWITZ; ANDREW SCHWEIG; JAMES LEA; MITCHELL LEVY; BRANDON PETTIT; MICHAEL APPERSON; ULISES MORENO-ORTEGA; AARON SMITH; JORDAN POLLACK; and IZAAK KEMP, individually and on behalf of all others similarly situated, Plaintiffs v. HASBRO, INC.; and WIZARDS OF THE COAST, LLC, Defendants, filed a notice to remove the lawsuit from the State Court of the State of Georgia, County of Gwinnett County (Case No. 19C03355-S4) to the U.S. District Court for the Northern District of Georgia on June 11, 2019. The clerk of court for the Northern District of Georgia assigned Case No. 1:19-cv-02658. The case is assigned to Amy Totenberg. Hasbro, Inc., together with its subsidiaries, operates as a play and entertainment company. The company sells its products to wholesalers, distributors, chain stores, discount stores, drug stores, mail order houses, catalog stores, department stores, and other traditional retailers, as well as Internet-based e-tailers. Hasbro, Inc. was founded in 1923 and is headquartered in Pawtucket, Rhode Island. [BN] The Plaintiffs are represented by: Matthew Q. Wetherington, Esq. WERNER WETHERINGTON, P.C. - GA. 2860 Piedmont Rd., N.E. Atlanta, GA 30305 Telephone: (404) 564-4329 E-mail: matt@wernerlaw.com - and - Robert Neil Friedman, Esq Werner Wetherington, P.C. 2860 Piedmont Rd., N.E. Atlanta, GA 30305 Telephone: (404) 991-3692 E-mail: Robert@wernerlaw.com The Defendants are represented by: Kimberly Blount Reeves, Esq. Shelby R. Grubbs, Esq. MILLER & MARTIN, PLLC – ATL 1180 West Peachtree Street, N.W., Suite 2100 Atlanta, GA 30309-3407 Telephone: (404) 962-6412 Facsimile: (404) 962-6300 E-mail: kimberly.reeves@millermartin.com sgrubbs@millermartin.com HERON THERAPEUTICS: Aug. 5 Lead Plaintiff Motion Deadline Set ------------------------------------------------------------- Bernstein Liebhard LLP, a nationally acclaimed investor rights law firm, on June 4 disclosed that a securities class action lawsuit has been filed on behalf of those who purchased or acquired the securities of Heron Therapeutics, Inc. ("Heron," "HRTX" or the "Company") (NASDAQ: HRTX) between October 31, 2018 and April 30, 2019, both dates inclusive (the "Class Period"). The lawsuit, filed in the United States District Court for the Southern District of California, seeks to recover damages for Heron investors under the Securities Exchange Act of 1934. If you purchased HRTX securities, and/or would like to discuss your legal rights and options, please visit Heron Therapeutics HRTX Class Action Lawsuit or contact Matthew E. Guarnero toll free at (877) 779-1414 or MGuarnero@bernlieb.com. According to the lawsuit, throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Heron had failed to include adequate Chemistry, Manufacturing, and Controls ("CMC") and non-clinical information in its new drug application ("NDA") for HTX-011, a drug for management of post-operative pain; (ii) the foregoing increased the likelihood that the Food and Drug Administration ("FDA") would not approve Heron's NDA for HTX-011; and (iii) as a result, Heron's public statements were materially false and misleading at all relevant times. On May 1, 2019, Heron announced that it had received a Complete Response Letter ("CRL") from the FDA on April 30, 2019 regarding the Company's NDA for HTX-011. Heron advised investors that "[t]he CRL stated that the FDA is unable to approve the NDA in its present form based on the need for additional CMC and non-clinical information." On this news Heron's stock price fell $3.93 per share, or 18.13% to close at $17.75 per share on May 1, 2019. If you wish to serve as lead plaintiff in the Heron class action, you must move the court no later than August 5, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you take no action, you may remain an absent class member. If you purchased Heron securities, and/or would like to discuss your legal rights and options, please visit https://www.bernlieb.com/cases/heron-therapeutics-hrtx-shareholder-lawsuit-class-action-fraud-stock-138/or contact Matthew E. Guarnero toll free at (877) 779-1414 or MGuarnero@bernlieb.com. Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. As a result of its success litigating hundreds of lawsuits and class actions, the Firm has been named to The National Law Journal's "Plaintiffs' Hot List" thirteen times and listed in The Legal 500 for ten consecutive years. [GN] HOME DEPOT: McGuireWoods Attorneys Discuss Supreme Court Ruling --------------------------------------------------------------- Diane Flannery, Esq. -- dflannery@mcguirewoods.com -- Andrew Gann Jr., Esq. -- agann@mcguirewoods.com -- and Trent Taylor, Esq. -- rtaylor@mcguirewoods.com -- of McGuireWoods LLP, in an article for JDSupra, report that on Tuesday May 28, 2019, the United State Supreme Court declined to afford state court third-party, class action defendants the ability to remove a class action to federal court. See Home Depot U.S.A., Inc. v. Jackson, 17-1471 (May 28, 2019). In Jackson, Citibank, N.A., filed a debt-collection action against George Jackson in North Carolina state court. Jackson answered this action and filed his own claims: (1) an individual counterclaim against Citibank and (2) a third-party class-action against Home Depot U.S.A., Inc., and Carolina Water Systems, Inc. After Citibank dismissed its claims against Jackson, Home Depot filed a notice of removal pursuant to 28 U.S.C. Secs. 1332, 1441, 1446, and 1453. Jackson subsequently moved to remand which the federal district court granted and the United States Court of Appeals for the Fourth Circuit affirmed. After oral argument, the United State Supreme Court affirmed the Fourth Circuit in a 5-4 decision delivered by Justice Thomas. In the opinion, the Court held that 28 U.S.C. § 1441(a) does not permit removal by a third-party counterclaim defendant as such removal is limited to the original defendants as held in Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941). The Court also held that 28 U.S.C. § 1453(b) does not compel a different outcome. Although § 1453(b) states "may be removed by any defendant" as opposed to § 1441(a)'s "the defendant", the Court held that this clause does not alter the limitation on who can remove a class action. In the end, Jackson affirmed what Judge Niemeyer over a decade ago had called "an unfortunate loophole in the Class Action Fairness Act that only the Supreme Court can now rectify." Palisades Collections LLC v. Shorts, 552 F.3d 327, 345 (4th Cir. 2008). Now, it is up to Congress to rectify this "loophole." Until then, however, the decision in Jackson presents an additional challenge for third-party defendants in class actions. [GN] HOMELAND SECURITY: Sued over Redetermination Memo on Alien Kids --------------------------------------------------------------- A class action complaint has been filed against U.S. Department of Homeland Security (DHS), Kevin McAleenan, U.S. Citizenship and Immigration Services (USCIS), and Kenneth Cuccinelli for alleged violations of the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA), the Administrative Procedures Act (APA), and the constitutional due process rights of children who seek to access the statutory asylum system in the United States. The case is captioned J.O.P. (by and through Next Friend G.C.P.), M.A.L.C., M.E.R.E., and K.A.R.C., on behalf of themselves as individuals and on behalf of others similarly situated, Plaintiffs, v. U.S. DEPARTMENT OF HOMELAND SECURITY, KEVIN MCALEENAN (in his official capacity as Acting Secretary of Homeland Security), U.S. CITIZENSHIP & IMMIGRATION SERVICES, and KENNETH CUCCINELLI (in his official capacity as Acting Director of U.S. Citizenship & Immigration Services), Defendants, Case No. 8:19-cv-01944-GJH (D. Md., July 1, 2019). Plaintiffs allege that the Defendants have violated the aforementioned laws by their sudden shift in a policy that retroactively strips Plaintiffs of critical, statutory asylum protections. Plaintiffs are considered as unaccompanied alien children (UAC) and TVPRA relieves them of two procedural hurdles to accessing the asylum system, providing a more child-appropriate way for the government to process their claims to protection under U.S. and international law fairly. However, the permanent protections enacted by Congress in the TPVRA are unlawfully curtailed by Defendants' recent actions. On June 14, 2019, USCIS posted a memorandum dated May 31, 2019 (2019 Redetermination Memo) to its website announcing significant changes to how USCIS will implement the TPVRA, effective on June 30, 2019. USCIS did not publish the 2019 Redetermination Memo in the Federal Register, and the agency did not invite the public comment on any of the new directives set forth in the memorandum. The 2019 Redetermination Memo now mandates that an asylum officer must make an independent factual inquiry to redetermine whether an applicant met the statutory definition of a UAC on their filing date – even if that filing date was years ago, when the prior policy was in effect. DHS is a federal cabinet department responsible for implementing and enforcing the Immigration and Nationality Act. USCIS is a bureau within DHS and an "agency" within the meaning of APA. [BN] The Plaintiffs are represented by: Brian Burgess, Esq. Stephen R. Shaw, Esq. Goodwin Procter LLP 901 New York Avenue, NW Washington, DC 20001-4432 Telephone: (202) 346-4000 Facsimile: (202) 346-4444 E-mail: BBurgess@goodwinlaw.com SShaw@goodwinlaw.com - and - Elaine Herrmann Blais, Esq. Sarah K. Frederick, Esq. Kevin J. DeJong, Esq. Christie Larochelle, Esq. GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Telephone: (617) 570-1000 Facsimile: (617) 523-1231 E-mail: EBlais@goodwinlaw.com SFrederick@goodwinlaw.com KDejong@goodwinlaw.com CLarochelle@goodwinlaw.com - and - Scott Schuchart, Esq. KIDS IN NEED OF DEFENSE 1201 L Street, NW, Floor 2 Washington, DC 20005 Telephone: (202) 318-0595 Facsimile: (202) 824-0702 E-mail: sschuchart@supportkind.org - and – Wendy Wylegala, Esq. KIDS IN NEED OF DEFENSE c/o Lowenstein Sandler LLP 1251 Avenue of the Americas New York, NY 10020 Telephone: (862) 926-2069 Facsimile: (202) 824-0702 E-mail: wwylegala@supportkind.org - and - Michelle N. Mendez, Esq. CATHOLIC LEGAL IMMIGRATION NETWORK (CLINIC) 8757 Georgia Avenue, Suite 850 Silver Spring, MD 20910 Telephone: (301) 565-4824 Facsimile: (301) 565-4824 E-mail: mmendez@cliniclegal.org - and - Rebecca Scholtz, Esq. Catholic Legal Immigration Network (CLINIC) c/o University of St. Thomas Legal Services Clinic 30 S. 10th Street Minneapolis, MN 55403 Telephone: (651) 962-4833 Facsimile: (301) 565-4824 E-mail: rscholtz@cliniclegal.org - and - Kristen Jackson, Esq. Mary Tanagho Ross, Esq. PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA 90005 Telephone: (213) 385-2977 Facsimile: (213) 201-4727 E-mail: kjackson@publiccounsel.org mross@publiccounsel.org HVG: Defends Alucobond PE-Core Cladding Class Action in Australia ----------------------------------------------------------------- Michael Bleby, writing for Australian Financial Review, reports that Alucobond panels complied with all relevant laws and codes and it was only the decisions of consultants and contractors that resulted in them being used in ways that were dangerous and created risk of fire, the country's largest supplier of polyethylene-core panels says in its defence to a potentially devastating class action claim. The 100 per cent PE-core aluminium composite cladding sheets "were capable of being used or fitted onto buildings by qualified professionals" in ways that met state and territory requirements as well as the National Construction Code, Sydney-based Halifax Vogel Group said in defence documents filed with the Federal Court. As a result, any fault for incorrect use lay with the contractors who put the ACP panels on buildings and certifiers who declared it to be used safely, not HVG, which disclosed all necessary information to allow its products to be used safely, the company said. "The obligation to use building products, including ACPs, in a safe manner, in compliance with all relevant standards, codes and regulations, is on the builder, architect and/or the developer," HVG says. The outcome of the case matters. A judgment could give compensation to owners of potentially thousands of apartments across Australia, as well as owners of commercial and government buildings and even long-term leaseholders with the obligation to rectify defects. The dispute revolves around the use of Australian Consumer Law over an issue that would normally be fought between consumers -- apartment owners -- and the builder, as was the case in the long-running legal action over combustible cladding on Melbourne's Lacrosse tower. The lead applicants are owners of 17 apartments in the Shore Dolls Point, at 172-174 Russell Avenue, in Sydney's southern suburb of Dolls Point. HVG during 2011 and 2012 supplied 128 panels for use on the four-level building. ACL guarantee cited In their statement of claim, owners in the case backed by litigation funder IMF Bentham and represented by William Roberts Lawyers argue the panels failed to meet standards set by consumer protection laws and carried a "material risk" of causing or spreading fire The owners argue that Alucobond PE-core cladding was "at all material times" a good acquired for consumption under Australian Consumer Law and was subject to an ACL guarantee that it be of acceptable quality. In its statement, HVG argues that the Alucobond panels were not goods for use or consumption as defined by ACL or the Trade Practices Act and anyone being supplied with the panels was not a consumer under those laws. The company also says that facade contractor Modernise Installations, which put the panels on the building, acquired the panels for the purpose of resupply to the building and did not meet the definition of a consumer. HVG says the panels were not subject to either the Acceptable Quality Guarantee of ACL or the Merchantable Quality provisions of the TPA, which in general terms require them to be fit for the purpose. A second line of defence, common in legal arguments, is that if the court finds that either provision does apply, then any non-compliance with those guarantees is the fault of parties responsible for installing and certifying the product. Arguments by both sides have yet to be finalised. The Federal Court Justice Michael Wigney ruled that 3A Composites, the German manufacturer of the panels, had a prima facie case to answer and gave the applicants leave to serve their statement of claim against the Osnabruck-based company. 3A Composites will now have to hire local lawyers to represent it and draft a defence to the claims. In addition, HVG replaced its solicitors, appointing Sparke Helmore in place of firm Quinn Emanuel, which prepared the defence document. Its new lawyers may amend the original defence statement. HVG did not respond to a question as to why it replaced its solicitors. HVG has retained barrister Nicholas Owens, SC. [GN] ICAN BENEFIT: Policy Exclusion Relieves Insurer from Class Action ----------------------------------------------------------------- Andrew G. Simpson, writing for Insurance Journal, reports that a federal judge in Florida has ruled that a policy exclusion for invasion of privacy claims relieved an insurer of any responsibility for a $60 million settlement against a Boca Raton company for violations of the Telephone Consumer Protection Act. Liberty International Underwriters, a division of Liberty Mutual, was granted a summary judgment against plaintiffs looking to collect on a class action settlement they obtained from iCan Benefit Group for violating the TCPA by sending them unsolicited advertisements by text. The U.S District Court in the Southern District of Florida agreed with the insurer that there was no coverage and barred the plaintiffs from recovering the settlement or defense costs from Liberty. The court concluded that Liberty's Private Advantage policy's broad exclusion barring coverage for claims "arising out of" an actual or alleged invasion of privacy precluded coverage for iCan entirely. After Liberty denied coverage for the TCPA claims by those receiving iCan's unwanted autodialed text messages on their cellular telephones, health insurance broker iCan settled the class action for $60 million. The plaintiffs then received an assignment of iCan's rights and interests in the Liberty insurance policy and sought to collect from the insurer. The dispute led to cross-motions for summary judgment, with plaintiffs arguing wrongful denial of coverage and Liberty arguing that there was no coverage because of its invasion of privacy exclusion. The Liberty exclusion in the policy providing coverages for directors and officers and employment practices read in part that the insurer would not be liable for a loss on account of any claim made against its insured that is: based upon, arising out of, or attributable to any actual or alleged defamation, invasion of privacy, wrongful entry and eviction, false arrest or imprisonment, malicious prosecution, abuse of process, assault, battery or loss of consortium. Liberty argued that since its policy broadly defined "claim" as a "civil proceeding" and the class action alleged TCPA violations that caused actual harm in the form of invasions of privacy, among other harms, the entire lawsuit "arises out of" an invasion of privacy. But plaintiffs contended that the exclusion was inapplicable because there were other allegations in addition to invasion of privacy within the complaint against iCan, that the invasions of privacy were just one part of the underlying case. Plaintiffs also argued that they did not have to prove invasion of privacy in order to prevail in the class action since it is not an element of the TCPA cause of action. U.S. District Judge Robin L. Rosenberg determined that the question for the court was whether the underlying complaint, or some component of it, is a claim, which arose out of an invasion of privacy. The judge cites several precedents supporting the idea that a violation of the TCPA may in some circumstances be considered an invasion of privacy when analyzing insurance coverage. The Florida Supreme Court's analysis of the nexus between the TCPA and invasion of privacy in Penzer v. Transportation Insurance Company in 2010 found the "source of the right of privacy is the TCPA, which provides the privacy right to seclusion" . . . and that "the stated purpose of the TCPA . . . . is to protect the privacy of individuals . . ." in a case involving the faxing of unsolicited advertisements. The court also looked at a 2017 Ninth Circuit case -- Los Angeles Lakers, Inc. v. Federal Insurance Co. -- which evaluated the precise question of whether an exclusion from coverage of suits arising from an invasion of privacy also includes suits arising from TCPA violations. This court concluded that because a "TCPA claim is inherently an invasion of privacy claim," TCPA claims fell under the policy's exclusionary clause. The Eighth Circuit Court of Appeals also looked at the relationship between the TCPA and invasion of privacy in Universal Underwriters Insurance Co. v. Lou Fusz Automotive Network in 2005. This court examined whether an insurance policy that defined an "injury" as including "invasion[s] of rights of privacy" covered a lawsuit alleging TCPA violations. Like the Florida Supreme Court and the Ninth Circuit, this court concluded that "it is clear that Congress viewed violations of the Act as 'private nuisances' and as 'invasions of privacy' under ordinary, lay meanings of these phrases." The Eastern District of Virginia also concluded that a policy exclusion for "invasion of privacy" included TCPA claims in Resource Bank v. Progressive Casualty Insurance Co. According to Rosenberg, it is important that the Liberty policy excludes claims that "arise out of" an invasion of privacy because, she noted, the Florida Supreme Court has held that the words "arising out of" in an insurance policy are unambiguous and absolute in scope. Coupling the case law that interprets TCPA violations as invasions of privacy with Florida's interpretation of "arising out of," the court found that the TCPA violations at issue in the iCan matter arise out of an invasion of privacy and therefore are excluded from coverage under Liberty's privacy exclusion. The court also considered whether the entire iCan claim is excluded from coverage or whether just those aspects of the underlying case that involve invasion of privacy are excluded. The court noted that the plaintiffs expressly alleged invasion of privacy as a basis for their lawsuit and thus the claim includes allegations that the iCan plaintiffs suffered the harm of invasion of privacy. But even if the broad definition of claim did not preclude coverage over the entirety of the underlying action, the plaintiffs failed to allocate the settlement agreement between covered and uncovered claims as required by Florida law, Rosenberg added. "Florida law is well-settled that the party seeking coverage for a settlement has the burden of proving that the settlement is covered under the insurance policy," the decision stated. [GN] ILLINOIS: Ford's Amended Complaint May Proceed, Says Court ---------------------------------------------------------- The Hon. Matthew F. Kennelly entered an order in the lawsuit titled Melvin Ford (M487792) v. John Baldwin, et al., Case No. 3:19-cv-50074 (N.D. Ill.), ruling that the Plaintiff's amended complaint may proceed consistent with the order. John Baldwin is the Acting Director of the Illinois Department of Corrections. Mr. Ford, an Illinois prisoner, has filed a pro se lawsuit under 42 U.S.C. Section 1983 regarding his detentions at the Northern Reception and Classification Center at Stateville Correctional Center (NRC). The Court orders the Clerk of Court to (1) file the amended complaint; (2) substitute Randy Pfister as Defendant for John Doe Warden; (3) issue summonses for service of the amended complaint on Defendants Pfister, Porter, Coles, Brimmage, Menchaca, Walker, Robinson , McGruder, Brothers, Koscyk, and MacCador ; (4) terminate all other Defendants; and (4) send Plaintiff eleven blank USM-285 (Marshals service) forms, a magistrate judge consent form, filing instructions, and a copy of this order. The Plaintiff must promptly complete and return a USM-285 form for service on each Defendant. Failure to return the USM-285 forms may result in dismissal of the unserved Defendant(s), as well as dismissal of this case in its entirety. The Plaintiff also must promptly submit a change-of-address notification if he is transferred to another facility or released. If the Plaintiff fails to keep the Court informed of his address, this action will be subject to dismissal for failure to comply with a Court order and for failure to prosecute. The Court appoints the U.S. Marshal to serve the Defendants. The Plaintiff's amended motion for class certification is denied. The Plaintiff's renewed motion for attorney representation is denied as premature, without prejudice to renewal after the Defendants respond to the complaint. In the Order, Judge Kennelly notes that in regard to the civil conspiracy claim, which the Plaintiff attempts to bring against all Defendants, he alleges in a conclusory fashion that the Defendants conspired to deprive him of his rights and a fair trial. Judge Kennelly opines that a bare allegation of conspiracy is insufficient to state a claim. Because the Plaintiff has not alleged any facts that indicate the Defendants entered into a conspiracy to violate his rights, the claim is dismissed.[CC] ITS NATIONAL: Deweese Settlement Has Final Court Approval --------------------------------------------------------- The United States District Court for the District of Nevada issued an Order granting Plaintiffs' Motion for Final Approval of Class Action Settlement in the case captioned GLENN DEWEESE and JOSHUA HOLTOM, on behalf of themselves and all others similarly situated, Plaintiffs, v. ITS NATIONAL, LLC; and DOES 1 through 50, inclusive, Defendants. Case No. 3:18-cv-00375-MMD-WGC. (D. Nev.). The Court confirms as final the following settlement class: All Inside Sales Positions (Account Executives, Account Managers, and other similar job positions) and Carrier Specialists (and other similar job positions) who were employed by Defendant ITS National, LLC, at any time from June 6, 2015 to March 19, 2019. The Court confirms the appointment of Glen Deweese and Joshua Holtom as the Class Representatives and approves the enhancement payment of $15,000 to each, $30,000 in total, as set forth in the Settlement Agreement given the work these Class Representatives performed on behalf of the Class and in consideration of their execution of a general release of all their claims against Defendant. The Court confirms the appointment of Thierman Buck LLP as Class Counsel for the settlement class and approves their requests for attorneys' fees and litigation costs of $215,000 and $5,000, respectively. Pursuant to Fed. R. Civ. P. 23(e), the Court grants final approval to this settlement and finds that the settlement is fair, reasonable, and adequate in all respects, including the attorneys' fees, costs, and incentive award provisions. The Court specifically finds that the settlement confers a substantial benefit to settlement class members, considering the strength of plaintiff's claims and the risk, expense, complexity, and duration of further litigation. The response of the class supports settlement approval. Zero (0) class members objected to the settlement and only three (3) requested exclusion from the settlement. The Court further finds that the settlement is the result of arms-length negotiations between experienced counsel representing the interests of both sides, with the assistance of a federal Magistrate Judge, which supports approval of the settlement in accordance with the standards set forth in the joint motion for final approval of settlement. A full-text copy of the District Court's June 20, 2019 Order is available at https://tinyurl.com/y2otkydx from Leagle.com. Glenn DeWeese & Joshua Holton, Plaintiffs, represented by Mark R. Thierman -- mark@thiermanbuck.com -- Thierman Buck, LLP, Joshua D. Buck -- josh@thiermanbuck.com -- Thierman Buck, LLP & Leah Lin Jones -- leah@thiermanbuck.com -- Thierman Buck, LLP. ITS National, LLC, Defendant, represented by Jill Irene Greiner, Dotson Law & Robert A. Dotson, Dotson Law, City Hall Tower, One East First St. Reno, NV 89501 JANNSEN PHARMA: Oct. 21 Trial Date Set for Opioid Class Action -------------------------------------------------------------- Diane Wagner, writing for Rome News-Tribune, reports that the bellwether cases in Rome and Floyd County's lawsuit against opioid manufacturers and distributors are set to go to trial Oct. 21 in a federal district court. Dec. 13 is the deadline for closing statements and final instructions to the jury, according to the latest, May 1, order by U.S. District Judge Dan. A. Polster of the Northern District of Ohio. Rome attorney Andy Davis, who's taking the lead on the local cases with attorney Bob Finnell, has said the legal decisions in the Track One cases will be applied to all the others in the class action suit. Polster consolidated the lawsuits filed by cities, counties and states into a single multidistrict litigation case in December 2017 to speed resolution. Rome and Floyd joined a suit with Chattooga and Whitfield counties and the city of Cartersville in May 2018. They're seeking damages to fund increased costs for police, medical and other services and to fund local programs to address the epidemic. A new report through the U.S. Department of Agriculture's opioid assessment tool states that 32 people died of opioid overdoses in Floyd County in the five years from 2013 to 2017. That's a rate of 10.7 per 100,000 people. The rate is 11.5 statewide and 16.4 nationally, and it appears to be trending up. Georgia, Alabama, Tennessee and North and South Carolina are among the states with what the Centers for Disease Control call "a statistically significant increase" in deaths from 2016 to 2017. However, the tool notes that there are variations in how overdoses are reported and estimates should be used with caution. Last year, the USDA tool indicated 68 Floyd County deaths between 2012 and 2016 -- a rate of 22.2 per 100,000. The state's rate was 16.8 for those five years and the national rate was 22.5. Roughly 1,500 cases are part of the consolidated case in Ohio. The plaintiffs argue that manufacturers knew the painkillers such as oxycontin and hydrocodone were highly addictive -- but they downplayed the risk and aggressively marketed them to physicians. Other elements include an accusation that distributors failed to monitor sales, as required, and didn't report suspicious orders. In Floyd County, prescriptions for opioid painkillers such as oxycodone and morphine were issued at a rate of 153.3 for every 100 residents in 2016, according to a CDC study. About 500 cases are proceeding separately in states. The first trial, in Oklahoma, has started. Oklahoma Attorney General Mike Hunter's opened the state's case against consumer products giant Johnson & Johnson and several subsidiaries by saying the powerful painkillers have led to the "worst manmade public health crisis" in U.S. history. "This crisis is devastating Oklahoma," Hunter said, adding that opioid overdoses killed 4,653 people in the state from 2007 to 2017. Lawyers for Janssen Pharmaceutical Companies of Johnson & Johnson say the products the company manufactured were not just legal, but were heavily regulated. Janssen attorney Larry Ottaway told the judge that the drugs are important because they can help people manage debilitating pain. "Serious chronic pain is a soul-stealing, life-robbing thief. It leads to depression. It leads to suicide. People can't take care of their own basic functions," Ottaway said. "You will hear from doctors, who practice right here in Oklahoma, some of those stories." The Oklahoma case is significant because it's the first to go to trial and could help shape negotiations to resolve the consolidated case. Two companies, OxyContin-maker Purdue Pharma and Teva Pharmaceuticals , settled with Oklahoma ahead of the trial. The Associated Press contributed to this report. [GN] JEHOVAH'S WITNESSES: Can Appeal Ruling in Sexual Assault Lawsuit ---------------------------------------------------------------- Presse Canadienne & Montreal Gazette, writing for Montereal Gazette, reports that Jehovah's Witnesses in Quebec may appeal a judgment that gave the green light to a class-action lawsuit against them for alleged sexual assault on minors. The Quebec Court of Appeal on June 3 granted them the right to appeal a judgment authorizing the class action, handed down in February by Justice Chantal Corriveau of the Superior Court. At the heart of the class action is whether the church failed to protect its members when they tried to denounce sexual abuse. The class action argues the church's internal reporting policies conceal abuse and have silenced hundreds of sexual assault complaints through the years. It seeks at least $250,000 in damages for each alleged victim. The lawsuit targets the Watch Tower Bible and Tract Society of Canada, the parent company of Jehovah's Witnesses in the country, and another society based in Pennsylvania that's responsible for the church's communications and publications. At the heart of the class action is whether the church failed to protect its members when they tried to denounce sexual abuse. According to the lawsuit, Lisa Blais, now in her 40s, first spoke out about the alleged abuse when she was 16 years old. She sought help from her parents, another Jehovah's Witness and an elder -- members who act as spiritual leaders in different congregations -- but says she was discouraged from reporting the abuse in order to protect the community. Blais left her family at 17 and was officially disfellowshipped at 24. In seeking leave to appeal Corriveau's judgment, Watch Tower Canada described the decision as "unprecedented in Quebec." The alleged assaults did not take place in an institutional setting, the organization noted, and it was not leaders or employees of the religious organization who allegedly committed the acts. The Quebec Court of Appeal found that the Jehovah's Witnesses' arguments deserve to be further assessed. Jehovah's Witnesses will now have to plead their case before the Court of Appeal, at a date yet to be determined. [GN] JMR LANDSCAPING: Zuniga Moves to Certify Class of Employees ----------------------------------------------------------- The Plaintiff in the lawsuit styled SERGIO ARMANDO LAZCON ZUNIGA, on behalf of himself, and all other similarly situated plaintiffs known and unknown v. JMR LANDSCAPING LLC, and JOEY ROSSA, Individually, Case No. 1:18-cv-07470 (N.D. Ill.), moves for class certification of his overtime wage claims under the Illinois Wage Payment and Collection Act for the Defendants' alleged failure to comply with the Act's requirements governing deductions from the wages of its employees. The class is defined as: All individuals who performed work for JMR Landscaping, LLP, between July 24, 2008, and the present; and who had deductions made from their pay for uniform purchase, rental, laundering or other uniform related deductions. Mr. Zuniga also seeks an order: A. authorizing notice to issue to putative class members; B. appointing his counsel as class counsel, and him as Class Representative; and C. directing the Defendants to produce to his counsel the names and last known postal addresses, telephone numbers, and e-mail addresses of all individuals who fall within the class definition and who worked for Defendant JMR from July 24, 2008, to the present, to be produced in a usable electronic format within ten (10) days of the date of the order.[CC] The Plaintiff is represented by: Jorge Sanchez, Esq. LOPEZ & SANCHEZ LLP 77 W. Washington St., Suite 1313 Chicago, IL 60602 Telephone: (312) 420-6784 E-mail: jsanchez@lopezsanchezlaw.com - and - Alexandria Santistevan, Esq. FARMWORKER AND LANDSCAPER ADVOCACY PROJECT 33 N. La Salle, Suite 900 Chicago, IL 60602 Telephone: (312) 784-3541 E-mail: litigation@flapillinois.org One of the Plaintiff's attorneys certifies that notice was sent to this attorney of record: David Ritter, Esq. BARNES & THORNBURG LLP One North Wacker Drive, Suite 4400, Chicago, IL 60606-2833 Telephone: (312) 214-4862 E-mail: david.ritter@btlaw.com JP MORGAN: Settles Class Action Over Parental Leave Policy ---------------------------------------------------------- Scottish Legal News reports that banking giant JP Morgan has settled a class action lawsuit over its parental leave policy by agreeing to pay affected employees $5m (GBP3.9m). Derek Rotondo said the bank refused him parental leave benefit normally available to all employees who are "primary caregivers". He took legal action against the company in 2017, which was followed by a class action lawsuit led by the American Civil Liberties Union (ACLU), the first of its kind. The class action was on behalf of male employees who claimed to be unlawfully refused paid parental leave on the same terms as mothers between 2011 and 2017. Mr Rotondo said in the complaint that when he sought to take 14 weeks' "primary caregiver" leave following the birth of his son, JP Morgan said that fathers were eligible for only two weeks' paid parental leave unless they could show that their partners were either incapacitated or had returned to work. The ACLU said that the firm has agreed to establish a $5m fund to compensate the fathers. The firm will also now maintain a gender-neutral parental leave policy. JP Morgan's Associate General Counsel Reid Broda said the company was "pleased to have reached an agreement in this matter and look forward to more effectively communicating the policy so that all men and women employees are aware of their benefits". "We thank Mr Rotondo for bringing the matter to our attention." [GN] JPMORGANCHASE: Sends Forced Arbitration Email to Customers ---------------------------------------------------------- Ian Millhiser, writing for ThinkProgress, reports that JPMorgan Chase, the banking behemoth that provides credit cards to thousands of Americans, sent an email to many of its customers on Friday which seeks to strip those customers of most of their rights to sue the bank if the bank violates the law. Though the email gives those customers the ability to opt out of this effort to strip away their rights, the instructions on how to do so are buried deep in the email -- deep enough that the bank likely hopes that no one will read that far. The subject of the email is "Important information regarding changes to your Chase account." A copy of this email was forwarded to ThinkProgress by a Chase customer who received it. Forced arbitration The relevant portions of the email concern forced arbitration, an abusive practice largely invented by conservatives on the Supreme Court. Beginning in the 1980s, the Supreme Court began to rewrite the Federal Arbitration Act of 1925 -- a statute that, in Justice Ruth Bader Ginsburg's words, was intended to allow "merchants with relatively equal bargaining power" to resolve disputes through private arbitrators -- to allow companies to force workers and consumers into a privatized arbitration system that favors corporate parties. This rewriting accelerated in the 21st century, with a series of 5-4 decisions that departed sharply from the Arbitration Act's text. The Act, for example, exempts "workers engaged in foreign or interstate commerce." Nevertheless, in Circuit City v. Adams, the Supreme Court held that most workers engaged in foreign or interstate commerce may be forced into arbitration agreements. Similarly, in AT&T Mobility v. Concepcion, the Supreme Court held that companies may force their customers to sign away their right to join a class action lawsuit as a condition of doing business for that company. More recently, in Epic Systems v. Lewis, a 5-4 court explained that workers can be forced to sign a forced arbitration agreement with a class action ban under pain of firing. As a paper by the Economic Policy Institute's Ross Eisenbrey explains, individual workers forced into arbitration are less likely to prevail before an arbitrator than they are before a real judge. And when they do prevail, they typically receive far less money. Similarly, class action bans effectively allow companies to illegally take money from their workers or consumers with impunity, so long as they only take a little bit at a time. Class actions allow multiple plaintiffs, who all share a similar grievance against the same defendant, to join together in a single lawsuit against that defendant. They are particularly important when a company engages in widespread, low-dollar lawbreaking against many individuals. Suppose, for example, that a bank decides to illegally charge a $150 fee to each of its 100,000 credit card customers. Nearly none of these customers will sue the bank over a matter of only $150, because the cost of litigating such a case will exceed the amount of money at issue. So if the customers cannot join together in a class action, the bank will walk away with a cool $15 million ($150 * 100,000). How to opt-out The Chase email contains both a forced arbitration provision and a ban on class actions. It "provides that all disputes between you and Chase must be resolved by BINDING ARBITRATION," and explicitly states that parties to the forced arbitration agreement "GIVE UP YOUR RIGHT TO GO TO COURT (except for matters that may be taken to a small claims court)." The email further provides that class actions "are not available under this agreement to arbitrate." Though the email does allow some claims to proceed in small claims court rather than before an arbitrator, it also provides that such claims must proceed "on an individual basis." Thus, the email seeks to immunize Chase from class action litigation. Significantly, however, the email also provides that customers may opt out of the forced arbitration provision and class action ban, but only if they comply with very specific instructions. Can I (the customer) reject this agreement to arbitrate? Yes. You have the right to reject this agreement to arbitrate if you notify us no later than 8/9/2019. You must do so in writing by stating that you reject this agreement to arbitrate and include your name, account number, address and personal signature. Your notice must be mailed to us at P.O. Box 15298, Wilmington, DE 19850-5298. Rejection notices sent to any other address, or sent by electronic mail or communicated orally, will not be accepted or effective. If you received this email, in other words, and do not wish to give up your rights to your credit card company, you must send a letter via snail mail to the P.O. Box listed above — and you must do so by early August. Though it may be surprising that Chase allows people to opt-out of forced arbitration, the opt-out provision serves a very specific legal purpose. As Professor Charlotte Garden writes in a recent paper on forced arbitration, California law arguably permits courts to strike down forced arbitration provisions if that provision is imposed without choice. So it's in a company's interest to give customers a choice to opt-out -- so long as the choice is buried where few people are likely to notice it. As Garden explains, the delivery service Grubhub imposed a forced arbitration agreement on its drivers. Yet "only two delivery drivers of thousands had opted out of the [forced arbitration provision] during the months after Grubhub added its opt out clause." Similarly, "only 270 drivers out of more than 160,000" opted out of Uber's forced arbitration agreement. Thus, opt-out clauses help protect companies from a court decision invalidating a forced arbitration agreements, and they typically do so at virtually no cost to the company. Few people notice them. Fewer still probably understand them. So almost no one opts out. Chase, however, cannot prevent members of the media from reporting on this abusive practice. Nor can it prevent any of its customers who read this column from invoking the opt-out provision. [GN] JUUL: Alabama Teens File E-Cigarette Addiction Class Action ----------------------------------------------------------- Karen Kidd, writing for Legal Newsline, reports that two teens who claim to have become addicted to e-cigarettes while in their late teens are suing the manufacturer they claim has teamed up with old-school tobacco to market products to young people. "Plaintiffs bring this lawsuit to redress the harm already sustained and to prevent future harm to others," the lawsuit, filed May 22, in U.S. District Court in Alabama's Northern District, Western Division, states. In their 38-page complaint, Elizabeth Ann Swearingen of Montgomery County, Alabama, and John Thomas Via Peavy of Lee County, Alabama, claim they became addicted to JUUL's e-cigarette at ages 18 and 17, respectively, and now suffer nicotine ingestion-related complications. The two, both now 19, filed their putative class action against JUUL, tobacco company Altria, which owns a sizable chunk of JUUL, and Philip Morris, also owned by Altria. "Now that JUUL has Altria's infrastructure, progress in nicotine cessation stands to erode," Swearingen and Via Peavy said in their lawsuit. "Defendants use the very same fraudulent and deceptive youth marketing business practices adjudged to violate federal racketeering laws." Earlier in June, North Carolina became the first state to sue e-cigarette manufacturer JUUL over its alleged marketing practices. In a statement released shortly after he filed North Carolina's lawsuit in Durham County Superior Court on May 15, the state's Attorney General Josh Stein maintained JUUL was targeting young people as customers. "As a result, vaping has become an epidemic among minors," Stein said in his statement. "JUUL's business practices are not only reckless, they're illegal. And I intend to put a stop to them. We cannot allow another generation of young people to become addicted to nicotine." JUUL responded with its own statement, maintaining its products were never intended for children and that they are supposed to be used to help adult tobacco users kick their disease-causing habit. "While we have not yet reviewed the complaint, we share the attorney general's concerns about youth vaping, which is why we have been cooperating with his office and why we have taken the most aggressive actions of anyone in the industry to combat youth usage," JUUL said in a widely published statement. North Carolina's lawsuit isn't all that it seems, a government relations expert for an Illinois-based free-market think tank told Legal Newsline shortly after that case was filed. "It's the same old situation," George Jamerson, director of government relations at The Heartland Institute, told Legal Newsline. "It is politically convenient. The lawsuit is frivolous, and amounts to political grandstanding." Swearingen claims in her lawsuit with Via Peavy that she was unaware that JUUL vaping products contained nicotine before she became addicted. "Swearingen still does not know how much nicotine JUUL contained or that JUUL was specifically developed to create and sustain a nicotine addiction," the lawsuit said. "Swearingen was attracted to and most often used the mango flavor JUULpod." Via Peavy, a student at Auburn University, claims he has experienced severe breathing problems since JUUL products. Via Peavy and Swearingen both claim to have been exposed to "significant toxic substances" in their JUUL product usage, which may cause or contribute to nicotine addiction and economic harm. They allege that neither "would not have purchased JUUL products" had they "known the true facts." Both plaintiffs "reasonably fear" that JUUL, Altria and Philip Morris "are working in concert to market and advertise JUUL to youth and teenagers and that defendants' association and marketing efforts increase the likelihood that minor children will begin using e-cigarettes and become addicted," the lawsuit said. "Unless these defendants are enjoined from their unlawful acts as described below, the harms will continue as their family members will continue to be exposed to their deceptive youth marketing campaigns." The case, assigned to U.S. District Court Judge L. Scott Coogler, was filed on behalf of the plaintiffs by attorneys from the law firms of Methvin, Terrell, Yancey, Stephens & Miller in Birmingham, Alabama; Jinks, Crow & Dickson in Union Springs, Alabama; and Morris, King & Hodge in Huntsville, Alabama. The case number is 7:19-cv-00779-LSC [GN] KIA MOTORS: Faces Galvan Suit over Defective GDI Engine ------------------------------------------------------- LOURDES GALVAN, individually and on behalf of all others similarly situated, Plaintiff v. KIA MOTORS AMERICA, INC.; and DOES 1 through 10, inclusive, Defendant, Case No. 19STCV20507 (Cal. Super., Los Angeles Cty., June 11, 2019) alleges that the Defendants' vehicle and its 2.0 gasoline direct injection (GDI) engine were defective and susceptible to sudden and catastrophic failure. According to the complaint, the Defendants knew since 2009, if not earlier, that the 2011-2019 KIA Optima, 2011-2019 KIA Sportage, 2012-2019 KIA Sorento, 2011-2019 Hyundai Sonata, and 2013-2019 Hyundai Santa Fe vehicles equipped with a 2.0 or 2.4L engine, including the 2011 Kia Optima contained one or more design and/or manufacturing defects in their engines that results in the restriction of oil flow through the connecting rod bearings, as well as to other vital areas of the engine. The defect -- which typically manifests itself during and shortly after the limited warranty period has expired -- causes the KIA Vehicle to experience catastrophic engine failure, stalling while in operation and poses an unreasonable safety risk of non-collision fires all due to inadequate lubrication. Furthermore, engine seizure often causes internal parts, such as the connecting rods, to break and a knock hole in the engine, permitting fluids to leak and ignite a fire. Kia Motors America, Inc. operates as an automobile dealer. The Company offers passenger cars, minivans, sports utility vehicles, crossovers, sedans, vans, and cargo trucks. Kia Motors serves customers worldwide. [BN] The Plaintiff is represented by: Tionna Dolin, Esq. Sean Crandall, Esq. STRATEGIC LEGAL PRACTICES A PROFESSIONAL CORPORATION 1840 Century Park East, Suite 430 Los Angeles, CA 90067 Telephone: (310) 929-4900 Facsimile: (310) 943-3838 E-mail: tdolin@slpattomey.com scrandall@slpattorney.com LANDSTAR SYSTEM: Removes Tanious Suit to C.D. California -------------------------------------------------------- The Defendant in the case of HANY TANIOUS, individually and on behalf of all others similarly situated, Plaintiff v. LANDSTAR SYSTEM, INC.; LANDSTAR RANGER, INC.; and DOES 1 THROUGH 100, Defendants, filed a notice to remove the lawsuit from the Superior Court of the State of California, County of San Bernardino (Case No. CIVDS1902511) to the U.S. District Court for the Central District Of California on June 11, 2019. The clerk of court for the Central District Of California assigned Case No. 5:19-cv-01067-DSF-SHK. The case is assigned to Judge Dale S. Fischer and referred to Magistrate Judge Shashi H. Kewalramani. Landstar System, Inc. provides integrated transportation management solutions in the United States, Canada, Mexico, and internationally. It operates through two segments, Transportation Logistics and Insurance. The company markets its services through independent commission sales agents and third party capacity providers. Landstar System, Inc. was founded in 1968 and is headquartered in Jacksonville, Florida. [BN] The Plaintiff is represented by: Andrew John Rowbotham, Esq. Fletcher W H Schmidt, Esq. Matthew Kevin Moen, Esq. Paul K. Haines, Esq. HAINES LAW GROUP, APC 222 N. Sepulveda Blvd., Suite 1550 El Segundo, CA 90245 Telephone: (424) 292-2350 Facsimile: (424) 292-2355 E-mail: arowbotham@haineslawgroup.com fschmidt@haineslawgroup.com mmoen@haineslawgroup.com phaines@haineslawgroup.com - and – Levik Yarian, Esq. LAW OFFICE OF LEVIK YARIAN 700 N. Central Ave., Suite 470 Glendale, CA 91203 Telephone: (818) 459-4999 Facsimile: (818) 484-2345 E-mail: levik@yarianlaw.com The Defendants are represented by: Christopher Chad McNatt , Jr. SCOPELITIS GARVIN LIGHT HANSON AND FEARY LLP 2 North Lake Avenue Suite 560 Pasadena, CA 91101 Telephone: (626) 795-4700 Facsimile: (626) 795-4790 E-mail: cmcnatt@scopelitis.com - and - James Anthony Eckhart, Esq. SCOPELITIS GARVIN LIGHT HANSON AND FEARY LLP 10 West Market Street Suite 1400 Indianapolis, IN 46204 Telephone: (317) 637-1777 Facsimile: (317) 687-2414 E-mail: jeckhart@scopelitis.com - and - Adam C Smedstad, Esq. SCOPELITIS GARVIN LIGHT HANSON AND FEARY LLP 3241 West McGraw Street Suite 301F Seattle, WA 98199 Telephone: (206) 288-6192 Facsimile: (206) 299-9375 E-mail: asmedstad@scopelitis.com LIVENT CORP: Rosen Law Firm Files Securities Fraud Class Suit ------------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, reminds purchasers of the securities of Livent Corporation (NYSE: LTHM) pursuant and/or traceable to Livent's false and/or misleading registration statement and prospectus (collectively, the "Registration Statement") issued in connection with Livent's initial public offering completed in October 2018 (the "IPO") of the important July 22, 2019 lead plaintiff deadline in securities class action. The lawsuit seeks to recover damages for Livent investors under the federal securities laws. To join the Livent class action, go to http://www.rosenlegal.com/cases-register-1579.html NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. According to the lawsuit, the Registration Statement was false and/or contained misleading statements and/or failed to disclose that: (1) a supply contract with Nemaska Lithium Inc. had been terminated; (2) Livent would be forced to fulfill its customer contracts using alternative vendors at reduced revenues and lower margins; (3) Livent had a long-standing contract to supply lithium hydroxide to a customer at a much lower price than any of Livent's existing contracts; (4) Livent's margins were squeezed due to the customer's increased orders; and (5) as a result of the foregoing, defendants' positive statements about Livent's business, operations, and prospects, were materially misleading and/or lacked a reasonable basis. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than July 22, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-register-1579.html Contact: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Phone: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 Website: www.rosenlegal.com Email: lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com [GN] MACY'S INC: Underpays Sales Associates, Ghalbi Fouladbazou Say -------------------------------------------------------------- PARVANEH GHALBI FOULADBAZOU, individually and on behalf of all others similarly situated, Plaintiff v. MACY'S INC. D/B/A BLOOMINGDALE'S and FORTY CARROTS; and DOES 1through 50, inclusive, Defendants, Case No. 30-2019-01075572-CU-OE-CXC (Cal. Super., Orange Cty., June 10, 2019) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff Ghalbi Fouladbazou was employed by the Defendants as sales associate. Macy's, Inc., an omnichannel retail organization, operates stores, Websites, and mobile applications. The company was formerly known as Federated Department Stores, Inc. and changed its name to Macy's, Inc. in June 2007. Macy's, Inc. was founded in 1830 and is based in Cincinnati, Ohio. [BN] The Plaintiff is represented by: James R. Hawkins, Esq. Isandra Fernandez, Esq. JAMES HAWKINS APLC 9880 Research Drive, Suite 200 Irvine, CA 92618 Telephone: (949) 387-7200 Facsimile: (949) 387-6676 - and - Sean S. Vahdat, Esq. LAW OFFICES OF SEAN S. VAHDAT & ASSOCIATES, APLC 1224 East Katella Avenue, Suite 211 Orange, CA 92867 Telephone: (949) 496-2011 Facsimile: (949) 313-7088 E-mail: sean@vahdatlaw.com METRO BANK: Kahn Swick Files Securities Fraud Class Suit -------------------------------------------------------- Kahn Swick & Foti, LLC ("KSF") and KSF partner, former Attorney General of Louisiana, Charles C. Foti, Jr., remind investors that they have until July 29, 2019 to file lead plaintiff applications in a securities class action lawsuit against Metro Bank PLC (MBNKF), if they purchased the Company's securities between March 6, 2018 and May 1, 2019, inclusive (the "Class Period"). This action is pending in the United States District Court for the Central District of California. What You May Do If you purchased securities of Metro Bank and would like to discuss your legal rights and how this case might affect your right to recover for your economic loss, you may, without obligation or cost to you, contact KSF Managing Partner Lewis Kahn toll-free at 1-877-515-1850 or via email (lewis.kahn@ksfcounsel.com), or visit https://www.ksfcounsel.com/cases/otc-mbnkf/ to learn more. To serve as a lead plaintiff in this class action, you must petition the Court by July 29, 2019. About the Lawsuit Metro Bank and certain of its executives are charged with failing to disclose material information during the Class Period, violating federal securities laws. On January 23, 2019, the Company disclosed that it had misclassified the risk of a substantial number of its commercial loans. On May 1, 2019, the Company revealed its 1Q2019 results including a 3.6% reduction in deposits, the loss of a "small number of large commercial and partnership customers," lowered growth expectations for the year, and a 50% decline in profit from a year earlier. On this news, the price of Metro Bank's shares plummeted. The case is Amann v. Metro Bank Plc, 19-cv-4739. Contact: Lewis Kahn, Esq. Managing Partner Kahn Swick & Foti, LLC 1100 Poydras St., Suite 3200 New Orleans, LA 70163 Phone: 1-877-515-1850 Website: www.ksfcounsel.com. Email: lewis.kahn@ksfcounsel.com [GN] MICHAEL KORS (USA): Faces Chu ADA Suit in N.D. California --------------------------------------------------------- KYOHAK CHU, individually and on behalf of all others similarly situated, Plaintiff v. MICHAEL KORS (USA), INC., Defendant, Case No. 4:19-cv-03286-DMR (N.D. Cal., June 11, 2019) alleges violation of the Americans With Disabilities Act. The case is assigned to Magistrate Judge Donna M. Ryu. Michael Kors (USA), Inc. designs and sells apparel, accessories, and footwear. The Company offers shirts, t-shirts, sweaters, jackets, pants, suits and blazers, shorts, underwear, dresses, skirts, shorts, and swimwear for men and women. Michael Kors serves customers worldwide. [BN] The Plaintiff is represented by: Bobby Saadian, Esq. Thiago Merlini Coelho, Esq. WILSHIRE LAW FIRM 3055 Wilshire Boulevard 12th Floor Los Angeles, CA 90010 Telephone: (213) 381-9988 Facsimile: (213) 381-9989 E-mail: bobby@wilshirelawfirm.com thiago@wilshirelawfirm.com MICHAEL T. ANGELO: Fla. App. Flips Class Certification in Parker ---------------------------------------------------------------- The District Court of Appeal of Florida, First District, issued an Opinion reversing the District Court's Order granting Plaintiffs' Motion for Class Certification in the case captioned MICHAEL T. ANGELO d/b/a Orange Park Auto Mall, Appellant, v. TIMOTHY PARKER, individually and on behalf of those similarly situated, Appellee. No. 1D18-1304. (Fla. App.). Parker purchased a vehicle from the Dealership and was charged $420 for title and registration fees. The sales contract signed by Parker included a disclosure that the fees were estimated at the time of sale but was silent about any overage. Eleven days after the sale, the Dealership paid $403.90 to the Department of Highway Safety and Motor Vehicles (DHSMV) for the title and registration fees. The Dealership did not refund Parker the difference between the estimate and the amount paid to the DHSMV ($16.10).Parker sued the Dealership alleging that it violated FDUTPA by not refunding the difference between the estimated title and registration fees and the amount paid to the DHSMV. The Dealership argues that the trial court abused its discretion in certifying the class because Parker did not allege a legally sufficient FDUTPA claim, preventing the trial court from conducting the rigorous analysis required before ordering class certification. He later amended the complaint to assert claims on behalf of a class of consumers defined as: (a) All persons or entities with Florida addresses at the time of the transaction, who purchased or leased a vehicle from the Dealership (b) during the four-year period prior to the filing of his action through class certification (c) and were charged and paid a title and registration fee greater than the actual title and registration cost and (d) the difference between the amount charged and the actual title cost was never refunded. The Court reviews an order granting class certification for an abuse of discretion.Before certifying a class, a trial court must perform a rigorous analysis of the claims asserted on behalf of the class because certification expands the dimensions of the lawsuit and commits the court and the parties to additional labor over and above a traditional lawsuit. The Dealership argues that the trial court erred in granting class certification because: (1) it did not perform a rigorous analysis of the substance of Parker's FDUTPA claims; and (2) it failed to make factual findings in the class certification order. As stated earlier, two FDUTPA counts were asserted on behalf of the class: one alleging a general violation of the Act, and the other brought under section 501.203(3)(c) Florida Statutes. Only the count brought under the general provision of FDUTPA remains at issue in this appeal. To state a legally sufficient claim under FDUTPA, a plaintiff must allege: (1) a deceptive act or unfair practice; (2) causation and (3) actual damages. A deceptive practice is one likely to mislead consumers acting reasonably in the circumstances, to the consumers' detriment. The class complaint alleged that the Dealership violated FDUTPA by: (1) overestimating the cost of title and registration fees and (2) failing to refund the difference between the amount charged to class members and the amount paid to the DHSMV. Parker also concedes that the title and registration fees charged to purchasers were based on specific information provided by each individual purchaser, such as their date of birth and whether the purchaser was transferring a title. Parker further acknowledges that he had no expectation of receiving a refund for any overpayment. But despite the express disclosure that the fees were estimated, that the estimates were based on individual-specific information, and that he did not expect a refund of any overpayment, Parker maintains that the mere existence of the overcharge is enough to state a claim under FDUTPA. The Court disagrees. Standing alone, the mere existence of an overcharge does not establish a violation of FDUTPA. Instead, to state a claim under FDUTPA, Parker had to allege that the Dealership acted in a way that was unscrupulous, oppressive, unethical, or immoral or in a way likely to mislead the class members to their detriment. Parker alleged no deceptive or unfair acts by the Dealership. Without a legally sufficient claim under the substantive law applicable to this case, the court could not determine whether Parker's complaint satisfied the requirements of commonality, typicality, numerosity, and adequacy. Nor could the court perform the rigorous analysis required by rule 1.220. The court could not assess commonality whether Parker's claim arose from the same practices or course of conduct that gave rise to the claims of the other class members. The court could not determine typicality whether there was a strong similarity in the legal theories between Parker's claims and the claims of the other class members. Nor could the court evaluate the number of people in the class or whether counsel was adequate. Thus, we hold that the court erred in certifying the class because Parker never alleged a facially sufficient violation of FDUTPA. The court erred further when it failed to make factual findings to support its conclusion that Parker satisfied each of the four prerequisites for certification. Because the trial court did not perform a rigorous analysis of the substance of Parker's FDUTPA claims and failed to make sufficient factual findings in the class certification order, the Court reverses the order granting class certification. A full-text copy of the Fla. App.'s June 20, 2019 Opinion is available at https://tinyurl.com/y2lnnaoz from Leagle.com. Michael Fox Orr -- knm@dawsonorr.com -- and Jeremy M. Paul -- jmp@dawsonorr.com -- of Dawson Orr, Professional Association, Jacksonville, for Appellant. Roger D. Mason, II, and Elizabeth A. Buchwalter, of Roger D. Mason, II, P.A., 5135 W Cypress St Suite 105, Tampa, FL 33607, for Appellee. MONARCH RECOVERY: Jones et al Sue over Misleading Collection Letter ------------------------------------------------------------------- A class action complaint has been filed against Monarch Recovery Management, Inc. for alleged violations of the Fair Debt Collection Practices. The case is captioned Ila Jones and Malik Johnson, individually andhttps://writenewsnow.com/wp-admin/profile.php on behalf of all others, Plaintiffs, vs. Monarch Recovery Management, Inc., Defendant, Case No. 1:19-cv-03814 (E.D.N.Y., July 1, 2019). Plaintiffs allege that the Defendant sent a debt collection letter that failed to instruct the consumer to which of the multiple addresses provided requests for the name of the original creditor must be sent. In addition, Plaintiffs contend that the multiple addresses overshadow the disclosure of the consumer's right to receive verification of the debt or a copy of a judgment against the consumer provided by 15 U.S.C. Section 1692g(a)(4). Monarch Recovery Management, Inc. is a Pennsylvania corporation headquartered in Bensalem, Pennsylvania. As a debt collection agency, the company regularly collects or attempts to collect debts asserted to be owed to others. [BN] The Plaintiffs are represented by: Craig B. Sanders, Esq. BARSHAY SANDERS, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Telephone: (516) 203-7600 Facsimile: (516) 706-5055 E-mail: csanders@barshaysanders.com MONCTON HOSPITAL: Nurse Refute Allegations in Class Action ---------------------------------------------------------- CTV Atlantic reports that a former labour and delivery nurse at The Moncton Hospital accused of inappropriately administering the labour-inducing drug Oxytocin without consent has denied any wrongdoing. Horizon Health has also denied the allegations. A sworn statement of defence, filed in response to a class-action lawsuit launched by a Moncton mother on April 11, states former nurse Nicole Ruest ". . . did not engage in any course of conduct intended to harm the plaintiff or any proposed class member if the plaintiff or any proposed class member did suffer injuries or damages as alleged, any such injuries or damages were not caused by Ms. Ruest." In documents filed with the court, Horizon Health states: ". . .the defendant hospital admits that its physicians were becoming concerned over the increasing number of emergency caesarean sections and were attempting to determine the reason for the increase in the number of emergency caesarean sections." A class-action lawsuit was filed by Jayde Scott, a mother who was forced to have her twins in an emergency C-section. The hospital admits Scott had an emergency C-section, and that Ruest was employed as a registered nurse in the labour and delivery unit of the hospital, but denies all other allegations. The lawsuit has not been certified and the allegations have not been tested in court. [GN] MONSANTO CO: Carbone Lawyers Files Roundup Weedkiller Lawsuit ------------------------------------------------------------- John Kang, writing for The Asian Lawyer, reports that in light of three consecutive verdicts totaling $2.2 billion in the U.S linking the weedkiller Roundup to cancer, the Australian firm Carbone Lawyers has filed a lawsuit against Roundup manufacturer Monsanto Co., while the Victoria State Government is launching an investigation into the use of glyphosate, the most commonly used herbicide globally and the main ingredient in Roundup. Melbourne-based Carbone Lawyers filed a lawsuit in the Supreme Court of Victoria against Monsanto on June 3 on behalf of self-employed gardener Michael Ogalirolo, 54, who is seeking damages against the company for his long-term use of Roundup. Ogalirolo claims the glyphosate-based weedkiller caused his blood cancer, non-Hodgkin's lymphoma, which was diagnosed in 2011 and forced him to retire in 2015.* Two other Australian firms are considering filing lawsuits against Monsanto. Sydney-based LHD Lawyers is considering a class action against Monsanto, which German pharmaceutical giant Bayer A.G. acquired in June last year for $63 billion, while local media reports say Melbourne-based Maurice Blackburn is evaluating individual cases. Meanwhile, the Australian State of Victoria is investigating the use of glyphosate, including by Roundup, across its public land management, according to Melbourne-based newspaper The Age. The investigation, which is being conducted by Victoria's Department of Environment, Land, Water and Planning, is expected to last six weeks. It is the first by an Australian state government in the wake of a series of verdicts in U.S. courts, according to the newspaper. The developments come about three weeks after Monsanto was hit with a $2.05 billion punitive damages verdict by a jury in Alameda County Superior Court in Oakland, California – the largest U.S. jury verdict so far against the company over glyphosate's link to the same kind of blood cancer with the plaintiff in Australia. Previously, Monsanto was hit initially with a $289 million verdict in August, though that was reduced to $78.5 million; and $80 million in March, both in San Francisco.* Bayer said it will appeal the $2.05 billion verdict. Globally, a number of countries and jurisdictions have either banned the use of glyphosate or have restricted its use. These include Belgium, France, Italy, Canada, Argentina, Colombia, the Czech Republic and Denmark. [GN] MONSANTO COMPANY: Austin et al Suit Transferred to N.D. Cal. ------------------------------------------------------------ The case, BRENDA J. AUSTIN and GARY W. AUSTIN, Plaintiffs, v. MONSANTO COMPANY, Defendant, Case No. 4:19-cv-01034 (Filed on April 29, 2019), was transferred from the United States District Court for the Eastern District of Missouri to the United States District Court for the Northern District of California on June 19, 2019. The case is now assigned to Hon. Judge Vince Chhabria. It is opened in the United States District Court for the Northern District of California as Case No. 3:19-cv-03540-VC pursuant to the Conditional Transfer Order 5 from the Judicial Panel on Multidistrict Litigation. It is then consolidated to the lead case, 3:16-md-02741-VC (IN RE: ROUNDUP PRODUCTS LIABILITY LITIGATION). In this complaint, Plaintiffs seeks redress for the damages they suffered as a direct and proximate result of 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, containing the active ingredient glyphosate. Monsanto Company is a Delaware corporation, Missouri Secretary of State Charter No. F00488018, with a principal place of business in St. Louis, Missouri. It is a multinational agricultural biotechnology corporation that is regarded as the world's leading producer of glyphosate. [BN] The Plaintiffs are represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. One Metropolitan Square 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MOVE INC: Court Grants NAR's Bid to Dismiss Silverman TCPA Suit --------------------------------------------------------------- The United States District Court for the Northern District of California, San Jose Division, issued an Order granting Defendant National Association of Realtors' Motion to Dismiss for Lack of Personal Jurisdiction and Failure to State a Claim in the case captioned COURTNEY SILVERMAN, Plaintiff, v. MOVE INC., et al., Defendants. Case No. 18-cv-05919-BLF. (N.D. Cal.) In this putative class action, Plaintiff Courtney Silverman alleges a single cause of action against Defendants NAR and Move for advertising text messages that violated the Telephone Consumer Protection Act (TCPA). Move and NAR, jointly and as agents of one another, allegedly sent unsolicited advertising text messages to real estate professionals, including Plaintiff and the putative class, who were members of NAR, in order to promote Realtor.com and its services. NAR moves to dismiss the Plaintiff's claim because this Court does not have personal jurisdiction over NAR and because the Plaintiff fails to state a claim against NAR. The Plaintiff is a citizen and resident of Florida and a member of NAR. NAR is an Illinois corporation. NAR's website shows that its home office is in Chicago, IL. Realtor.com has its headquarters in California.NAR provides numerous resources, services, and benefits for its members nationwide through Realtor.com. NAR allegedly transacts substantial business in, and has maintained continuous and systematic contacts in and with, California generally and specifically relating to marketing its official moniker, website, REALTOR marketing hub, and brand, Realtor.com' in and from California, from which the text messages at issue were sent. This business includes NAR's strategic partnership with Move, starting with the 1996 perpetual marketing agreement (1996 Agreement) that sets forth the relationship between the parties. The 1996 Agreement states that California law governs it and that the venue for disputes under it shall be California. The 1996 Agreement also provides that NAR has ultimate authority to approve the advertising plan; that NAR may audit the marketing process; that Move must open its records to NAR; that Move must prepare a business plan related to its efforts on NAR's behalf; and other related oversight provisions. The Plaintiff argues that the Court has general personal jurisdiction over NAR; she does not argue that the Court has specific jurisdiction over NAR. General Jurisdiction Law The Supreme Court has recognized two types of personal jurisdiction: (1) general (or all-purpose) jurisdiction and (2) specific (or case-specific) jurisdiction. General jurisdiction is based on certain limited affiliations that the defendant has with the forum state. A court may exercise general jurisdiction only when the defendant's affiliations with the State are so 'continuous and systematic' as to render [the defendant] essentially at home in the forum State. In the paradigmatic circumstance for exercising general jurisdiction, a corporate defendant is incorporated or has its principal place of business in the forum state. The Plaintiff has failed to plead or submit facts sufficient to show that NAR is at home in California. First, NAR is neither incorporated nor has its principal place of business in California. Plaintiff must show that this is the exceptional case in which a corporate defendant's contacts with a state in which it is not incorporated and does not have its headquarters are so continuous and systematic as to render the state the one clear and certain forum in which a corporate defendant may be sued on any and all claims. The Court finds that the Plaintiff does not satisfy this exacting standard. NAR's contacts with California can fairly be grouped into two categories: (1) its contacts with Move/Realtor.com; and (2) its contacts with its members and other business operations in California. Neither category, either independently or combined, is sufficiently continuous and systematic as to render NAR at home in California. As to Move and Realtor.com, the Plaintiff has not demonstrated that Realtor.com is such a substantial portion of NAR's business as to render NAR at home in California. Though Realtor.com is headquartered in California, through the site NAR provides services to its members throughout the country. Moreover, NAR submits evidence that it does not operate the Realtor.com site. Move is independently responsible for operating the site. Though NAR has ultimate authority over the site and the advertising plan, this relationship appears to be no different than any contractual relationship in which one party hires another to perform certain of its operations. Such a relationship is not as extensive as a subsidiary/parent relationship, which on its own would be insufficient to show general jurisdiction. Thus, the Court finds that the Plaintiff has not demonstrated that NAR is subject to personal jurisdiction in California. Because the Plaintiff was provided leave to amend on this issue, the Court concludes that any future amendments would be futile. NAR's motion is granted with prejudice to refiling the claim in California. The Plaintiff may refile her claim in a district that has personal jurisdiction over NAR. A full-text copy of the District Court's June 24, 2019 Order is available at https://tinyurl.com/y3elbtrg from Leagle.com. Courtney Silverman, individually and on behalf of all others similarly situated, Plaintiff, represented by Candace Alexandra Phillips, Zebersky Payne Shaw Lewenz, pro hac vice, Edward Herbert Zebersky, Zebersky Payne LLP, pro hac vice, Jordan Alexander Shaw, Zebersky Payne LLP, pro hac vice, Mark Stanley Fistos, Zebersky Payne LLP, 110 SE 6th St Ste 2150, Fort Lauderdale, FL 33301-5016, pro hac vice, Sarah L. Hennessy -- sarah@fhattorneys.com -- FLAHERTY HENNESSY, LLP & Sarah Lynn Gough, MILSTEIN ADELMAN, LLP, 8055 W. Manchester Ave., Suite 420, Playa Del Rey, CA 90293 Move Inc, a California Corporation & National Association of Realtors, an Illinois Corporation, Defendants, represented by Rebecca McLemore Lamberth -- rmlamberth@duanemorris.com -- Duane Morris LLP, pro hac vice, Robin L. McGrath -- rlmcgrath@duanemorris.com -- Duane Morris LLP, pro hac vice, Kenneth Bradley Franklin -- KBFranklin@duanemorris.com -- Duane Morris LLP, pro hac vice & Michael Louis Fox -- MLFox@duanemorris.com -- Duane Morris LLP. NAT'L ASSOCIATION: Class Action to Impact Traditional Brokerages ---------------------------------------------------------------- R.A. Schuetz, writing for Houston Chronicle, reports that for the average Houston home, priced at $310,700, real estate agent commissions cost $18,600. If the same deal had closed in London, the homeseller would have only paid agents about $3,700. The reasons for the difference are at the center of a class-action suit that could dramatically change the way homes are bought and sold in the United States. The case, brought by a Minnesota homeowner, seeks to strike down the standard practice of agents splitting commissions. If successful, the suit would potentially save individual home sellers thousands of dollars in commissions, but it would also cut the earnings of real estate agents across the country -- including some 37,000 in the Houston area -- and put more pressure on traditional brokerages, already contending with a host of discount and online competitors. If defeated or dismissed, as the National Association of Realtors has requested, it would mean business as usual for years to come and, perhaps, pose a stumbling block for startup companies seeking to shake up the real estate business through the use of technology. The case, brought by lead plaintiff Christopher Moehrl, argues that if not for rules put in place by the National Association of Realtors and used by local groups including the Houston Association of Realtors, commissions in the U.S. would be similar to those in the U.K., where sellers only pay the agent who lists the home, not the agent who helps the buyer make the purchase. In the U.K., the average listing agent fee has been falling steadily since 2011, according to a survey by the homeseller website The Advisory, sinking to a mere 1.18 percent in 2018. NAR, which is being sued along with Austin-based Keller Williams Realty, Re/Max Holdings, Homeservices of America and Realogy Holdings (owner of Century 21, Coldwell Banker, Sotheby's International Realty and other household-name brokerages), argued the complaint characterized its rules incorrectly. On Wednesday, a Federal Judge in Illinois allowed Moehrl to file an amended complaint by June 14. Now both sides are retrenching, the Department of Justice has opened its own investigation and the property data company CoreLogic has been dragged into the fray. "The claims are devoid of accuracy," said Mantill Williams, vice president of public relations at the National Association of Realtors. "They withdrew their complaint and are going to regroup to try to salvage what we see as a baseless claim." Expanded inquiry Court filings also showed the Department of Justice has opened an investigation into real estate agent fees. In the investigation, which is separate from the Moehrl case, the DOJ has demanded information from CoreLogic, which provides many real estate agents with platforms where they can share listings, known as multiple listing services. The inquiry centers on whether or not multiple listing services prevent competition in the real estate agent fee structure. Multiple listing services are drawing scrutiny for their central role in negotiating these fees. Homesellers in the United States pay both the listing agent and the buyer's agent. And when listing agents add homes into the National Association of Realtors' listing service -- which holds the majority of listings and often syndicates it to other real estate search sites such as Zillow and Realtor.com -- they must say upfront how much they're offering to pay the agent whose client buys the home. Agents can negotiate that offer as the transaction progresses. The commission on the sale of a home is usually 6 percent, which is traditionally split between the agents for the buyer and seller. As a result, Moehrl alleges buyers' agents have little motivation to sell their clients on homes that will offer them less than the industry standard of 3 percent. The Department of Justice has requested information regarding whether buyer agents can sort listings by fees paid. By the numbers Regardless of whether that is the case, Alex Doubet, chief executive of the discount brokerage Door, said he'd seen the system's upward pressure on pricing firsthand. When the company started in 2015, it listed comparable homes priced at the same price in the same gated community at the same time. One said it would pay the buyer's agent the standard 3 percent, while the other offered 2 percent. "The 2 percent one was getting half the showings than the 3 percent one was," Doubet said. "The seller finally agreed to offer 3 percent, and then the houses went one for one, equal showings . . . If you're a seller and you don't offer a 3 percent buyer's fee, your listing gets discriminated against." Others have found success in circumventing the multiple listing services altogether. When Houston resident Larry Lanclos was looking to sell his home, he searched for a way around paying the buyer's fee. But Lanclos' real estate agent friends who offered to list his home at cost said he would have to pay 3 percent to the buyer's agent, even if he found a buyer himself. "It kind of gets into a Catch-22," he said. "You're having to give money to someone who really didn't do anything -- they're just called in by the Realtor who is representing you." He ended up going with REX, a discount brokerage charging only 2 percent to sell a home. The price is made possible by not paying the buyer's agent -- buyers have the option of having a salaried REX agent guide them through the transaction for free or paying for an outside agent themselves. But not making the buyer's agent an offer also means that the listing cannot be advertised on multiple listing services, such as HAR.com and Realtor.com. Instead, REX's homes can only be advertised directly to customers or on websites such as Zillow and Trulia, which only receive part of their listings from multiple listing services. Jonathan Friedland, the company's head of communications, said such restrictions are worth it in order to offer lower fees. "If you're in the (Multiple Listing Service) you're bound to live within these rules. That's what makes the MLS so problematic for anyone who is really trying to innovate in the industry," he said. "If you don't abide by some of these rules, you are kicked out." Kara Biggs found Lanclos' home through Zillow and closed four weeks after it went on the market. [GN] NATIONAL INDEMNITY: 8th Circuit Appeal Initiated in Muri FLSA Suit ------------------------------------------------------------------ Plaintiff Marc J. Muri filed an appeal from the District Court's Memorandum & Order and Judgment both dated June 18, 2019, entered in the lawsuit entitled Marc Muri v. National Indemnity Company, Case No. 8:17-cv-00178-JMG, in the U.S. District Court for the District of Nebraska - Omaha. The lawsuit is brought over alleged claims pursuant to the Fair Labor Standards Act. As previously reported in the Class Action Reporter, the Plaintiff sought certification of a class defined as: All persons who were participants in or beneficiaries of the Plan at any time from January 1, 2015 up to and including the date of judgment in this action and whose Plan accounts included investments in the Fund. The appellate case is captioned as Marc Muri v. National Indemnity Company, Case No. 19-2408, in the United States Court of Appeals for the Eighth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appendix is due on August 12, 2019; -- Brief of Appellant Marc J. Muri is due on August 12, 2019; -- Appellee brief is due 30 days from the date the court issues the Notice of Docket Activity filing the brief of appellant; and -- Appellant reply brief is due 21 days from the date the court issues the Notice of Docket Activity filing the appellee brief.[BN] Plaintiff-Appellant Marc J. Muri, individually and on behalf of all others similarly situated, is represented by: Samuel E. Bonderoff, Esq. Edward H. Glenn, Esq. James Ostaszewski, Esq. Justin Sauerwald, Esq. Jacob H. Zamansky, Esq. ZAMANSKY, LLC 50 Broadway, 32nd Floor New York, NY 10004 Telephone: (212) 742-1414 Facsimile: (212) 742-1177 E-mail: samuel@zamansky.com eglenn@zamansky.com james@zamansky.com justin@zamansky.com jake@zamansky.com - and - Brian K. Matise, Esq. BURG SIMPSON ELDREDGE HERSH & JARDINE, P.C. 40 Inverness Drive East Englewood, CO 80112-2866 Telephone: (303) 792-5595 Facsimile: (303) 708-0527 E-mail: BMatise@burgsimpson.com Defendant-Appellee National Indemnity Company is represented by: Paul J. Ondrasik, Jr., Esq. Eric G. Serron, Esq. Andrew Sloniewsky, Esq. STEPTOE & JOHNSON LLP 1330 Connecticut Avenue, N.W. Washington, DC 20036-0000 Telephone: (202) 429-3000 Facsimile: (202) 429-3902 E-mail: pondrasik@steptoe.com eserron@steptoe.com asloniewsky@steptoe.com - and - Shawn D. Renner, Esq. CLINE WILLIAMS WRIGHT JOHNSON & OLDFATHER, L.L.P. 1900 U.S. Bank Building 233 S. 13th Street Lincoln, NE 68508-0000 Telephone: (402) 474-6900 E-mail: srenner@clinewilliams.com - and - Tara A. Stingley, Esq. CLINE WILLIAMS WRIGHT JOHNSON & OLDFATHER, L.L.P. Sterling Ridge, Suite 200 12910 Pierce Street Omaha, NE 68144-1105 Telephone: (402) 397-1700 E-mail: tstingley@clinewilliams.com NATIONWIDE LIFE: Brown Moves for Certification of Two Classes ------------------------------------------------------------- Theresa Brown, one of the Plaintiffs in the lawsuit titled THERESA BROWN, et al. v. NATIONWIDE LIFE INSURANCE COMPANY, et al., Case No. 2:17-cv-00558-EAS-CMV (S.D. Ohio), moves the Court to certify a plaintiff class and a defendant class described as: * Plaintiff Class, represented by Theresa Brown: All participant-directed individual 401(k) account plans that, at any time from October 1, 2014 through the date of judgment (the "Class Period"), that (1) have total Plan assets of less than $10 million; (2) paid Nationwide for recordkeeping and other administrative services through the Nationwide Retirement Flexible Advantage Retirement Plans Program; and (3) paid recordkeeping and administrative service fees to Nationwide in excess of $64 per participant. Excluded from the Plaintiff Class are employees of Plaintiff's law firms; and * Defendant Class, represented by Defendant Andrus Wagstaff, P.C.: All sponsors of participant-directed individual 401(k) account plans that, at any time from October 1, 2014 through the date of judgment (the "Class Period"), (1) have total Plan assets of less than $10 million; (2) entered into Program Agreements with Nationwide through the Nationwide Retirement Flexible Advantage Retirement Plans Program to provide recordkeeping and administrative services for their companies' defined contribution retirement plans; and (3) paid recordkeeping and administrative service fees to Nationwide in excess of $64 per participant. The Plaintiff also asks to be appointed as the Plaintiff Class representative. The Plaintiff further asks the Court to appoint Andrus Wagstaff, Esq., as the Defendant Class representative; Paul R. Wood, Esq., and Keith R. Scranton, Esq., of Franklin D. Azar & Associates and John Smalley, Esq., of Dyer, Garofalo, Mann & Schultz as the Plaintiff Class' counsel; and Joseph Lyon, Esq., of the Lyon Law Firm as the Defendant Class' counsel.[CC] The Plaintiff is represented by: John A. Smalley, Esq. DYER, GAROFALO, MANN & SCHULTZ 131 N. Ludlow Street, Suite 1400 Dayton, OH 45402 Telephone: (937) 223-8888 Facsimile: (937) 226-9436 E-mail: jsmalley@dgmslaw.com - and - Keith Scranton, Esq. Paul R. Wood, Esq. FRANKLIN D. AZAR & ASSOCS. 14426 East Evans Ave. Aurora, CO 80014 Telephone: (303) 757-3300 Facsimile: (303) 757-3206 E-mail: scrantonk@fdazar.com woodp@fdazar.com Defendants Nationwide, et al., are represented by: Brian. D. Boyle, Esq. Shannon M. Barrett, Esq. Michael McCarthy, Esq. O'MELVENY & MYERS LLP 1625 Eye Street, NW Washington, DC 2006-4001 Telephone: (202) 383-5327 E-mail: bboyle@omm.com sbarrett@omm.com mmccarthy@omm.com - and - Michael H. Carpenter, Esq. CARPENTER LIPPS & LELAND LLP 280 Plaza, Suite 1300 280 N. High Street Columbus, OH 43215 Telephone: (614) 365-4100 E-mail: carpenter@carpenterlipps.com Defendant Andrus Wagstaff is represented by: Joseph M. Lyon, Esq. THE LYON FIRM 2754 Erie Drive Cincinnati, OH 45208 Telephone: (513) 281-2333 E-mail: jlyon@thelyonfirm.com NIANTIC: Submits Revised Pokemon Go Settlement for Approval ----------------------------------------------------------- Courthouse News Service reported that a revised class action settlement over Pokemon Go's placing of digital targets on private property was submitted on June 13 for approval by a federal judge in California. The revised settlement includes a procedure that allows future property owners to contact game maker Niantic about removing the targets from their property, as well $4 million for plaintiffs' attorney fees and costs. A copy of the Plaintiffs' Motion for Final Approval of Settlement is available at: https://is.gd/9XanHB NIO INC: Faces Donlon Suit over 50% Drop in Share Price ------------------------------------------------------- MICHAEL DONLON, individually and on behalf of all others similarly situated, Plaintiff, v. NIO INC.; BIN LI; LOUIS T. HSIEH; LIHONG QIN; PADMASREE WARRIOR; TIAN CHENG; XIANG LI; LIANG LI; HAI WU; YAQIN ZHANG; XIANGPING ZHONG; ZHAOHUI LI; DENNY TING BUN LEE; JAMES GORDON MITCHELL; MORGAN STANLEY & CO. LLC; GOLDMAN SACHS (ASIA) L.L.C.; J.P. MORGAN SECURITIES LLC; MERRILL LYNCH; PIERCE; FENNER & SMITH INCORPORATED; DEUTSCHE BANK SECURITIES INC.; CITIGROUP GLOBAL MARKETS INC.; CREDIT SUISSE SECURITIES (USA) LLC; and UBS SECURITIES LLC, Defendants, Case No. 653422/2019 (N.Y. Sup., New York Cty., June 11, 2019) is a class action on behalf of all persons or entities who purchased NIO American Depositary Shares ("ADSs") in or traceable to the Company's September 12, 2018 initial public offering (the "IPO"), seeking to pursue remedies under the Securities Act of 1933. According to the complaint, on August 13, 2018, the Company filed with the SEC a registration statement on Form F-1 for the IPO, which, after several amendments, was declared effective on September 11, 2018. The next day, on September 12, 2018, the Company filed a Prospectus for the IPO on Form 424B4, which incorporated and formed part of the Registration Statement. The Registration Statement was used to sell to the investing public 184 million NIO ADSs, including the exercise of the underwriters' overallotment option, representing 184 million NIO Class A ordinary shares, at $6.26 per ADS for more than $1.15 billion in gross offering proceeds. The Plaintiff alleges that the Registration Statement failed to disclose the following adverse facts that existed at the time of the IPO: (a) that the ES8 was suffering from quality-control defects in the production and design of the vehicles, including operating system malfunctions and driving ranges that were up to 30% lower than those advertised in the Registration Statement; (b) that, as a result, NIO was subject to reputational harm and the loss of customers to competitors, a fact exacerbated by the "premium" price tag of its vehicles; (c) that the planned reduction in subsidies by the Chinese government, set to begin in 2019, had accelerated and inflated 2018 ES8 vehicle sales, as price-sensitive consumers sought to lock in purchases before the subsidy reductions took place; (d) that NIO was not in a position to complete its touted Shanghai manufacturing plant, and thus would not enjoy the cost, control and EV credit advantages such a facility would provide, and instead the Company needed to continue and expand its dependence on JAC for the manufacture of its vehicles; (e) that the Chinese premium EV market was subject to far greater competitive threats than represented in the Registration Statement; and (f) that, as a result of (a)-(e), NIO would suffer adverse sales trends following the IPO, was not in a position to capitalize on China's fast-growing premium EV market, and was poised to lose market share to its competitors. On May 28, 2019, NIO issued a press release announcing its results for the quarter ended March 31, 2019. The Company announced that it had slightly exceeded the guidance provided in the FY 2018 Release, but that vehicle deliveries for the quarter had still decreased 50% from the fourth quarter of 2018. The Company also stated that April 2019 deliveries totaled only 1,124 vehicles. In addition, the Company stated that it expected the slowdown to accelerate in the second quarter of 2019, as vehicle deliveries compared to the already abysmal first quarter 2019 numbers declined between 20% and 30%. Among the factors cited by the Company for the slowdown was increased competition, notwithstanding representations in the Registration Statement that NIO would experience minimal competition following the IPO. The Company stated that it continued to suffer massive losses, having suffered net losses attributable to ordinary shareholders of $395 million during the quarter, and had cash and cash equivalents of only $738 million as of March 31, 2019, despite generating $1.8 billion in gross proceeds in the IPO and the Notes Offering. On June 3, 2019, NIO ADSs closed at $2.96 per ADS. This price represented a greater than 50% decline from the price at which NIO ADSs had been sold to the investing public less than nine months earlier in the IPO. NIO Inc. manufactures and sells automobiles. The Company offers electric vehicles and parts, as well as provides battery charging services. NIO serves customers worldwide. [BN] The Plaintiff is represented by: Samuel H. Rudman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631)367—7100 Facsimile: (631)367-1173 E-mail: srudman@rgrdlaw.com - and - James I. Jaconette, Esq. Brian E. Cochran, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92 1 01 Telephone: (619) 231-1058 Facsimile: (619) 231-7423 E-mail: jamesj@rgrdlaw.com bcochran@rgrdlaw.com - and - Michael I. Fistel, Jr. JOHNSON FISTEL, LLP 40 Powder Springs Street Marietta, GA 30064 Telephone: (470) 632-6000 Facsimile: (770) 200-3 101 E-mail: michaelf@johnsonfistel.com NIPPON YUSEN: Class Action Over Alleged Price-Fixing Can Proceed ---------------------------------------------------------------- Tom Zytaruk, writing for Surrey Now-Leader, reports that a class-action lawsuit seeking compensation related to an alleged price-fixing conspiracy that resulted in British Columbian being overcharged for vehicles has been given the green light to proceed from the Court of Appeal. Justice Mary Saunders, in a May 29 judgment in Vancouver related to Darren Ewert versus Nippon Yusen Kaushiki Kaisha et al, overturned the decision of a lower court judge who declined to certify the litigation as class action under the Class Proceedings Act after finding Ewert's expert failed to determine if data needed to assess if an overcharge had been passed through to indirect purchasers was available. "I would allow the appeal in part and certify the action as a class proceeding in respect of the direct and indirect purchasers of the vehicle carrier services provided by the defendants during the class period," Saunders decided, with Justices Harvey Groberman and John Hunter concurring. The appeal court found that the lower court judge erred by imposing a standard to identify data that exceeded statutory requirements. The litigation centres on the allegation of a price-fixing conspiracy of marine shippers who bring automobiles and other vehicles across the oceans to Canada. Ewert claims this resulted in higher costs to himself and others who bought vehicles in B.C. "To succeed in the litigation," Saunders noted, "he will have to establish that the conspiracy existed, that it resulted in excess shipping charges, and that those charges were passed on to him and to others in a like position. He seeks to certify the action as a class action." The defendants are vehicle carriers that transport cars, trucks and other equipment by ocean to Canada, including Vancouver, using specialized cargo ships known as roll on/roll off vessels. Ewert claims that between Feb. 1, 1997 and Dec. 31, 2012 they made illegal price-fixing agreements that artificially inflated the price of transporting the vehicles. "The plaintiff's theory is that as a consequence of these price-fixing agreements, the cost of transporting these vehicles was artificially and unreasonably enhanced, and that the extra cost was passed on to purchasers of the vehicles resulting in an overcharge for those vehicles," Saunders explained. "He seeks to bring a class proceeding to recover for himself and other similarly situated persons the loss caused by the alleged conspiracy, or a proportionate share of the benefits realized by the defendants as a result of the alleged conspiracy." The plaintiff also claims punitive damages. Saunders noted Ewert has led evidence that all of the defendants "have pled guilty, sought amnesty or reached compromise agreements" in the U.S. and Japan "in repect of anti-competition wrongs arising from agreements relating to international shipping services to North America." There is a long list of defendants. They are Nippon Yusen Kabushiki Kaisha, NYK Line Inc. (North America and Canada), Mitsui O.S.K. Lines Ltd., Mitsui O.S.K. Bulk Shipping (U.S.A.) Inc., Kawasaki Kisen Kaisha, Ltd., "K" Line America Inc., Eukor Car Carriers Inc., Wilh. Wilhelmsen Logistics Americas LLC, Wallenius Wilhelmsen Logistics AS, Wallenius Lines AB, WWL Vehicle Services Canada Ltd., Toyfuji Shipping Co. Ltd., Compania Sud Americana De Vapores S.A., CSAV Agency North America LLC, Nissan Motor Car Carrier Co. Ltd, World Logistics Service (USA) Inc., Hoegh Autoliners AS and Hoegh Autoliners Inc. A dozen lawyers were heard in the appeal case. The judge noted the "central issue" is whether Ewert has a "plausible methodology to prove that any excess charges were passed on to vehicle purchasers and not simply absorbed along the supply chain." [GN] NPSG GLOBAL: Court Denies Amended Discovery Plan in Reese --------------------------------------------------------- The United States District Court for the District of Nevada issued an Order denying Parties' Amended Discovery Plan in the case captioned DEVONTE REESE, Plaintiff(s), v. NPSG GLOBAL, LLC, Defendant(s). Case No. 2:19-cv-00209-JCM-NJK. (D. Nev.). This case involves both putative collective action and class action claims. Because the parties' initial discovery plan did not address those aspects of the case, the Court instructed the parties to go back to the drawing board and to present a discovery plan that did. Because the parties' positions have not been sufficiently explained, the amended discovery plan will be denied without prejudice. A second amended discovery plan must be filed by July 8, 2019. In addition to the default requirements in Local Rule 26-1, the second amended discovery plan must provide a deadline for filing a motion for conditional certification of the collective action or must provide an explanation why such a deadline should not be set. To the extent the parties continue to seek phased discovery with damages discovery to be conducted in Phase II, the second amended discovery plan must explain why phasing discovery in that manner is unlikely to result in insufficient discovery for final certification purposes and/or wasted resources in potentially revisiting final certification rulings after Phase II discovery has been completed. To the extent the parties continue to seek a scheduling order that does not set any deadlines for Phase II given the expected pendency of motion practice at the conclusion of Phase I, the second amended discovery plan must explain why it is appropriate to preemptively stay Phase II discovery in light of that anticipated motion practice.4 Lastly, the second amended discovery plan must explain whether discovery will be conducted with respect to the plaintiffs who opt-in and, if so, the scope of that discovery. Counsel must carefully review the requirements and procedures for litigating an FLSA collective action and a class action before filing the second amended discovery plan. A full-text copy of the District Court's June 20, 2019 Order is available at https://tinyurl.com/yxz4e8xd from Leagle.com. DeVonte' Reese, Plaintiff, represented by Marta D. Kurshumova, HKM Employment Attorneys, Henry Brudney, HKM Employment Attorneys LLP, pro hac vice, Jason Rittereiser, HKM Employment Attorneys LLP & Jenny L. Foley, HKM EMPLOYMENT ATTORNEYS LLP, 1785 E Sahara Ave Ste 300, Las Vegas, NV, 89104-3760 NPSG Global, LLC., Defendant, represented by Kirsten Ann Milton -- Kirsten.Milton@jacksonlewis.com -- Jackson Lewis PC, pro hac vice, Daniel Aquino -- Daniel.Aquino@jacksonlewis.com -- Jackson Lewis P.C. & Lisa A. McClane -- Lisa.McClane@jacksonlewis.com -- Jackson Lewis P.C.. OHIO HOSPICE: Spano Moves to Expand CNAs Class Definition --------------------------------------------------------- The Plaintiffs in the lawsuit captioned VIRGINIA SPANO; SUSAN MIZAK; ALL THOSE SIMILARLY SITUATED v. OHIO HOSPICE AND PALLIATIVE CARE d/b/a PARAMOUNT HOSPICE AND PALLIATIVE CARE; PARAMMOUNT HOSPICE AND PALLIATIVE CARE; JAMES J. COX, Individually, Case No. 2:17-cv-00717-CCC (W.D. Pa.), moves for class certification. According to the Motion, the Court's Order of March 5, 2019, required the Defendants to provide a list of the names and addresses of "all individuals who are employed or were employed as certified nursing assistants in defendants' hospice departments during the relevant five (5) year period." On March 20, 2019, the Court issued another Order limiting the time period involved to between April 3, 2014 and April 3, 2017 but apparently including all certified nursing assistants, not limited to hospice division certified nursing assistants. By this Motion, the Plaintiffs ask that the putative class include all Certified Nursing Assistants (CNAs) not just limited to the hospice division. The Plaintiffs also ask that the putative class be expanded to include all certified nursing assistants working on an hourly basis at the Defendants' various facilities. Hence, the Plaintiffs ask the Court to certify the class to include all Certified Nursing Assistants (CNAs) who worked for Defendants from April 3, 2014 through April 3, 2017.[CC] The Plaintiffs are represented by: Robert Davant, Esq. DAVANT & ASSOCIATES One Oxford Centre 301 Grant Street, Suite 4300 Pittsburgh, PA 15222 Telephone: (412) 519-2274 Facsimile: (412) 904-3255 ON MY OWN: Hartley Case Dismissed for Failure to Prosecute ---------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order dismissing for Failure to Prosecute the case captioned AMBER HARTLEY, et al., Plaintiffs, v. ON MY OWN INC., et al., Defendants. Case No. 2:17-cv-00353 KJM-EFB. (E.D. Cal.). Plaintiff Janice Taylor, proceeding pro se, has not responded to this court's order to show cause or otherwise attempted to further litigation in this matter. After plaintiffs Amber Hartley and Janice Taylor brought this class action suit, the court granted counsel's motion to withdraw as Taylor's counsel on the grounds that plaintiff Taylor has not responded to any communications from counsel in over six months.On August 1, 2018, the clerk of the court served Taylor by mail with the court's order granting defendants' motion to compel arbitration and stay proceedings, but the mail was returned as undeliverable. The court's August 20, 2018 minute order setting a status conference was likewise served on Taylor by mail and returned as undeliverable.On September 7, 2018, the court contacted Taylor by telephone, obtained her new mailing address and ordered her to formally file a notice of change of address with the clerk of the court. A federal court may sua sponte dismiss an action for failure to prosecute under Federal Rule of Civil Procedure Before dismissing an action for failure to prosecute, the court must consider the following factors: (1) the public's interest in expeditious resolution of litigation (2) the court's need to manage its docket (3) the risk of prejudice to the parties (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits. Public's Interest in Expeditious Resolution of Litigation As to the first factor, the public's interest in expeditious resolution of litigation always favors dismissal. Here, although Taylor has taken no action in this case since her counsel withdrew, the parties and the court must attempt to proceed without her participation while she remains a named plaintiff. Her refusal to litigate this case delays its resolution, and this factor favors dismissal. Court's Need to Manage Its Docket Taylor has long been absent from this case, failed to respond to the court's order to show cause why she should not be dismissed for non-prosecution, and is impeding proceedings toward resolution. Put differently, in attempting to manage its docket, the court has exhausted its limited resources to prompt Taylor to take action in this case to no avail. Moreover, this factor is usually reviewed in conjunction with the public's interest in expeditious resolution of litigation to determine if there is unreasonable delay and it also favors dismissal here. Risk of Prejudice to the Defendant In determining whether a defendant has been prejudiced, [the court] examine[s] whether the plaintiff's actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case. Here, Taylor has ignored an order requiring her to show cause why her claim should not be dismissed with prejudice, has not filed her change of address as ordered by this court and has not made herself available to participate in the discovery process, impairing the ability of the case to proceed. Availability of Less Drastic Alternatives The court must consider the adequacy of less drastic sanctions prior to dismissal. Here, as noted above, Taylor has long refused to participate in this case, even after the court has given her time to update her information and warned her that it was considering dismissing her for failure to prosecute. The court has no reason to believe further efforts to prompt Taylor to take action would be successful. This factor favors dismissal. Public Policy Favoring Disposition on the Merits While this factor generally weighs against dismissal, Taylor has provided the court with no basis for finding retention of this action would increase the likelihood that the matter would be resolved in its merits as to Taylor's claims. Accordingly, the court dismisses plaintiff Janice Taylor from this matter with prejudice. A full-text copy of the District Court's June 20, 2019 Order and Reasons is available at https://tinyurl.com/yxhhgr48 from Leagle.com. Amber Hartley, Plaintiff, represented by Richard Anderson Hoyer -- rhoyer@hoyerlaw.com -- Hoyer & Hicks, Ryan Lee Hicks, Hoyer & Hicks, 4 Embarcadero Ctr Ste 1400, San Francisco, CA 94111-4164, Sean Desmond McHenry -- sean@mchenryemployment.com -- McHenry Law Firm & Walter L. Haines, United Employees Law Group, PC, 5500 Bolsa Ave Ste 201, Huntington, Beach, CA, 92649-1102 On My Own Community Services & On My Own Independent Living Services, Defendants, represented by Alden John Parker -- aparker@fisherphillips.com -- Fisher & Phillips, LLP, Cameron M. Peyton, Fisher & Phillips LLP & William R.H. Mosher -- wmosher@fisherphillips.com -- Fisher & Phillips LLP. P.E.I.: Class Action Over Disability Support Program Can Proceed ---------------------------------------------------------------- Ryan Ross, writing for Journal Pioneer, reports that a class action lawsuit involving disability supports for people with mental illness is going ahead after a recent decision out of P.E.I.'s Supreme Court. In his decision, Justice Gregory Cann said he was satisfied the requirements to have the lawsuit proceed as a class action have been met. A class action lawsuit is initiated by one or more people on behalf of a larger group. In this case, Laura King and Nathan Dawson are the plaintiffs who sought certification with a motion to have the class defined as all living people currently or formerly resident of P.E.I. since Oct. 1, 2001 who claim to suffer or have suffered from a mental disability. King has been involved with the fight for inclusion of people with mental illness in the province's disability support program for several years. Her mother, Millie King, filed a human rights complaint on her daughter's behalf, which saw a P.E.I. Human Rights Commission panel rule in 2016 that the program was discriminatory. The panel ordered the government to pay Laura $15,000 in damages and $16,000 in costs. In response to that decision the government sought a judicial review, which eventually ended up before the P.E.I. Court of Appeal. The court of appeal found the panel made findings and conclusions that were reasonable and upheld its decision. Since the initial human rights panel decision, the provincial government expanded its support program and renamed it AccessAbility Supports. With his decision, Cann directed the plaintiffs to file an amended litigation plan that sets out their views related to individual issues and proposed methodology for resolution. [GN] PORTFOLIO RECOVERY: Serio Sues over Debt Collection Practices ------------------------------------------------------------- NICHOLAS VINCENT SERIO, individually and on behalf of all others similarly situated, Plaintiff v. PORTFOLIO RECOVERY ASSOCIATES, LLC; DOES 1 through 10, inclusive, Defendants, Case No. 19CV348789 (Cal. Super., Santa Clara, June 11, 2019) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The case is assigned to Judge Nathanael M. Cousins. Portfolio Recovery Associates, LLC, also known as Anchor Receivables Management, manages past-due accounts. It serves customers through account representatives. The company was incorporated in 1996 and is based in Norfolk, Virginia. Portfolio Recovery Associates, LLC operates as a subsidiary of PRA Group, Inc. [BN] The Plaintiff is represented by: Fred W. Schwinn, Esq. Matthew C Salmonsen, Esq. Raeon Rodrigo Roulston, Esq CONSUMER LAW CENTER, INC. 1435 Koll Circle, Suite 104 San Jose, CA 95112-4610 Telephone: (408) 294-6100 Facsimile: (408) 294-6190 E-mail: fred.shwinn@sjconsumerlaw.com matthew.salmonsen@sjconsumerlaw.com raeon.roulston@sjconsumerlaw.com POST UNIVERSITY: Davis Moves for Certification of TCPA Class ------------------------------------------------------------ The Plaintiff in the lawsuit entitled MELANIE DAVIS, on behalf of herself and all others similarly situated v. POST UNIVERSITY, INC., Case No. 9:18-cv-81004-RKA (S.D. Fla.), moves to certify this class pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure: From July 30, 2014 through July 30, 2018, all persons within the United States who, on their residential or cellular telephone number, received more than one telephone call from Defendant in a 12-month period, while the entry or file in Defendant's CRM system associated with that person was marked as, flagged as, or considered a "Rejected Lead" or "Opportunity Lost." Ms. Davis alleges on behalf of herself and all others similarly situated a claim for violations of the Telephone Consumer Protection Act, stemming from the Defendant's alleged practice of making telemarketing calls to her and Class members despite not having the required policies, procedures, and training in place to document and honor "do-not-call" requests.[CC] The Plaintiff is represented by: Bradford R. Sohn, Esq. THE BRAD SOHN LAW FIRM PLLC 2600 South Douglas Rd., Suite 1007 Coral Gables, FL 33134 Telephone: (786) 708-9750 Facsimile: (305) 397-0650 E-mail: brad@sohn.com - and - Jeremy M. Glapion, Esq. THE GLAPION LAW FIRM, LLC 1704 Maxwell Drive Wall, NJ 07719 Telephone: (732) 455-9737 Facsimile: (732) 709-5150 E-mail: jmg@glapionlaw.com QUEST DIAGNOSTICS: Faces Rogge et al. Suit Over Data Breach ----------------------------------------------------------- PATRICK ROGGE; and TIFFANY DUONG, individually, and on behalf of all others similarly situated, Plaintiff v. QUEST DIAGNOSTICS INCORPORATED; AMERICAN MEDICAL COLLECTION AGENCY, INC.; and OPTUM360, LLC, Defendants, Case No. 2:19-cv-13648-KM-MAH (D.N.Y., June 11, 2019) is a class action lawsuit against the Defendants' unlawful disclosure of the confidential information of the Plaintiff and the class, and the millions of patients' financial information, medical information, personal information, and other protected health information. According to the complaint, on June 3, 2019, Quest quietly disclosed in a Securities and Exchange Commission filing that hackers had accessed the Personal Information of 11.9 million of its patients. The Personal Information, which was stored by American Medical, included incredibly Personal Information; specifically, HIPAA-protected medical information, bank account information, credit card numbers, and Social Security numbers. Quest knew of the breach by May 14, 2019, if not before, yet Quest waited almost three weeks to disclose the data breach -- and then only disclosed it quietly in an SEC filing. Because of the data breach, Class Members now face significant risks of identity theft. According to the U.S. Government Accountability Office, perpetuators of fraud can use stolen personal information -- such as account numbers, passwords, or Social Security numbers -- to take out loans or seek medical care under someone else's name, or make unauthorized purchases on credit cards, among other crimes. Foreign state-based actors can use personal information to support espionage or other nefarious uses. Quest Diagnostics Incorporated provides diagnostic testing, information, and services in the United States and internationally. The company also offers risk assessment services for the life insurance industry; and health information technology solutions for healthcare organizations and clinicians. Quest Diagnostics Incorporated was founded in 1967 and is headquartered in Secaucus, New Jersey. [BN] The Plaintiffs are represented by: Duran L. Keller, Esq. THE LAW OFFICE OF EDWYN D. MACELUS PO Box 374 Edgewater, NJ 07020 Telephone: (765) 444-9202 Facsimile: (765) 807-3388 E-mail: duran@kellerlawllp.com - and- Mark A. Ozzello, Esq. Tarek H Zohdy, Esq. Cody R Padgett, Esq. Trisha Kathlee Monesi, Esq. CAPSTONE LAW APC 1875 Century Park East Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 E-mail: Mark.ozzello@capstonelawyers.com Tarek.zohdy@capstonelawyers.com Cody.Padgett@capstonelawyers.com Trisha.monesi@capstonelawyers.com RAUSCH STURM: Johnson Sues over Debt Collection Practices --------------------------------------------------------- ARTHUR JOHNSON, individually and on behalf of all others similarly situated, Plaintiff v. RAUSCH STURM ISRAEL ENERSON & HORNIK, LLP; WORLDWIDE ASSET PURCHASING II, LLC; and JOHN DOES -125, Defendants, Case No 1:19-cv-05460-JSR (S.D.N.Y., June 11, 2019) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The case is assigned to Judge Jed S. Rakoff. Rausch Sturm Israel Enerson & Hornik LLC operates as a law firm. The Company offers debt collection, legal advice, risk management, and security control services. [BN] The Plaintiff is represented by: Benjamin Jarret Wolf, Esq. Joseph Karl Jones JONES WOLF & KAPASI, LLC 60 East 42st, 46th Floor New York, NY 10165 Telephone: (646) 459-7971 Facsimile: (646) 459-7973 E-mail: bwolf@legaljones.com jkj@legaljones.com REVLON: Class Actions Pile Up Over SAP ERP System Error ------------------------------------------------------- Georgina Caldwell, writing for Global Cosmetic News, reports that Revlon is facing a series of class action lawsuits from shareholders over its handling of the planning, monitoring and implementation of its enterprise resource planning system, according to a report published by Computer Weekly. Some four law firms have filed class action suits to date, based on the US beauty behemoth's quarterly results where it confessed it was unable to fulfil orders to the tune of US$64 million because of its inability to record and account for inventory. “In early February [2018], we rolled out SAP for a large part of our North American business to integrate planning, sourcing, manufacturing, distribution and finance . . . However, we experienced issues during the SAP changeover that caused the plant to ramp up capacity slower than anticipated,” Christopher Peterson, COO, told investors on a call following the announcement of the company's first quarter results for fiscal 2018, per Computer Weekly. [GN] RIO TINTO: New York Court Dismisses Investor Class Action --------------------------------------------------------- Darren Gray, writing for Sydney Morning Herald, reports that global miner Rio Tinto has had a significant victory in the United States, with a New York court dismissing an investor class action against it over a costly, failed mining venture. The lawsuit, filed in 2017 by Seattle-based firm Hagens Berman, was over Rio's failed investment in a Mozambique coal project which ran into a number of setbacks, and eventually cost the miner billions of dollars. But US District Court of New York Judge Analisa Torres dismissed the complaint against the defendants, listed as Rio Tinto, former Rio chief executive Tom Albanese and former chief financial officer Guy Elliott. The judge ruled that some of the complaints made in the lawsuit were too old under US law to proceed, while one claim was dismissed because of "a failure to allege falsity" and another because of a "failure to allege both falsity and materiality". The law firm had alleged that the defendants had made false and misleading statements and/or failed to disclose adverse information about the true value of Rio's Mozambique coal investment made in 2011. Rio acquired the assets for $US3.7 ($A5.3) billion in 2011, but its plans for coal mining in the African country hit major hurdles, the assets crumbled in value, and the miner sold them in October 2014 for just $US50 ($A71.8) million. The US law firm undertook the action on behalf of buyers of Rio American Depositary Receipts between October 23, 2012 and February 15, 2013. The writ alleged: "Defendants' wrongful conduct has inflicted significant damages on Rio Tinto investors." [GN] S&S UTILITIES: Morgan Seeks Nod to Send Notice to Laborers Class ---------------------------------------------------------------- The Plaintiff in the lawsuit titled PAUL MORGAN, on behalf of himself and all others similarly situated v. S&S UTILITIES ENGINEERING, LLC A Florida Limited Liability Company, and STEPHEN C. SMITH, individually, Case No. 0:19-cv-61048-WPD (S.D. Fla.), seeks entry of an order permitting, under Court supervision, notice to this class of similarly situated employees: All persons employed as hourly paid laborers for Defendants in March/April 2019, who did not receive at least minimum wage for all hours worked in one or more workweeks, due to Defendants' failure to provide them with their final paychecks. The lawsuit alleges violations of the Fair Labor Standards Act.[CC] The Plaintiff is represented by: Noah E. Storch, Esq. RICHARD CELLER LEGAL, P.A. 10368 W. SR. 84, Suite 103 Davie, FL 33324 Telephone: (866) 344-9243 Facsimile: (954) 337-2771 E-mail: noah@floridaovertimelawyer.com SKECHERS USA: Employees Class Certified Under FLSA in Wilk Suit --------------------------------------------------------------- The Honorable Jesus G. Bernal granted-in-part the Plaintiff's Motion to Certify Action as FLSA Collective Action in the lawsuit titled Ealeen Wilk v. Skechers U.S.A., Inc., et al., Case No. 5:18-cv-01921-JGB-SP (C.D. Cal.). The Court conditionally certifies this putative FLSA class: Current and former non-exempt employees of Defendant, who were employed by Defendant and who received commissions, non-discretionary bonuses and/or other items of compensation and worked overtime during one or more pay periods from September 10, 2015, through the present. According to the Court's civil minutes, the parties are ordered to meet and confer as to the substance of the proposed notice to the FLSA class. On or before July 22, 2019, the parties shall file a mutually agreed-upon notice. If the parties are unable to agree upon such a notice, each may file their proposed notice accompanied by no more than 5 pages of briefing. On or before July 29, 2019, each party may file a 5-page response to the other's proposed notice. The July 8, 2019 hearing is vacated. On September 10, 2018, the Plaintiff filed a Complaint against the Defendant alleging three causes of action: (1) failure to pay overtime in violation of Fair Labor Standards Act and California Labor Code; (2) failure to pay all wages due upon termination in violation of California Labor Code; and (3) unfair business practices in violation of California Business and Professions Code.[CC] SKYLINE STEEL: Holguin et al. Suit Transferred to D. Ariz. ---------------------------------------------------------- The case, Holguin et al v. Skyline Steel Incorporated et al, Case No. CV2019-008110 (Filed on June 6, 2019), was transferred from the Maricopa County Superior Court to the United States District Court for the District of Arizona on July 1, 2019. It is now assigned to Hon. Judge G. Murray Snow. The United States District Court for the District of Arizona assigned Case No. 2:19-cv-04609-GMS to the proceeding. In this complaint, Plaintiffs Oscar Holguin, Adrian Dorantes-Meza, Cesar Hernandez Castillo, and Jesse Muruato allege that Defendants have violated the overtime provisions of the Fair Labor Standards Act and Arizona's Paid Sick Time Law. They further assert that the Defendants have enforced a uniform company-wide policy wherein it improperly requires its field works -- Plaintiffs and the Putative Class Members -- to perform work off the clock and without pay. Skyline is a domestic for-profit corporation, licensed to and doing business in Arizona. The company manufactures and supplies steel foundation products for customers in the United States, Canada, Mexico, the Caribbean, Central America, and Colombia. It also offers fabricated products, including pipes, beams and columns, angles, and channels.[BN] The Plaintiffs are represented by: Nicholas J. Enoch, Esq. Stanley Lubin, Esq. Corey R. Feltre, Esq. LUBIN & ENOCH, P.C. 349 North Fourth Avenue Phoenix, AZ 85003-1505 Telephone: (602) 234-0008 Facsimile: (602) 626-3586 SOUTHERN CABLE: Allied Bid to Quash Wallace Case Subpoena Denied ---------------------------------------------------------------- The Hon. Judge Wallace Capel, Jr., denied, as moot, Allied Eastern Indemnity Company's Motion to Quash Subpoena in the case captioned as TIMOTHY A. WALLACE, individually and on behalf of all others similarly situated, Plaintiff v. SOUTHERN CABLE SYSTEMS, LLC; JERRY RUSSELL TYLER; and ALLIED EASTERN INDEMNITY COMPANY, Case No. 2:19-mc-03874-WKW (M.D. Ala., June 11, 2019). The Court directed the clerk to close this file. Allied Eastern Indemnity Company provides property and casualty insurance services. The company was founded in 2002 and is based in Lancaster, Pennsylvania. Allied Eastern Indemnity Company operates as a subsidiary of Eastern Insurance Holdings, Inc. [BN] The Plaintiff is represented by: Jeremiah J. Talbott, Esq. Ryan Patrick Stoner, Esq. Travis Phillip Lampert, Esq. JEREMIAH J. TALBOTT, PA 900 East Moreno Street Pensacola, FL 32503 Telephone: (850) 437-9600 Facsimile: (850) 437-0906 E-mail: jj@talbottlawfirm.com The Defendants are represented by: Justin Glyien Williams, Esq. TANNER & GUIN, LLC 2711 University Boulevard Tuscaloosa, AL 35401 Telephone: (205) 633-0218 Facsimile: (205) 633-0318 E-mail: justin@tannerguin.law - and - Russell Frank Van Sickle, Esq. BEGGS & LANE RLLP- PENSACOLA FL 501 Commendencia St Pensacola, FL 32502 Telephone: (850) 469-3331 - and - Madeleine Greskovich, Esq. Starnes Davis Florie LLP 100 Brookwood Place-7th Floor Birmingham, AL 35209 Telephone: (205) 868-6000 Facsimile: (205) 868-6099 E-mail: msg@starneslaw.com SPRINT: Faces Class Action Over Buy One Get One Cellphone Offer --------------------------------------------------------------- Courthouse News Service reported that a class action in L.A. Superior Court claims that Sprint's "buy [or lease] one, get one free" offer for cellphones is actually a usurious loan, with "exorbitant, unconscionable charges if the phone is not purchased, or the lease is terminated." STATE EMPLOYEE'S ASSOC: Doughty Appeals Dismissal Order to 1st Cir. ------------------------------------------------------------------- Plaintiffs Patrick Doughty and Randy Severance filed an appeal from the District Court's oral order and judgment granting the Defendant's Motion to Dismiss issued on May 30, 2019, in the lawsuit styled Patrick Doughty, et al. v. State Employee's Association of NH, SEIU, Local 1984, CTW, CLC, Case No. 1:19−cv−00053−PB, in the U.S. District Court for the District of New Hampshire. As previously reported in the Class Action Reporter, the lawsuit seeks to recover compensatory damages, refunds or restitution in the amount of compulsory union fees paid to the union from the Plaintiffs' wages without their written consent, prejudgment and post-judgment interest, costs and attorneys' fees pursuant to the First and Fourteenth Amendments of the U.S. Constitution. Patrick Doughty and Randy Severance are public employees of the State of New Hampshire but not members of the union, the State Employees' Association of New Hampshire. They were allegedly forced by provisions of the operative collective bargaining agreements to pay union fees to the union as a condition of their employment. The State deducted those compulsory fees without Plaintiffs' consent and remitted them to the union, notes the complaint. The appellate case is captioned as Patrick Doughty, et al. v. State Employee's Association of NH, SEIU, Local 1984, CTW, CLC, Case No. 19-1636, in the United States Court of Appeals for the First Circuit.[BN] The Plaintiffs-Appellants are represented by: Bryan K. Gould, Esq. Cooley A. Arroyo, Esq. CLEVELAND, WATERS AND BASS, P.A. Two Capital Plaza, P.O. Box 1137 Concord, NH 03302-1137 Telephone: (603) 224-7761 Facsimile: (603) 224-6457 E-mail: gouldb@cwbpa.com arroyoc@cwbpa.com - and - Milton L. Chappell, Esq. Alyssa K. Hazelwood, Esq. Frank D. Garrison, Esq. NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, INC. 8001 Braddock Rd, Suite 600 Springfield, VA 22160 Telephone: (703) 770-3329 E-mail: mlc@nrtw.org akh@nrtw.org fdg@nrtw.org The Defendants-Appellees are represented by: Leon Dayan, Esq. Ramya Ravindran, Esq. BREDHOFF & KAISER PLLC 805 15th Street NW Washington, DC 20005 Telephone: (202) 842−2600 E-mail: ldayan@bredhoff.com rravindran@bredhoff.com - and - John S. Krupski, Esq. COOK KENISON BEDARD & SULLIVAN PA PO Box 1465 Concord, NH 03302−1465 Telephone: (603) 225−3323 E-mail: jake@milnerkrupski.com - and - Gary Snyder, Esq. STATE EMPLOYEES' ASSOCIATION OF NH, INC. 207 N Main St. Concord, NH 03301 Telephone: (603) 271−6384 E-mail: gsnyder@seiu1984.org SUFFOLK COUNTY, NY: Court Consolidates Holloway Suit With Butler ---------------------------------------------------------------- The United States District Court for the Eastern District of New York issued a Memorandum and Order granting Plaintiff's Application to Proceed In Forma Pauperis in the case captioned TARELL T. HOLLOWAY, Plaintiff, v. SUFFOLK COUNTY CORRECTIONAL FACILITY, ERROL TOULON, JR., Sheriff, Defendants. TARELL T. HOLLOWAY, Plaintiff, v. SUFFOLK COUNTY CORRECTIONAL FACILITY, ERROL TOULON, JR., Sheriff, Defendants. Nos. 19-CV-1819(JS)(GRB), 19-CV-1895(JS)(GRB) (E.D.N.Y.). Tarell T. Holloway (Plaintiff) filed a pro se Complaint together with an application to proceed in forma pauperis. Plaintiff filed another Complaint in this Court against the same Defendants as his March 29th Complaint and alleging the same claims, together with an application to proceed in forma pauperis. Again, Plaintiff did not file a PLRA with the Complaint. Accordingly, by Notice of Deficiency dated April 2, 2019, Plaintiff was instructed to complete and return the enclosed PLRA within fourteen (14) days in order for his case to proceed. The Court's Notices were sent to Plaintiff's address of record in each case. However, the Notices sent to Plaintiff at the Suffolk County Correctional Facility were returned to the Court and were marked Undeliverable, Discharged", Return to Sender and Unable to Forward. To date Plaintiff has not filed the completed PLRA forms, nor has he updated his address or otherwise communicated with the Court since April 1, 2019. However, because the Plaintiff provided a residential address in his case assigned 19-CV-1819, and mail sent to the Plaintiff there has not been returned, the Court presumes this to be his current address and DIRECTS the Clerk of the Court to update his address of record in the case assigned docket number 19-CV-1895 to the residential address provided in 19-CV-1819. And, since Plaintiff is not incarcerated, the PLRA forms are not required. Upon review of the declarations in support of the applications to proceed in forma pauperis, the Court finds that Plaintiff is qualified by his financial status to commence these actions without prepayment of the filing fee. Accordingly, Plaintiff's applications to proceed in forma pauperis are GRANTED. Pursuant to the Court's Order of Consolidation in Butler, et al. v. DeMarco, et al., No. 11-CV-2602 (JS)(GRB) (Consolidated Action), the Court has reviewed the instant Complaints and finds that they relate to the subject matter of the Consolidated Action. Accordingly, these actions shall be consolidated with the Consolidated Action. This affects Plaintiff in the following ways: -- The Plaintiff in this action shall become a member of the certified classes in Butler (11-CV-2602); -- Any claims in the instant Complaint that are not included in the Consolidated Amended Complaint in Butler shall be severed. Plaintiff, as a member of the class, shall be represented by pro bono counsel, Shearman & Sterling LLP. If the Plaintiff does not wish to proceed as a member of the Consolidated Action, he must so indicate in a letter to the Court within thirty (30) days of receiving a copy of this Order. Upon receipt of such a letter, the Court will direct the Clerk of the Court to sever these Complaints from the Consolidated Amended Complaint and reopen and reinstate his individual pro se actions. The Plaintiff's applications to proceed in forma pauperis are granted and the Clerk of the Court is directed to consolidate this matter with Butler, et al. v. DeMarco, et al., No. 11-CV-2602; to mail a copy of this Order, the Order of Consolidation, and the Consolidated Amended Complaint to Plaintiff at his last known address; and to mark these cases closed. A full-text copy of the District Court's June 24, 2019 Memorandum and Order is available at https://tinyurl.com/yxkjoj52 from Leagle.com. Tarell T. Holloway, Plaintiff, pro se. SUPERVALU: 8th Cir. Affirms Data Breach Class Action Decision ------------------------------------------------------------- Philip Yannella, Esq. -- yannellap@ballardspahr.com -- Ballard Spahr LLP, in an article for JDSupra, reports that the law firm blogged on the Saks data breach class action, and in the process mentioned a trend among federal courts to reject fear of future identity theft claims in retail breach cases. Because retail breaches rarely involve theft of social security numbers, date of birth, healthcare information or other data that can be used to commit identity theft, courts have typically found that plaintiffs in such cases lack standing to pursue their claims in federal court. Dismissal in one of those cases, SuperValu, was affirmed on May 31 by the 8th Circuit. The Court's opinion doesn't address the standing argument we blogged about, but instead rests on a different ground that highlights another hurdle that data breach plaintiffs continue to face: even if they can plausibly allege an injury in fact for standing purposes, that injury may be insufficient to meet damages standards under applicable state law. The procedural history of the SuperValu case spans five years and multiple dismissals and appeals, but here's the skinny: after the district court initially dismissed the action for lack of standing, plaintiffs' counsel located a consumer who had suffered fraudulent charges on his credit card stemming from the SuperValu breach in 2014. This fact distinguished the consumer from other plaintiffs who relied unsuccessfully on a fear of future identity theft to support their standing claim. After significant motion practice over whether the post-judgment process plaintiffs used to amend the complaint was proper, the new consumer was substituted in as a plaintiff/class representative and the case reinstated. The district court then granted SuperValu's 12(b)(6) motion, finding that the plaintiff had failed to plead cognizable negligence, consumer fraud, unjust enrichment, and implied contract claims. The 8th Circuit affirmed the district court decision. The most important rulings relate to the viability of the plaintiff's negligence and consumer fraud claims. The 8th Circuit found that Illinois state law did not recognize a common law duty of merchants to protect consumers against criminal activity, including data breaches. In the Court's view, consumers and merchants do not have a special relationship sufficient to establish such a duty, and the FTCA does not establish a private right of action to pursue such a claim. The Court also affirmed dismissal of the consumer fraud claim, finding that the Illinois statute required plaintiffs establish "actual damage", defined to mean "pecuniary harm." Although the plaintiffs did not state so in the amended complaint, the Court concluded that plaintiff had been reimbursed for the fraudulent credit card charge -- because federal law and credit card contracts require such reimbursement -- and therefore hadn't suffered any pecuniary harm. The Court also held that the time the Plaintiff had spent monitoring his credit and obtaining a new credit card did not constitute actual damage under the Illinois Consumer Fraud Act. The SuperValu opinion is a reminder that legal injury and damages are not the same thing. Even where plaintiffs are successful in establishing an injury sufficient for Article III standing, the injury may not be sufficient to meet damages requirements under state causes of action, which often require out of pocket losses. Moreover, not every state has recognized a common law duty for businesses to protect sensitive customer data from unauthorized access. Data breach plaintiffs will continue to face an uphill climb in those jurisdictions, even if they can clear the standing hurdle. [GN] TAIWAN KAI: Aug. 6 Settlement Final Approval Hearing Set -------------------------------------------------------- Hartley LLP and Heins Mills & Olson, P.L.C. on June 3 disclosed that all persons and entities in the United States, and its territories and possessions, which purchased Aftermarket Automotive Sheet Metal Products ("AMSM") directly from Taiwan Kai Yih Industrial Co., Ltd., Tong Yang Industry Co., Ltd., TYG Products, L.P., Jui Li Enterprise Company, Ltd., Gordon Auto Body Parts Co. Ltd., AP Auto Parts Industrial, Ltd. (formerly known as Auto Parts Industrial, Ltd.), or Cornerstone Auto Parts, LLC between January 1, 2003 and September 4, 2009 (the "Class"), may be affected by a class action settlement with AP Auto Parts Industrial Ltd., formerly known as Auto Parts Industrial, Ltd. and its wholly owned subsidiary, Cornerstone Auto Parts, LLC (together "API"). Direct Purchaser Plaintiffs claim that Defendants violated the United States federal antitrust laws by agreeing to fix prices and limit supply for AMSM. AMSM includes hoods, doors, bumpers, fenders, bonnets, floor panels, trunk assemblies, trunk lids, tailgates, roof panels and reinforcement parts. Defendants have denied and continue to deny each and all of the claims and contentions alleged by Direct Purchaser Plaintiffs, as well as all charges of wrongdoing or liability. The Court has not decided in favor of either Party. A proposed Settlement has been reached with AP Auto Parts Industrial Ltd. for USD$3,250,000 in cash, which, after Taiwan taxes, will net USD$2,600,000 in a settlement fund ("Settlement Fund"). Prior settlements were reached with Tong Yang Industry Co., Ltd., Taiwan Kai Yih Industrial Co., Ltd., and TYG Products, L.P., and Gordon Auto Body Parts Co. Ltd. After deducting costs, fees and expenses, the balance of the AP Auto Parts Settlement Fund will be distributed to the Class on a pro-rata basis depending on how much you spent on AMSM during the Class Period from all the Defendants. You are included in the Court certified Class if you fit the following description: All persons and entities in the United States, and its territories and possessions, that purchased Aftermarket Automotive Sheet Metal Products directly from any of the Defendants between January 1, 2003 and September 4, 2009. If you are included in the Court certified Class and you submitted a valid Claim Form in conjunction with the prior settlements, you will automatically receive a payment from this Settlement if it is approved and becomes final. If you did not exclude yourself from the certified Class, you may object to all or any part of the Settlement and give reasons why you think the Court should not approve it. Your written objection must be mailed to the Settlement Administrator, Class Counsel, Counsel for API, and the Court and must be postmarked no later than July 3, 2019. You may also request to appear and speak at the Final Approval Hearing. You may have your own attorney attend, at your own expense, but are not required to. More information regarding how to object to the Settlement and request to appear at the Final Approval Hearing can be found in the Long Form Notice available at www.AftermarketSheetMetalSettlement.com. The Court will hold the Final Approval Hearing beginning at 11:00 a.m. on August 6, 2019, at the United States District Court for the Eastern District of Wisconsin. At this hearing, the Court will listen to any objections and consider whether to approve the Settlement as fair, reasonable, and adequate; a request by Class Counsel for attorneys' fees and expenses; and a service award of $10,000 to each of the Class Representatives (Fond du Lac Bumper Exchange Inc. and Roberts Wholesale Body Parts, Inc.). Class Counsel is requesting attorneys' fees in the amount of no more than 33% of the total Settlement Fund, payable only as a percentage of the funds actually deposited into the U.S. based escrow account, and payment of litigation costs and expenses. These costs and expenses include each law firm's reported expenses and common costs to date. Class Counsel's motion for attorneys' fees and costs and service awards will be available at www.AftermarketSheetMetalSettlement.com, on or about June 19, 2019. For more information go to www.AftermarketSheetMetalSettlement.com, or call 1-866-413-5892. [GN] TAKEDA PHARMA: Appeal in Painters' Fund Class Suit Still Pending ---------------------------------------------------------------- Takeda Pharmaceutical Company Limited said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on June 27, 2019, for the fiscal year ended March 31, 2019, that the appeal in the the Painters' Fund class action suit related to ACTOS, is still pending. Takeda has been named as a defendant in lawsuits in U.S. federal and state courts in which plaintiffs allege to have developed bladder cancer or other injuries as a result of taking products containing type 2 diabetes treatment pioglitazone (U.S. brand name ACTOS). Eli Lilly and Company ("Lilly"), which co-promoted ACTOS in the United States for a period of time, also has been named as a defendant in many of these lawsuits. Under the parties' co-promotion agreement, Takeda has agreed to defend and indemnify Lilly in the U.S. matters. Outside the U.S., lawsuits and claims have also been brought by persons claiming similar injuries. In April 2015, Takeda reached an agreement with the lead plaintiffs' lawyers that resolved the vast majority of ACTOS product liability lawsuits pending against Takeda and Lilly in the U.S. The settlement covered all bladder cancer claims pending in any U.S. court as of the date of settlement. Claimants with unfiled claims in the U.S. represented by counsel as of the date of settlement and within three days thereafter were also eligible to participate. The settlement became effective when 95% of litigants and claimants opted-in. In connection with this broad settlement, Takeda has paid 2.4 billion USD (approximately 288 billion JPY) into a qualified settlement fund. Takeda received insurance proceeds totaling approximately 58 billion JPY under various policies covering product liability claims against Takeda. Takeda also established provisions for the remaining ACTOS claims and lawsuits. In addition to remaining product liability claims, the following lawsuits have been filed against Takeda by public and private third-party payors, as well as consumers, seeking damages for alleged economic losses: A purported nation-wide class action lawsuit has been filed in federal court in California, the Painters' Fund case on behalf of third-party payors and consumers seeking, among other things, reimbursement of monies spent on ACTOS. In April 2018, the court dismissed the Painters' Fund case. Plaintiffs appealed. A purported California class action has been filed in federal court in California asserting claims similar to the Painters' Fund case. Takeda Pharmaceutical Company Limited, together with its subsidiaries, engages in the research, development, manufacturing, and marketing of pharmaceutical products, over-the-counter medicines and quasi-drug consumer products, and other healthcare products. Takeda Pharmaceutical Company Limited was founded in 1781 and is headquartered in Tokyo, Japan. TAKEDA PHARMA: Bid to Dismiss Actos-Related Suit in NY Pending -------------------------------------------------------------- Takeda Pharmaceutical Company Limited said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on June 27, 2019, for the fiscal year ended March 31, 2019, that the company has filed a motion to dismiss the remaining legal theory in the purported class action lawsuits filed in federal court in New York by several end payors and wholesalers against Takeda alleging anticompetitive conduct to delay generic competition for ACTOS. There have been purported class action lawsuits filed in federal court in New York by several end payors and wholesalers against Takeda alleging anticompetitive conduct to delay generic competition for ACTOS. In September 2015, the court granted defendants' motions to dismiss the antitrust claims asserted by the end payors. The end payors appealed this decision to the Federal 2nd Circuit Court of Appeals. The wholesalers' lawsuit had been stayed pending the appellate court's decision in the end payors' lawsuit. In February 2017, the appellate court reversed in part the dismissal of the end payors' case and allowed one of plaintiffs' antitrust theories to proceed in the trial court. Specifically, the court ruled that plaintiffs sufficiently alleged that Takeda's characterizations of two patents in the FDA Orange Book were false, and that this resulted in delaying Teva's launch of generic ACTOS. Takeda disagrees with these allegations and believes the Orange Book listings were correct. The court, however, affirmed the trial court's dismissal of other antitrust theories. The end payors' case, along with the wholesalers' case, is proceeding in the trial court, where Takeda has filed a motion to dismiss the remaining legal theory. Takeda Pharmaceutical Company Limited, together with its subsidiaries, engages in the research, development, manufacturing, and marketing of pharmaceutical products, over-the-counter medicines and quasi-drug consumer products, and other healthcare products. Takeda Pharmaceutical Company Limited was founded in 1781 and is headquartered in Tokyo, Japan. TAKEDA PHARMA: Class Suit over ELAPRASE Tests Underway in Brazil ---------------------------------------------------------------- Takeda Pharmaceutical Company Limited said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on June 27, 2019, for the fiscal year ended March 31, 2019, that Takeda is currently waiting the assignment of the case involving Shire Farmaceutica Brasil Ltda to one of the Justices of the Superior Court of Justice. In 2014, Shire's Brazilian affiliate, Shire Farmaceutica Brasil Ltda, was served with a lawsuit brought by the State of Sao Paulo where the Brazilian Public Attorney's office has intervened alleging that Shire would be obligated to supply ELAPRASE for an indefinite period at no cost to patients who participated in ELAPRASE clinical trials in Brazil, and seeking recoupment to the Brazilian government for amounts paid on behalf of these patients to date, and moral damages associated with these claims. On May 6, 2016, the trial court judge ruled on the case and dismissed all the claims under the class action, which was appealed. On February 20, 2017, the Court of Appeals in Sao Paulo issued a decision upholding the decision rendered by the lower court judge, dismissing, therefore, all the claims under the class action. On July 12, 2017, the Public Prosecutor filed an appeal addressed to the Supreme Court. On October 10, 2017, the State of Sao Paulo filed appeals addressed to the Superior Court of Justice and to the Supreme Court. On November 13, 2017, Shire submitted its answers to the aforementioned appeals. On July 3, 2018 the President of Sao Paulo Court of Appeals issued a decision denying the remittance of all appeals to the Superior Courts. Against such decision, both the State (on August 23, 2018) and the Public Prosecutor (on October 3, 2018) filed an appeal. By virtue of such appeal, the case records were remitted to the Superior Court of Justice on February 27, 2019. Takeda is currently waiting the assignment of the case to one of the Justices of the Superior Court of Justice. Takeda Pharmaceutical Company Limited, together with its subsidiaries, engages in the research, development, manufacturing, and marketing of pharmaceutical products, over-the-counter medicines and quasi-drug consumer products, and other healthcare products. Takeda Pharmaceutical Company Limited was founded in 1781 and is headquartered in Tokyo, Japan. TAKEDA PHARMA: Faces 3 Proton Pump Inhibitor Class Suits in Canada ------------------------------------------------------------------ Takeda Pharmaceutical Company Limited said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on June 27, 2019, for the fiscal year ended March 31, 2019, that three proposed class actions have been filed in three provinces in Canada (Quebec, Ontario, and Saskatchewan) related to Proton Pump Inhibitor ("PPI") Related Claims. As of June 10, 2019 approximately 6,000 product liability lawsuits involving PREVACID and DEXILANT have been filed against Takeda in U.S. federal and state courts. The federal lawsuits are consolidated for pre-trial proceedings in a multi-district litigation in federal court in New Jersey. The plaintiffs in these cases allege they developed kidney injuries as a result of taking PREVACID and/or DEXILANT, and that Takeda failed to adequately warn them of this potential risk. It remains unclear how many of the plaintiffs actually took PREVACID and/or DEXILANT. Similar cases are pending against other manufacturers of drugs in the same PPI class as Takeda's products, including AstraZeneca plc ("AstraZeneca"), Procter & Gamble Company ("Procter & Gamble") and Pfizer Inc. ("Pfizer"). Outside the U.S., three proposed class actions have been filed in three provinces in Canada (Quebec, Ontario, and Saskatchewan). The defendants in these actions include Takeda, AstraZeneca, Janssen Pharmaceutical Companies ("Janssen") and several generic manufacturers. It is unclear how many additional actions, if any, may be filed against Takeda in the U.S., Canada or elsewhere. Takeda Pharmaceutical Company Limited, together with its subsidiaries, engages in the research, development, manufacturing, and marketing of pharmaceutical products, over-the-counter medicines and quasi-drug consumer products, and other healthcare products. Takeda Pharmaceutical Company Limited was founded in 1781 and is headquartered in Tokyo, Japan. TECHPRECISION CORP: Discovery Extended to July 22 in Suit v. Ranor ------------------------------------------------------------------ TechPrecision Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on June 27, 2019, for the fiscal year ended March 31, 2019, that the court has extended discovery in the employee class action against Ranor, Inc. to July 22, 2019. On or about February 26, 2016, nine former employees, or plantiffs, of Ranor filed a complaint in the Massachusetts Superior Court, Worcester County, against Ranor and former and current executive officers of Ranor, alleging violations of the Massachusetts Wage Act, breach of contract and conversion based on a modification made to Ranor's personal time off policy. Plaintiffs claim that Ranor's modification to its personal time off, or PTO, policy in April 2014 caused these employees to forfeit earned PTO. Plaintiffs assert their claims on behalf of a class of all current and former employees of Ranor who were affected by the modification to Ranor's PTO policy. The Court held a status conference on this matter on February 28, 2019. At that conference, the Court extended discovery to July 22, 2019. The Court also ruled that summary judgment motions must be served by August 21, 2019 and filed by September 21, 2019. Discovery is ongoing. TechPrecision Corporation, together with its subsidiaries, manufactures and sells precision, large-scale fabricated, and machined metal components and systems in the United States and the People's Republic of China. It offers custom components for ships and submarines, aerospace equipment, nuclear power plants, and large scale medical systems. The company also provides manufacturing engineering services to assist customers. It serves customers in defense, aerospace, nuclear, energy, medical, and precision industrial markets. The company was founded in 1956 and is headquartered in Westminster, Massachusetts. TIME INC: Faces Class Action Over Automatic Subscriptions --------------------------------------------------------- Courthouse News Service reported that a federal class action accuses Time Inc. and Meredith Corp. of automatically re-enrolling magazine subscribers for new subscriptions without adequate notice, and taking money from their bank accounts. A copy of the Complaint is available at: https://is.gd/a3zOyR TIVITY HEALTH: OK Firefighters Seek Class Cert. in Weiner Suit -------------------------------------------------------------- Oklahoma Firefighters Pension and Retirement System, Lead Plaintiff in the lawsuit entitled ERIC WEINER, Individually and on Behalf of All Others Similarly Situated v. TIVITY HEALTH, INC., DONATO TRAMUTO, GLENN HARGREAVES and ADAM HOLLAND, Case No. 3:17-cv-01469 (M.D. Tenn.), moves the Court for an order: (1) certifying this matter as a class action pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure; (2) appointing it Class Representative; and (3) appointing Cohen Milstein Sellers & Toll PLLC as Class Counsel.[CC] Lead Plaintiff Oklahoma Firefighters Pension and Retirement System is represented by: Benjamin A. Gastel, Esq. J. Gerard Stranch, IV, Esq. BRANSTETTER, STRANCH & JENNINGS, PLLC 223 Rosa L. Parks Avenue, Suite 200 Nashville, TN 37203 Telephone: (615) 254-8801 Facsimile: (615) 255-5419 E-mail: gerards@bsjfirm.com beng@bsjfirm.com - and - Steven J. Toll, Esq. Daniel S. Sommers, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Ave. NW, Fifth Floor Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 E-mail: stoll@cohenmilstein.com dsommers@cohenmilstein.com - and - Christina D. Saler, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC Three Logan Square, 1717 Arch Street, Suite 3410 Philadelphia, PA 19103 Telephone: (267) 479-5707 Facsimile: (267) 479-5701 E-mail: csaler@cohenmilstein.com - and - Alice Buttrick, Esq. Jessica (Ji Eun) Kim, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 88 Pine Street, Fourteenth Floor New York, NY 10005 Telephone: (212) 838-0979 Facsimile: (212) 838-7745 E-mail: abuttrick@cohenmilstein.com jekim@cohenmilstein.com Plaintiff Eric Weiner is represented by: Eduard Korsinsky, Esq. LEVI & KORSINSKY, LLP 30 Broad Street, 24th Floor New York, NY 10004 Telephone: (212) 363-7500 Facsimile: (212) 363-7171 E-mail: ek@zlk.com - and - James A. Holifield, Jr., Esq. HOLIFIELD JANICH RACHAL & ASSOCIATES, PLLC 11907 Kingston Pike, Suite 201 Knoxville, TN 37934 Telephone: (865) 566-0115 Facsimile: (865) 566-0119 E-mail: aholifield@holifieldlaw.com The Defendants are represented by: Brandon R. Keel, Esq. Jessica Perry Corley, Esq. Lisa R. Bugni, Esq. KING & SPALDING LLP 1180 Peachtree Street NE Atlanta, GA 30309-3521 Telephone: (404) 572-4717 Facsimile: (404) 572-4677 E-mail: bkeel@kslaw.com jpcorley@kslaw.com lbugni@kslaw.com - and - Joseph B. Crace, Jr., Esq. Wallace Wordsworth Dietz, Esq. BASS, BERRY & SIMS 150 Third Avenue South, Suite 2800 Nashville, TN 37201 Telephone: (615) 742-7896 Facsimile: (615) 742-2700 E-mail: jcrace@bassberry.com wdietz@bassberry.com TO-RISE LLC: Seeks Prelim. Approval of Lora Suit Settlement ----------------------------------------------------------- The parties in the lawsuit captioned EILEEK LORA, JEFFREY GOMEZ, SERGIO MOSCOSO, BERNARDO MENDOZA, NICHOLAS MITRANO, KEVIN MANCO, and WILMER MARIN GARCIA, on Behalf of Themselves and All Others Similarly Situated v. TO-RISE, LLC and JORGE SALCEDO a/k/a JORGE E. SALCEDO JR., Case No. 16-cv-03604 (E.D.N.Y.), jointly renew their motion for an order: (i) preliminarily approving their Settlement Agreement and Release; (ii) certifying the proposed Class for the purposes of settlement; (iii) approving and directing the distribution of the proposed Notice of Settlement of Class Action and the proposed Claim Form and Release; (iv) setting the date and time for a fairness hearing; and (v) appointing the Law Offices of William Cafaro as Class Counsel.[CC] The Plaintiffs are represented by: William Cafaro, Esq. LAW OFFICES OF WILLIAM CAFARO 108 West 39th Street, Suite 602 New York, NY 10018 Telephone: (212) 583-7400 Facsimile: (212) 583-7401 E-mail: BCafaro@CafaroEsq.com TOYOTA: $33.6MM Power-Sliding Door Class Action Settlement Okayed ----------------------------------------------------------------- Courthouse News Service reported that a federal judge granted final approval of a $33.6 million settlement Toyota reached in a class action alleging defects in the power-sliding rear passenger doors of Sienna minivans. The settlement includes $7 million in attorney fees, costs and incentive awards. A copy of the Ruling is available at: https://is.gd/RPS3iZ TREASURY WINE: Court Grants Costs of Stayed Class Action -------------------------------------------------------- Lawyerly reports that the Federal Court has granted Treasury Wine Estates costs of a stayed class action filed against it by a firm owned by solicitor Mark Elliot. [GN] U.S. SUGAR: Class Action Calls for End of Sugarcane Burns --------------------------------------------------------- Gianna Caserta, writing for WPBF, reports that Florida's sugar industry is at the center of a new class-action lawsuit. The lawsuit calls for an end to sugarcane burns, along with the recovery of economic damages and health monitoring for residents. "The burning does a lot of bad things, they discolor homes and cars. The black snow is across our properties," said Clover Coffie, Belle Glade resident. Clover Coffie has lived in Belle Glade most of his life. "I see far too many children on breathing devices including my own grandchild. I hear from too many parents who are concerned about their children during the sugarcane burning season," said Coffie. He is one of tens of thousands of residents part of a federal lawsuit filed by The Berman Law Group against U.S. Sugar Corporation, Florida Crystals Corporation, and eleven other defendants. In order to accelerate harvesting speeds, sugarcane companies set large areas of sugarcane fields on fire, like in this video provided to us by the plaintiff's law firm. The lawsuit claims the smoke and ash that fills the air during these seasonal burns may be linked to several serious health problems, including respiratory issues, as well as property damage. "The community itself is dying, the black snow that falls from the sky, people are breathing it in, they are getting sicker and sicker everyday," said Fred Taylor, Belle Glade resident and Retired Professional Football Player. Former Florida State Senator Joseph Abruzzo says there are safer alternatives. "What they do in Brazil, and this creates more jobs, they chop the cane. There is also what Frank alluded to, there is technology, where there are machines that take the waste and put it back into the ground for fertilizer," said Abruzzo. We reached out to several of the defendants for comment and received a statement from Florida Crystals Corporation. The company said they were unable to comment on any specifics but said "…Our pre-harvest activities are regulated and permitted by the Florida Forest Service, the State agency that regulates and permits the 90,000 prescribed burns across the State each year that are conducted for wildlife protection, land clearing, agriculture and more." [GN] UBS PAINEWEBBER: 5th Cir. Affirms Dismissal of Class Action ----------------------------------------------------------- Shearman & Sterling LLP, in an article for Lexology, reports that on May 24, 2019, the United States Court of Appeals for the Fifth Circuit affirmed in a unanimous decision the dismissal of a putative securities class action against a major financial services company and several of its subsidiaries in relation to their alleged involvement in Enron's "financial manipulation." Lampkin et al. v. UBS PaineWebber Inc. et al., No. 17-20608 (5th Cir. May 24, 2019). Plaintiffs -- (i) individual retail-brokerage customers of defendants, and (ii) former Enron employees who acquired Enron stock options through Enron's stock option plan -- alleged defendants violated Section 11 and Section 12 of the Securities Act of 1933 (the "Securities Act") by acting as an underwriter and seller of Enron securities and were liable for materially false and misleading statements contained in Enron's prospectuses and registration statements. Plaintiffs also alleged defendants violated Section 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 thereunder by failing to disclose their alleged knowledge of Enron's alleged manipulation of its "public financial appearance." Plaintiffs alleged that defendants collectively were a "single, integrated business venture" that "maintained a 'mutually self-serving relationship [with Enron] that took precedence over and conflicted with the interests of [defendants'] retail customers.'" According to plaintiffs, the brokerage subsidiary defendant that operated Enron's employee stock option plan acted as a "seller" and "underwriter" of Enron securities within the meaning of the Securities Act through its administration of the plan, and as such is liable for "materially false statements contained in the Enron prospectuses and registration statements" related to Enron's stock. Plaintiffs further alleged that defendants "had knowledge of Enron's 'financial chicanery' because of [their] 'long standing banking history with Enron,'" which allegedly included "material nonpublic information about Enron's financial manipulations," and that such knowledge created a "duty to disclose that information" to plaintiffs. Plaintiffs highlighted several Enron transactions that defendants participated in that allegedly amounted to "devices and schemes designed to inflate the appearance of Enron's financial status," and argued that defendants had a duty to disclose the material nonpublic information they obtained through their participation in these actions and failed to do so in violation of the securities laws. The Fifth Circuit first considered in the context of plaintiffs' Securities Act claims whether the Enron employee stock option plan constituted a sale of securities, thus bringing the plan within the purview of the Securities Act. Plaintiffs argued that "the district court erred by conflating employee stock ownership plans and employee stock option plans" in determining that the plans did not constitute a "sale" under the securities laws. Citing the Supreme Court's decision in Int'l Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 558 (1979), the Fifth Circuit noted that "an employee's 'participation in a noncontributory, compulsory pension plan' is not the equivalent of purchasing a security." The Court further noted that post-Daniel, the SEC issued releases clarifying that "for the registration and antifraud provisions of the 1933 Act to be applicable, there must be an offer or sale of a security," and that although "plans under which an employer awards shares of its stock to covered employees at no direct cost to the employees" do award securities, "there is no 'sale' in the 1933 Act sense to employees, since such persons do not individually bargain to contribute cash or other tangible or definable consideration to such plans." Noting that "[c]onsistent with the interpretations of the SEC, courts have extended Daniel to compulsory and involuntary employee stock option plans," the Fifth Circuit stated that the central question is "whether employees made an investment decision that could be influenced by fraud or manipulation." The Court found that where the employees' participation is an "incident of employment" -- as was alleged by plaintiffs -- there is "no bargained-for exchange that requires an affirmative investment decision" and that "under Daniel, the 'exchange of labor' is insufficient." Further, the Court determined that plaintiffs' claim is based entirely on the grant of the options, rather than an exercise of those options, an action which "required no affirmative investment decisions by plaintiffs." As such, the Fifth Circuit affirmed the dismissal of the Securities Act claims. Turning to the brokerage customer plaintiffs' Exchange Act claim, the Fifth Circuit held that plaintiffs failed to sufficiently allege that defendants had a duty to disclose or that they possessed "material, nonpublic knowledge." Plaintiffs alleged that the defendant brokerage firm they used (then a separate legal entity, but presently a subsidiary defendant of the financial institution defendant) and another subsidiary defendant "united in a joint venture" in an effort to establish that the various defendant entities shared knowledge and a duty to disclose any materially misleading information of which they were aware. The Court rejected this argument, citing Giancarlo, et al. v. UBS Financial Services Inc., et al., No. 16-20663 (5th Cir. Feb. 26, 2018), a recent unpublished decision by another panel of the Fifth Circuit that heard a related case (previously discussed in a prior post). Although not bound by the decision, the Fifth Circuit adopted the reasoning from Giancarlo, finding it "persuasive," and held that plaintiffs failed to adequately allege defendants operated as a joint venture (as there was no sharing in loss or profits and no joint control) and failed to advance any persuasive theories to "aggregate the actions and knowledge of the defendant entities for purposes of assessing liability." The Court next considered plaintiffs' argument that defendants' alleged "special relationship" with its retail clients (plaintiffs) and issuer client (Enron) created a duty to disclose material nonpublic information to plaintiffs. Plaintiffs cited as support the Supreme Court's decision in Affiliated Ute Citizens of Utah v. U.S., 406 U.S. 128 (1972), which held that defendants' "special relationship" with plaintiffs gave rise to a duty of disclosure. In distinguishing Affiliated Ute, the Fifth Circuit found that plaintiffs failed to "allege an analogous relationship" in the instant case because plaintiffs were relying on "grouping" entities with "separate legal statuses" in order to cure the lack of evidence against any particular entity. The Court held that because plaintiffs failed to allege the existence of a joint venture, plaintiffs must demonstrate that the subsidiaries independently knew of the alleged material information, something plaintiffs "fundamentally fail[ed] to establish." According to the Court, the "lack of particularized allegations that any defendant entity possessed material information about Enron's finances and a duty of disclosure [were] fatal to their claim." The Court similarly rejected plaintiffs' argument that the securities industry's self-regulatory organization rules imposed a duty to disclose, finding that although the brokerage firm defendant had a duty to disclose based on the regulatory organization's rules, plaintiffs failed to allege that the brokerage firm defendant possessed any knowledge to disclose. According to the Court, it was the other subsidiary defendants that participated in the transactions that would have the alleged knowledge about the accounting issues. But because plaintiffs could not establish the existence of a joint venture between defendants and there were no allegations that the information was actually shared between them, defendants did not have a duty to disclose. Finally, the Court considered whether the district court had properly dismissed the third amended complaint with prejudice. As in Giancarlo, plaintiffs argued that the district court abused its discretion and that the reason plaintiffs failed to timely amend their complaint was due to the depositions of Enron's former CFO and defendants' expert, which occurred after the deadline to amend and from which plaintiffs sought additional information. The Fifth Circuit rejected this argument, emphasizing that plaintiffs failed to clarify how their amended allegations, if permitted, would have provided support for "their theory that [the brokerage firm and the other subsidiary] participated in a joint venture." The Fifth Circuit thus determined that the district court did not abuse its discretion in refusing to grant leave to amend and affirmed the district court's dismissal. Lampkin v. UBS PaineWebber Inc. [GN] UMB BANK: Garrett Seeks to Certify Class of Loan Originators ------------------------------------------------------------ The Plaintiffs in the lawsuit styled STEVE L. GARRETT and M. GWEN GOINS, individually, and on behalf of all others similarly situated v. UMB BANK, N.A., Case No. 4:19-cv-00369-ODS (W.D. Mo.), seek conditional collective action certification of the this collective: All current and former mortgage loan originators who worked for Defendant at any time from three years prior to the filing of the Complaint through the present. The Plaintiffs filed suit against the Defendant alleging that it had a policy and practice of failing to properly pay the Plaintiffs, and similarly situated employees, overtime wages in violation of the Fair Labor Standards Act. The Plaintiffs also asks the Court to enter an order: a. appointing Plaintiffs Steve L. Garrett and M. Gwen Goins as collective action representatives; b. appointing McClelland Law Firm, P.C. as counsel for the putative collective action members; c. ordering the Defendant to produce this information for all putative collective action members in a Microsoft Excel document within fourteen (14) days of the Court's Order on this motion: (a) full name; (b) last known address; (c) last known phone number; (d) last known e-mail address; (e) date(s) of employment; and (f) location(s) of employment; d. approving the FLSA Collective Notice and Consent Form ("Notice") attached to the Suggestions as Exhibit E; e. ordering that the Notice be mailed via first-class mail and electronic mail to putative collective action members within 45 days of the Order, and setting a 90-day opt-in period (after the mailing of the Notice) for those persons to opt-in; f. ordering the posting of the Notice of the pending suit in conspicuous locations at Defendant's office locations where putative collective action members are employed (including break room bulletin boards or bulletin boards where job notices are posted) during the opt-in period; and g. allowing two reminder notices to putative collective action members at least 30 days before the opt-in deadline.[CC] The Plaintiffs are represented by: Ryan L. McClelland, Esq. Michael J. Rahmberg, Esq. MCCLELLAND LAW FIRM, A PROFESSIONAL CORPORATION The Flagship Building 200 Westwoods Drive Liberty, MO 64068-1170 Telephone: (816) 781-0002 Facsimile: (816) 781-1984 E-mail: ryan@mcclellandlawfirm.com mrahmberg@mcclellandlawfirm.com UNIFUND CCR: Knaak Moves for Class Certification Under Damasco -------------------------------------------------------------- Richard Knaak moves the Court to certify the class described in the complaint of the lawsuit styled RICHARD KNAAK, Individually and on Behalf of All Others Similarly Situated v. UNIFUND CCR, LLC, KOHN LAW FIRM, S.C., GLOBAL CREDIT & COLLECTION CORP., and DISTRESSED ASSET PORTFOLIO III, LLC, Case No. 2:19-cv-00952-JPS (E.D. Wisc.), 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 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 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. Denise L. Morris, 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 dmorris@ademilaw.com UNITED STATES: Faces Driever Suit over Inmates' Civil Rights ------------------------------------------------------------ A class action complaint has been filed against the government of the United States of America, the director of Federal Bureau of Prisons, Judy Upton and others for alleged violations of civil rights. The case is captioned DRIEVER v. UNITED STATES OF AMERICA et al, Case No. 1:19-cv-01807-UNA (D.D.C., June 19, 2019). This civil rights lawsuit is now assigned to Hon. Judge Timothy J. Kelly. The Federal Bureau of Prisons is a law enforcement agency that oversees the custody, control, and care of individuals incarcerated in the federal prison system of the United States. [BN] The Plaintiff appears pro se. UNITED STATES: Sued for Discriminating Against Asylum-Seekers ------------------------------------------------------------- Ryan J. Farrick, writing for Legal Reader, reports that asylum-seekers kept behind bars in the Deep South are launching a class action lawsuit against the government. The lawsuit, led by the Southern Poverty Law Center and American Civil Liberties Union, claims the Trump administration is categorically discriminating against asylum-seekers. According to The Los Angeles Times, detention in the Deep South carries its own set of problems -- detention centers are often isolated, with scant access to lawyers and no opportunity for inmates to obtain parole. In a statement published on its website, the SPLC claims that asylum-seekers have followed legal procedures to gain entry into the United States but are now being denied fundamental rights. "Like hundreds of people being held in multiple ICE detention centers in the Deep South, our asylum-seeking plaintiffs are being punished for following the law," said SPLC Senior Supervising Attorney Luz Virginia Lopez. "They followed the legal checklist by first presenting themselves at a point of entry, and this is how America is paying them back—with cruelty and disrespect for the law." Furthermore, the SPLC claims that parole approvals are hitting new lows under the direction of President Donald Trump. Last year -- out of 130 asylum-seekers to petition for parole in one Immigration and Customs Enforcement district -- only two individuals won conditional release. Parole statistics in ICE's New Orleans field district are particularly bad. In 2016, 75% of parole requests were approved -- in 2018, that figure had plummeted to 1.5%. Southern Poverty Law Center staff attorney Laura Rivera said ICE's decision to ship detainees South likely isn't without motive. "When ICE makes strategic decisions about where to ship hundreds of asylum seekers, it has to know the Louisiana field office is not granting relief on parole to anybody," Rivera said. Rivera also echoed contemporary wisdom on incarceration, arguing that keeping people behind bars does little good for anyone. "Across this nation, there is consensus building that incarceration does much more harm than good to our communities," she said. "Yet, as criminal justice reform leads to lower rates of incarceration, this administration is filling jails and prisons with record numbers of migrants -- more than 53,000 at last count. It's causing untold human suffering, and it's violating the law." River and the SPLC's complaint notes that, along with potentially breaking the law, refusing parole to asylum-seekers costs American taxpayers a lot of money. "ICE's refusal to consider the release of these asylum-seekers on a case-by-case basis violates federal law, costs taxpayers millions of dollars each month, and causes untold suffering to the men and women who seek legal protection inside the United States," the lawsuit states. The L.A. Times notes that Rivera and the SPLC filed suit on behalf of detainees across a swath of states, including Alabama, Arkansas, Louisiana, Mississippi and Tennessee. Some migrants party to the suit have put forward claims of immense suffering. One Cuban dissident, whose name is simply abbreviated 'Y.A.L.,' was repeatedly denied parole even though his wife lives in Miami and is a legal, permanent U.S. resident. Y.A.L., notes the Times, has gout. Denied proper treatment and a 'medically suitable diet' down south, Y.A.L.'s condition progressed to the point that he lost the ability to walk, bathe or use the toilet without assistance. Other class members include Adrian Toledo Flores, a Cuban pharmacy technician who fled the country -- Toledo-Flores, says the L.A. Times, was beaten by government agents after refusing to withhold prescription medication from a client. And 18-year old M.R.M.H -- who fled Honduras after being brutalized by MS-13 gang members -- isn't able to access a diet that accounts for extreme allergies. Consequently, eating in ICE facilities has made the teenager break out in hives and struggle breathing. One physician even noted that M.R.M.H. is at "extremely high risk of dying in ICE custody from a preventable condition." While ICE has stressed that its 'commitment' to detainees' health, the ACLU says its suing to stop the sorts of abuses recounted by those fleeing dictatorship and gang violence. "Here in Louisiana, thousands of immigrants and asylum-seekers are now being exposed to brutal and inhumane conditions in our jails and prisons—with virtually no hope of release," said Bruce Hamilton, a staff attorney with the ACLU of Louisiana. "We're suing to stop these abuses and hold the Trump administration accountable for following the law." Meanwhile, the SPLC has continued to charge the administration with shuffling migrants to jurisdictions where it's practically impossible for them to garner relief. "There's no rhyme and reason to why they're being brought to Mississippi from the border," Rivera said, "other than that beds are available, the price is right, and it's in a hostile jurisdiction." [GN] UNITED STATES: Westbrook Suit Transferred to District of Nevada --------------------------------------------------------------- The case, Elena Westbrook individually and on behalf of all similarly situated individuals, the Petitioner, vs. U.S. Department of Justice; Attorney General William Barr. in his official capacity as the Attorney General of the United States; U.S. Citizenship and Immigration Services; U.S. Immigration and Customs Enforcement; Thomas D Homan, in his official capacity as the Senior Official Performing the Duties of the Director of ICE; David A. Marin, in his official capacity as the Director of the Los Angeles Field Office of ICE; Thomas P Giles, in his official capacity as the Deputy Field Office Director of Detention and Removal Operation for Disctrict 23; Robert M Culley, in his official capacity as the Director of the Salt Lake City Field Office of ICE; and U.S. Department of Homeland Security, the Respondents, Case No. 2:19-cv-01198 (Filed Feb. 15, 2019), was transferred from the United States District Court for the Central District of California, to the United States District Court for the District of Nevada (Las Vegas) on July 3, 2019. The District of Nevada Court Clerk assigned Case No. 2:19-cv-01160-KJD-BNW to the proceeding. The case is assigned to the Hon. Judge Kent J. Dawson. The Justice Department is a federal executive department of the U.S. government, responsible for the enforcement of the law and administration of justice in the United States, equivalent to the justice or interior ministries of other countries.[BN] Attorneys for the Petitioner are: Nicolette Glazer, Esq. LAW OFFICES OF LARRY R GLAZER 1875 Century Park East No. 700, Suite 700 Century City, CA 90067 Telephone: (310) 407-5353 E-mail: nicolette@glazerandglazer.com Attorneys for the Respondents: Jennifer R Jacobs, Esq. Karen Yumi Paik, Esq. AUSA-OFFICE OF US ATTORNEY 300 North Los Angeles Street Suite 7516 Los Angeles, CA 90012 Telephone: (213) 894-6167 Facsimile: (213) 894-7819 - and - Mary Larakers, Esq. DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION P.O. Box 868 Washington, DC 20044 Telephone: (202) 353-4419 E-mail: mary.l.larakers@usdoj.gov UNITEDHEALTHCARE: Court Dismisses M. Dane's CUTPA Suit ------------------------------------------------------ The United States District Court for the District of Connecticut issued an Order granting Defendant's Motion to Dismiss in the case captioned MARK DANE, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. UNITEDHEALTHCARE INSURANCE COMPANY, et al., Defendants. No. 3:18-cv-00792 (SRU).(D. Conn.). Dane brings claims on behalf of a purported nationwide class of current and former insureds who purchased United Medigap coverage. He asserts seven Connecticut-law causes of action: (1) violation of the Connecticut Unfair Trade Practices Act (CUTPA),(2) breach of contract (3) unjust enrichment (4) breach of the implied covenant of good faith and fair dealing (5) money had and received (6) conversion and (7) statutory theft. He also asserts one District of Columbia claim: violation of the District of Columbia's Consumer Protection Procedures Act (CPPA). Dane argues the following: (1) AARP Trust is wholly dominated and controlled by AARP, Inc., and United pays AARP in the form of a premium rebate (2) individual consumers, including himself, are harmed by Defendants' scheme because they are forced to absorb the costs of the inducement in the form of a 4.9% surcharge on top of premiums (3) the most current version of the AARP kickback has been kept secret and confidential (4) Defendants' reliance on the filed rate doctrine, which bars suits against regulated utilities grounded on the allegation that the rates charged by the utility are unreasonable, is misplaced because the case involves only state law claims; and (5) Defendants violated CUTPA or CPPA by mischaracterizing the alleged premium rebate to AARP as a royalty. Dane also raises several common law claims. The Court rejects Dane's arguments and grant Defendants' motion to dismiss. The AARP Royalty is not an Unlawful Premium Rebate Connecticut's anti-rebate statute prohibits any insurance company doing business in Connecticut from paying or allowing or offering to pay or allow, as inducement to insurance, any rebate of premium payable on the policy or any valuable consideration or inducement not specified in the policy of insurance. The District of Columbia's anti-rebate statute is similar. The FAC does not provide facts to support a theory that a payment to AARP induces AARP members to choose United Medigap overage over other insurance options because individual insureds are not receiving any monetary award for choosing United. AARP is a distinct entity from AARP Trust, which is the group policyholder. See Agreement and Declaration of Trust (Agreement) AARP Trust reimburses United only for administrative expenses, rather than for referrals. The payments that AARP makes to United are for use of AARP's intellectual property. The alleged rebate is not paid to the ultimate insureds, so United cannot be said to be influencing individual insured's purchasing decisions. Because Dane does not plausibly allege that policyholder AARP Trust is induced in any way, the royalty payment cannot plausibly be viewed as a premium rebate. Dane's Premium Rebate Claim is Barred by the Filed Rate Doctrine Even if Dane's premium rebate theory were plausible, the filed rate doctrine precludes this lawsuit. The filed rate doctrine bars suits against regulated utilities grounded on the allegation that the rates charged by the utility are unreasonable. It holds that any rate approved by the governing regulatory agency is "per se reasonable and unassailable in judicial proceedings brought by ratepayers. The Second Circuit has held that "two companion principles lie at the core of the filed rate doctrine: first, that legislative bodies design agencies for the specific purpose of setting uniform rates, and second, that courts are not institutionally well suited to engage in retroactive rate-setting. The Filed Rate Doctrine can apply to Connecticut state law claims Although Connecticut has not used the filed rate doctrine to bar a plaintiff's claim, in Lentini v. Fidelity National Title Insurance Co. of New York, the District of Connecticut recognized the filed rate doctrine as it applies to state law claims. In Lentini, District Judge Alvin W. Thompson held that the application of the filed rate doctrine is limited to preventing a plaintiff from bringing a cause of action whenever either purpose underlying the filed rate doctrine is implicated. Lentini v. Fid. Nat. Title Ins. Co. of New York, 479 F.Supp.2d 292, 300 (D. Conn. 2007) (quoting Ice Cream Liquidation, Inc. v. Land O'Lakes, Inc., 253 F.Supp.2d 262, 275 (D. Conn. 2003)). In addition, courts in New York and Texas have relied on the filed rate doctrine to dismiss challenges claiming damages relating to United's royalty payment analogous to the claims here. Roussin v. AARP, Inc., 664 F.Supp.2d 412, 417-18 (S.D.N.Y. 2009), aff'd sub nom. Roussin v. AARP, 379 F. App'x 30 (2d Cir. 2010). In Roussin, a member of a non-profit corporation brought a class action against the corporation, trust, and trustees, alleging breach of fiduciary duty with regard to defendants' approval of certain health insurance premium rates charged to members who participated in insurance plans offered by defendants. The Defendants moved to dismiss for failure to state a claim. The court held that the filed rate doctrine barred plaintiff's claims because, although the claims were styled as breach of fiduciary duty and gross negligence, the plaintiff essentially sought relief from an injury allegedly caused by her payment of health care premiums, including an Allowance. Therefore, the court held, the claims were barred by the filed rate doctrine. The decision was then affirmed by the Second Circuit by summary order. Accordingly, the filed rate doctrine applies to Dane's state law claims in this case. Principles Underlying the Filed Rate Doctrine The non-justiciability strand of the filed rate doctrine, as set forth by the Second Circuit that courts should not involve themselves in the rate-making process or determinations of the reasonableness of such filed rates is implicated by the complaint in this case. In Roussin, the district court agreed with defendants' assertion that the filed rate doctrine barred plaintiff's claims because she was essentially challenging the reasonableness of the cost to her of AARP-sponsored health insurances rates, which the New York State Department of Insurance had approved. The court held that although the Complaint focuses its attention on the impropriety of the AARP Allowance and its method of calculation, such a dispute necessarily challenges the rate. As a result, plaintiff is challenging United's insurance premiums, albeit one particular element of the premiums, and thus her claims are barred by the filed rate doctrine. Because he is seeking relief for an injury allegedly caused by the payment of a rate on file with a regulatory commission, Dane's claims are barred by the filed rate doctrine. Dane Does Not Plead a Viable CUTPA or CPPA Claim Even if Dane's claims could survive the conflict with the filed rate doctrine, the FAC would be dismissed because Dane fails to plead a viable CUTPA or CPPA claim under Connecticut and the District of Columbia consumer protection laws. The CPPA Does Not Apply to Dane's Case The District of Columbia Consumer Protection Procedures Act (CPPA), which establishes an enforceable right to truthful information from merchants about consumer goods and services that are or would be purchased, leased, or received applies only to goods and services that have been purchased, leased, or received within the District of Columbia. Dane cites to Shaw v. Marriott Int'l, Inc., 474 F.Supp.2d 141, 149-50 (D.D.C. 2007) to support the proposition that the CPPA has extraterritorial reach in this circumstance. But Shaw concerns the issue how to apply District of Columbia's choice-of-law principles to District of Columbia causes of action in cases involving diverse parties, and therefore does not apply to these facts. Accordingly, CPPA does not apply to Dane's purchase of insurance coverage in Connecticut. Because Dane admits that he was enrolled in United Medigap in Connecticut and nowhere alleges that he purchased or received his policy or any other goods or services in the District of Columbia, the CPPA claim must be dismissed. Defendants Did Not Engage in Misrepresentation In addition, as discussed above, Dane does not plausibly allege that AARP Trust is induced in any way to purchase insurance, so the royalty payment cannot be viewed as a premium rebate. Accordingly, AARP did not misrepresent or fail to disclose that the royalty was an unlawful premium rebate, so Dane's CUTPA and CPPA claims fail. Dane Does Not Allege Loss Causation Required to Establish Standing To prevail on a CUTPA claim, in addition to proving that the defendant engaged in unfair or deceptive acts or practices in the conduct of trade or commerce, the plaintiff must also prove that each class member claiming entitlement to relief under CUTPA has suffered an ascertainable loss of money or property as a result of the defendants acts or practices. Furthermore, the ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief. Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation. A plaintiff must also prove that the ascertainable loss was caused by, or was a result of the prohibited act. Even if the AARP royalty constituted an unlawful premium rebate and Defendants misrepresented the nature of the royalty payment, Dane fails to establish standing under either CUTPA or CPPA. The fee that Dane and each insured pays is an expense of the program paid out of United's CID-approved Medigap premiums, and Dane paid only the legally required rate. Because Dane did not pay more than the CID-approved filed rate for the coverage he received, and he could not have purchased United Medigap coverage for any other rate, he cannot plausibly allege any loss caused by United's allocation of its premium revenue to program expenses. Although Dane argues that he would have chosen another insurance company had he known about the alleged misconduct, that allegation does not demonstrate that he suffered any loss from his selection of United Medigap insurance. Therefore, Dane does not meet the standing requirements under CUTPA or CPPA. Dane's Common Law Claims Fail In addition to consumer protection law claims, Dane also alleges (1) breach of the Medigap group insurance contract (2) unjust enrichment (3) breach of the covenant of good faith and fair dealing and (4) conversion. As discussed above, the royalty that Dane pays is not an additional cost, but is instead a program cost paid out of the CID-approved rate. Because the insurance contract does not prohibit royalty payments or program costs, Dane's breach of contract and breach of the covenant of good faith and fair dealing arguments both fail. In addition, Dane does not allege any benefit that Defendants unjustly retained because the royalty payment for use of AARP's intellectual property was openly disclosed. Finally, Dane did not have ownership rights to the 4.9% of his payment because that payment was a royalty for use of AARP's intellectual property. Thus, Dane's conversion argument also fails. The case is dismissed and the Clerk is directed to close the file. A full-text copy of the District Court's June 24, 2019 Order is available at https://tinyurl.com/y3cb2cc5 from Leagle.com. Mark Dane, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented bySean K. Collins, Sean K. Collins, Attorney at Law, Christopher Chagas Gold, Robbins Geller Rudman & Dowd LLP, Dorothy Antullis, Robbins Geller Rudman & Dowd LLP, Ex Kano S. Sams, II, Glancy Prongay & Murray LLP, Jeffrey O. McDonald, Hassett & George, PC, Lionel Z. Glancy, Glancy Prongay & Murray LLP, Louis N. George, Hassett & George, PC & Stuart A. Davidson, Robbins Geller Rudman & Dowd LLP. Unitedhealthcare Insurance Company & UnitedHealth Group, Inc., Defendants, represented byBrian D. Boyle, O'Melveny & Myers, Jean Elizabeth Tomasco, Robinson & Cole, Jennifer Sokoler, O'Melveny & Myers LLP, Meaghan Vergow, O'Melveny & Myers, LLP & Theodore J. Tucci, Robinson & Cole, LLP. UNITEDHEALTHCARE: Seeks Transfer of Class Action to Massachusetts ----------------------------------------------------------------- Law360 reports that a Miami attorney's proposed class action against UnitedHealthcare over cancer treatment coverage, which made the rounds of the Southern District of Florida when several judges passed on it due to possible conflicts, could be on the move again as the insurer argued on Monday for transfer to Massachusetts. Three judges recused themselves shortly after Richard Cole of Cole Scott & Kissane PA filed his April 3 complaint. [GN] VITAL ONE: Court OKs Filing of Amended Answer in Dickey Suit ------------------------------------------------------------ The United States District Court for the Eastern District of California issued an Order granting Defendant's Motion for Leave to File Amended Answer in the case captioned DAWN DICKEY, Plaintiff, v. VITAL ONE HEALTH PLANS DIRECT, LLC, a Florida limited liability company, Defendant. No. 1:18-cv-01399-DAD-BAM. (E.D. Cal.). The Plaintiff's complaint alleges as follows. Beginning in or around the fall of 2016, defendant contacted plaintiff on her cellular telephone using an automatic telephone dialing system (ATDS) without first obtaining plaintiff's consent. Plaintiff, on behalf of herself and others similarly situated, filed a class action complaint on October 10, 2018 seeking damages and other available legal or equitable remedies from defendant based on violations of the Telephone Consumer Protection Act (TCPA). The Defendant's motion for leave to amend seeks to add: (1) an arbitration defense and (2) a reasonable procedures defense to the TCPA's do-not-call regulations pursuant to 47 C.F.R. Section 64.1200(c)(2)(i). Plaintiff does not oppose defendant's motion for leave to amend to the extent that it seeks to add affirmative defenses articulated in the TCPA regulations, but does oppose defendant's motion to the extent that it seeks to add an arbitration defense. Whether Defendant Waived the Right to Arbitration The Ninth Circuit has held that a party seeking to prove waiver of a right to arbitrate must demonstrate: (1) knowledge of an existing right to compel arbitration (2) acts inconsistent with that existing right and (3) prejudice to the party opposing arbitration resulting from such inconsistent acts. In seeking leave to amend, defendant states that it issued a subpoena to Precise Leads, the entity from which defendant obtained plaintiff's contact information. Precise Leads responded on February 22, 2019, stating that plaintiff's contact information was obtained by AlliedCoverage LLC through its website. Thus, defendant avers that it only became aware of a potential arbitration defense on or about April 17, 2019. In her opposition to defendant's motion, plaintiff does not dispute that defendant was unaware of a potential right to arbitration before April 2019. Plaintiff's objection that defendant litigated this case for eight months before asserting an arbitration defense therefore does not constitute an act inconsistent with the arbitration right because defendant did not have knowledge of the right during that time. At the hearing on the pending motion, plaintiff's counsel argued for the first time that defendant should have been aware of a potential arbitration defense earlier than April 2019 because defendant had a contract with Precise Leads, was in direct communication with Precise Leads, and could have subpoenaed Precise Leads earlier than it did. Even if these representations were true, however, such a delay is not sufficient on its own to demonstrate waiver of the arbitration right: plaintiff fails to argue that she has suffered any prejudice by these purportedly inconsistent efforts to enforce the arbitration provision. The Plaintiff has failed to meet her heavy burden of showing that defendant had prior knowledge of a potential right to arbitration or engaged in acts inconsistent with such a right. Most critically, plaintiff has failed to demonstrate or even argue that she would suffer prejudice from any purportedly inconsistent acts. Accordingly, the court finds that defendant did not waive the right to arbitrate. Whether Defendant's Arbitration Defense Has Merit The Plaintiff argues in the alternative that the arbitration defense is meritless, because with a month until the close of fact discovery, Vital One has not produced a single document evidencing an agreement to arbitrate. Plaintiff objects to the addition of such a defense on various grounds, including that defendant's arbitration defense is based on the website of a third party, that the website is likely a browsewrap agreement and not a clickwrap agreement and that even if this third-party website did constitute an agreement to arbitrate, there is no evidence that defendant was an intended third-party beneficiary thereof. These objections would be relevant if a motion to compel arbitration were pending before the court. But in considering a motion for leave to amend, the court need not determine whether defendant will ultimately prevail on its arbitration defense. As explained above, the court's assessment regarding futility of amendment under Rule 15 is limited to whether it would be possible for the claim or defense to be proven under any set of facts. Under this framework, plaintiff has failed to demonstrate that amendment would be futile. Accordingly, the Defendant's motion for leave to file a first amended answer is granted. A full-text copy of the District Court's June 20, 2019 Order is available at https://tinyurl.com/y3exnf8q from Leagle.com. Dawn Dickey, an individual, on behalf of herself and all others similarly situated, Plaintiff, represented by Jarrett L. Ellzey , Hughes Ellzey, LLP, 1105 Milford Street,Houston, TX 77066, pro hac vice, John P. Kristensen -- john@kristensenlaw.com -- Kristensen Weisberg, LLP & David Levi Weisberg -- david@kristensenlaw.com -- Kristensen Weisberg LLP. Vital One Health Plans Direct, LLC, a Florida limited liability company, Defendant, represented by David Jay Kaminski -- KaminskiD@cmtlaw.com -- Carlson & Messer LLP & Stephen Albert Watkins -- watkinss@cmtlaw.com -- Carlson & Messer LLP. VOLUME SERVICES: Wins Prelim. Nod of Settlement in Raquedan Suit ---------------------------------------------------------------- The Hon. Lucy H. Koh grants the parties' motion for preliminary approval of third amended class action settlement in the lawsuit styled MONIQUE RAQUEDAN, et al. v. VOLUME SERVICES, INC., et al., Case No. 5:18-cv-01139-LHK (N.D. Cal.). These persons are certified as Class Members solely for the purpose of entering a settlement in this matter: All employees and applicants in the United States who applied for a job, promotion or job change with Centerplate for which a background check, including a consumer report, was conducted at any time from February 22, 2011, to March 31, 2019, excluding those individuals who already have resolved all the claims asserted in the Action, whether by settlement or adjudication, including, but not limited to, the settlement in Phlisida Gibbs v. Centerplate, Inc., et al., U.S.D.C., M.D. Fla., No. 8-17-cv-2187-EAK-JSS. Class Members will receive a Settlement Share unless they submit a valid and timely Opt-Out Form not later than 45 days after the mailing of the Fourth Amended Class Notice. Simpluris, Inc., is appointed to act as the Settlement Administrator, pursuant to the terms set forth in the Settlement. Plaintiffs Monique Raquedan and Ronald Martinez are appointed the Class Representatives. Shaun Setareh, Esq., Thomas Segal, Esq., and Farrah Grant, Esq., of Setareh Law Group are appointed Class Counsel. A final approval hearing will be held on November 14, 2019, at 1:30 p.m., to determine whether the Settlement should be granted final approval.[CC] VULTIK, INC: Fails to Produce Viable Client Leads, Wilshire Says ---------------------------------------------------------------- WILSHIRE LAW FIRM, P.L.C., a California corporation, the Plaintiff, vs. VULTIK, INC., an Iowa corporation; COREY SEAMAN, an individual, and DOES 1 to 10, inclusive, the Defendants, Case 19STCV21004 (cal. Super., June 17, 2019), alleges that Defendants breached a contract by failing to produce any viable personal injury leads and retaining a $50,000 payment despite the fact that they utterly failed to perform under the contract. The Plaintiff and Class Members sustained actual losses and damages. According to the complaint, Vultik, Inc. advertises itself on its website as the "No. 1 Lead Generation Company and Platform," proclaiming that "we don't only have the leads, we have the platforms and the support." Vultik's website further states: "you want a partner in the lead generation space that is consistent in their results," and "you're tired of being taken advantage of by over promise and under deliver providers." The Plaintiff hired Defendant to provide personal injury leads, paying Defendant $50,000 for Defendant's services. Defendant generated absolutely no qualifying leads. The few phone calls that Plaintiff did receive were from individuals who were trying to get hold of their insurance companies, and who were not interested in pursuing litigation. As a result of Defendants' wrongful actions and inactions, Plaintiff has lost its $50,000 investment in its entirety and has failed to receive the benefit of its bargain, which were actual leads. While Defendant Corey Seaman, the President and Chief Executive Officer of Vultik has promised repeatedly to refund the initial payment, he has utterly failed to do so. Although Seaman had promised to refund the $50,000 fee, several weeks passed without any payment being received. In early November, Mr. Seaman sent Plaintiff a text stating, "it should be there at latest mid next week." However, a week passed and no payment was received. When, on November 13, 2018, the Plaintiff informed Seaman that it had still not received the refund, Seaman sent a text stating, "I am at the doctors I have a tracking number at my office." When Plaintiff requested the tracking number from Seaman, Seaman did not respond. Id. On Friday, November 30, 2018, Plaintiff sent Seaman a text stating, "Hi Corey, we still have not received the refund. Please let me know if it was sent out. Thanks." Seaman did not respond, the lawsuit says.[BN] Attorneys for the Plaintiff are: Bobby Saadian, Esq. Thiago M. Coelho, Esq. WILSHIRE LAW FIRM 3055 Wilshire Blvd., 12th Floor Los Angeles, CA 90010 Telephone: (213) 381-9988 Facsimile: (213) 381-9989 E-mail: bobby@wilshirelawfirm.com thiago@wilshirelawfirm.com WAGEWORKS INC: Continues to Defend Securities Class Suit in Cal. ---------------------------------------------------------------- WageWorks, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on June 27, 2019, for the quarterly period ended March 31, 2019, that the company continues to defend a securities class action suit in California. On March 9, 2018, a putative class action was filed in the United States District Court for the Northern District of California (the "Securities Class Action"). On May 16, 2019, a consolidated amended complaint was filed by the lead plaintiffs asserting claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, against the Company, its former Chief Executive Officer and its former Chief Financial Officer on behalf of purchasers of WageWorks common stock between May 6, 2016 and March 1, 2018. The complaint also alleges claims under the Securities Act of 1933, as amended, arising from the Company's June 19, 2017 common stock offering against those same defendants, as well as the members of its Board of Directors at the time of that offering and the underwriters of the offering. WageWorks, Inc. engages in administering consumer-directed benefits (CDBs) that empower employees to save money on taxes, and provide corporate tax advantages for employers in the United States. WageWorks, Inc. was incorporated in 2000 and is headquartered in San Mateo, California. [*] Three Dozen Canadian Airports May Face Class Action Over Fees ----------------------------------------------------------------- Carlos P Martins, Esq. -- cmartins@lexcanada.com -- and Emma Romano, Esq. -- eromano@lexcanada.com -- of Bersenas Jacobsen Chouest Thomson Blackburn LLP, in an article for Lexology, report that three dozen Canadian airports may be on the hook for fees charged to airline employees flying on employee travel passes. A proposed class action has been commenced in the Federal Court of Canada claiming compensation for airline employees who paid certain fees which the representative plaintiff claims should not have been paid pursuant to agreements signed by the defendant airports. Parties Class actions in Canada require a representative plaintiff to advance the claim on behalf of a class. In this case, the representative plaintiff is Brian Roy, a pilot employed by Air Canada who resides in Nova Scotia. Roy represents all airline employees who have travelled through various airports across Canada using an employee travel pass and paid certain fees charged by the airports. Each defendant is a corporation, society or non-profit corporation which operates a commercial airport in Canada. Basis of claims The representative plaintiff claims that the airports charged two fees -- an airport improvement fee (AIF) and a passenger facility fee (PFF). In doing so, the claim is that the airports breached their contractual obligations, as they had signed memorandums of agreement (MOAs) not to charge these fees to employees using travel passes. The representative plaintiff also claims that the airports have been unjustly enriched by charging these fees when they had agreed not to. Finally, the representative plaintiff claims that the airports misrepresented to the proposed class members that AIFs and PFFs were required, breaching Section 52 of the Competition Act, which provides as follows: 52 (1) No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect. The representative plaintiff claims that the airports are liable under three theories of liability. First, under the law of contract for breaching the MOAs regarding AIFs and PFFs. Second, under Section 36 of the Competition Act, which creates a private right of action for breaching the act. In this case, the class is attempting to claim for damage caused by the airports allegedly misrepresenting that employees using travel passes were required to pay AIFs and PFFs. Third, under the law of restitution, as the representative plaintiff claims the airport defendants were unjustly enriched by collecting the fees to the detriment of the class members. Fees The fees at issue in this litigation are imposed by airports to support capital improvements and cover operating expenses. AIFs are fees charged to passengers departing from an airport. These fees are levied by airports and the proceeds are usually intended for funding capital improvements. PFFs are fees levied by airports which fund capital improvements or operations of the airport. MOAs The three MOAs on which the representative plaintiff bases his claim for breach of contract are agreements to which the various defendant airports are parties. The representative plaintiff contends that these MOAs include contractual terms preventing the defendant airports from charging AIFs and PFFs to airline employees travelling on business or customers travelling on passes or other travel documents with certain industry discount codes. The claim also raises the issue that the MOAs were deliberately concealed from the representative plaintiff and states that a number of the defendant airports represented on their websites or in public documents that AIFs and PFFs are not charged to airline employees travelling on business. The claim also argues that the failure to produce the MOAs to the representative plaintiff on request was a breach of the duty of good faith because the defendant airports are in a business-to-consumer relationship with airline employees travelling through their airports. Privity of contract issue The claim specifically deals with the issue of privity of contract, because the plaintiffs are clearly not parties to the MOAs. The claim points to a number of exceptions to the rule that non-parties to a contract cannot enforce the rights and obligations agreed to therein, including the following: -- the claim states that the airlines were acting as agents for their passengers when signing the MOAs; -- the claim states that the MOAs were collateral contracts to those between the passengers and the airlines (a 'collateral contract' is one that induces a person to enter into a separate primary contract); and -- the claim states the MOAs were made for the benefit of the class member passengers. Jurisdiction The proposed class proceeding was commenced in the Federal Court of Canada, which has jurisdiction over actions pursuant to the Competition Act and aeronautics. Scope of proceedings and potential exposure As noted above, three dozen airports are named in the proposed class action. The claims states "it is estimated that each airline employee contributed at least $3,000 per year to the Defendant airports collectively". Should the airports be required to reimburse the AIFs and PFFs, this could amount to a significant damages award. Comment This proposed class proceeding will be of particular interest to airports, as it will illuminate whether private agreements among airports with respect to fees charged can be enforced by passengers. The proceeding will certainly cause airports to re-evaluate their public disclosure and practices with respect to AIFs and PFFs and consider whether their practices align with any agreements they are parties to. [GN] [*] U.S. Class Action Litigation Spending Hits Highest Level ------------------------------------------------------------ Holger Besch, Esq., of Seyfarth Shaw LLP, in an article for JDSupra, reports that News Flash: "Caveat Propraetor" or "Proprietor Beware" might soon replace "Eureka" as the state motto of California. Okay, that's just melodramatic hyperbole, but one can imagine that business owners in the state might feel similarly given California's increasingly hostile business environment. Ever expanding litigation exposure, particularly with regard to labor and employment class actions, weighs heavily on the minds of businesses operating in California, and increasingly nationwide. It should come as no great surprise that class action costs to U.S. companies are at their highest in a decade. According to a recent report by Carlton Fields, spending on class action litigation has reached its highest level in the United States since 2008, and that figure is expected to climb even further. [1] Of the $2.46 billion spent in 2018, labor and employment matters account for a full quarter of the total, with most legal departments highlighting wage and hour class actions as their chief area of concern.[2] Private equity firms should thus take note as these escalating expenses pose increased risks to their investments, particularly because of labor and employment law. Potential class action exposure may not even be immediately evident under the existing state of the law. Witness California's recent judicial and subsequent legislative erosion of piece-rate compensation methods (including mandating complex separate calculations for rest periods and potentially nonproductive time) in favor of hourly pay. Another example is the recent California Supreme Court decision in Dynamex Operations v. Superior Court, 4 Cal. 5th 903 (2018), which created a brand new standard for determining whether workers are misclassified as independent contractors in the state. The Supreme Court in Dynamex wove its opinion out of new cloth, imposing a never-before imposed standard that makes the classification of a worker as an independent contractor far more difficult. The subject is also presently before the California legislature as Assembly Bill 5 and awaits possible codification. Might such dramatic shifts in the law have been predicted? Perhaps not, but they were certainly in keeping with the judicial trend over the years to protect workers' base pay and to favor employment relationships over independent work -- all the more reason for private equity firms to seek the advice of seasoned labor and employment counsel familiar with upcoming trends in the law. So what are wary private equity firms and other proprietors in the state to do to guard against the growth in class-action costs? As part of the pre-investment due diligence process, investors seeking to mitigate class action risks should scrutinize potential labor and employment liabilities (and potential trends) at target companies ranging from such topics as exempt / nonexempt employee and independent contractor classification issues to compensation methods and pay equity issues. Post-acquisition, when more detailed information is available, investors can reduce potential exposure by conducting thorough labor and employment audits of acquired entities, particularly on wage and hour topics. Companies should also strongly consider implementing enforceable arbitration agreements with class action waivers (particularly in light the Supreme Court's Epic Systems decision) -- which can often substantially reduce potential exposure associated with class and collective action litigation. Even then, companies should be aware that California exempts Private Attorney General Act representative actions from such class action waivers. In short, the principle of Caveat Propraetor applies -- so it is imperative to know what potential liabilities are being bought in evaluating the terms of a deal. [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 ***