/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190724.mbx C L A S S A C T I O N R E P O R T E R Wednesday, July 24, 2019, Vol. 21, No. 147 Headlines 1-800 CONTACTS: Thompson Seeks Okay of $5.9MM Deal With Luxottica 3M COMPANY: Jones Sues over Defective Combat Arms Earplugs 880 DRY CLEANERS: Rodriguez Files FLSA Suit in S.D. New York ADVIA CREDIT: Approval of Class Action Settlement Sought AETNA LIFE: Winston Seeks OT Pay for Care Management Employees AIR LINE PILOTS: Pilot Instructor Class in Bishop Suit Certified ALABAMA LAW: Motley Seeks to Certify Class of Drivers ALLSTATE INSURANCE: McCleery Class Certification Denial Affirmed ALTA OPERATIONS: Court Approves $40K Settlement in Macancela Suit AMAZON.COM: Ortiz Seeks to Certify Class of Level 4 Shift Managers ARBITRATION FORUMS: Court Refuses to Strike White Knight's TAC BILL HAMILTON: Court Enters Protective Order in Lizarraga FLSA Suit BOEING COMPANY: Pilot Y Alleges Aircraft Design Flaw Cover-Up BOEING COMPANY: Pilot Z Alleges Aircraft Design Flaw Cover-Up CAPE REORTS GROUP: Fischler Files ADA Suit in S.D. New York CARMAX AUTO: McElhannon Suit Remanded to Calif. State Court CAVALRY PORTFOLIO: Walker Asserts Breach of FCDPA CENTENE CORP: Pension Fund Derivative Suit Temporarily Stayed CENTO FINE: Court Enlarges Dismissal Bid Deadlines in Snarr CENTRAL PORTFOLIO: Wilkins Files Class Suit Under FDCPA CHEERS HEALTH: Lashbrook Files Suit in S.D. Florida CHICAGO, IL: Court Denies Bid for Class Certification in Smith Suit CIRCLE K: Rodriguez Wage & Hour Suit Remanded to State Court CLINICA SIERRA: Torres Files Class Suit in California CREATIVE SUPPORTS: Webb Seeks Overtime Pay for In-Home Caretakers CREDIT SUISSE: Court Stays C. Laver Suit Pending 9th Cir. Ruling DEJA VU SERVICES: Roe Suit Moved to Northern Dist. of California DELTA AIR LINES: McGarry Appeals C.D. Cal. Order to Ninth Circuit DIGNITY HEALTH: Ct. Extends Settlement Documents Deadline in Klatt DR PEPPER/SEVEN UP: Villanueva Sues over Biometric Data Storage DYNAMIC RECOVERY: Reece Alleges Violation under FDCPA EAST WISCONSIN SAVINGS: Doberstein Moves for Class Certification EQUIFAX INC: Dawson Alleges Violation under ADA EQUILON ENTERPRISES: Dimercurto Suit Removed to N.D. California EVERYDAY BEAUTY: Court Denies Class Certification in Lin EVERYDAY BEAUTY: Lin's Retail Sales Workers Class Not Certified FCA US: Kingston Files Suit in C.D. California FEIN & SUCH: Faces Stabile Suit in District of New Jersey FORD MOTOR: K. Heslop Suit Remanded to Calif. Superior Court FOREVER LIVING: Dawson Alleges Violation under ADA FORSTER & GARBUS: Deutsch Files FDCPA Suit in New York FORT MYERS, FL: Miller Seeks to Certify Class in Sludge Dump Suit FOUR SEASONS: Intervenors' Bid to Remove Zyda as Class Rep Denied GASSEN COMPANY: Johnson Files Class Suit in Minnesota GATES CORPORATION: Class of Workers Certified in Lundine Suit GATES CORPORATION: Court OKs Conditional Certification in Lundine GENERAL MOTORS: Ramirez Sues Over Defective Steering System HANDS ON NURSING: Pa. Court Dismisses Jackson FLSA Suit HAT WORLD: Court Extends Time to File Discovery Plan in Harris HAYNEEDLE INC: Dawson Alleges Violation under Disabilities Act HERSHEY CO: Court Denies Bid for Summary Judgment in Clark Suit HOME DEPOT: Summary Judgment Denied in Utne Wage & Hour Suit HONDA: Faces Class Action Over Defective Infotainment Systems HSBC BANK: HSBC USA Dismissed from Vasquez WCM777 Ponzi Scheme Suit HYUNDAI: Proskauer Rose Attorneys Discuss 9th Cir. Ruling IDEAL COLLECTION: Daddieco Files Class Suit under FDCPA IGOURMET LLC: Conner Asserts Breach of Disabilities Act JANI-KING OF CALIFORNIA: Juarez Seeks to Certify Franchisee Class JENNINGS GATE: Revised Settlement Agreement Filed in Bueso Suit JUUL LABS: Must Face Class Action Over Addictive E-Cigarettes KNAUF GIPS: Bid to Certify Builder Class Denied KOHLBERG KRAVIS: Pruchnicki Suit Removed to District of Nevada LABORATORY CORPORATION: Mohamad Files Class Suit in North Carolina LG ELECTRONICS: Stangl et al. Sue over Defective Compressors LLR INC: Court Narrows Claims in M. Hill's MCPA Suit LOGISTICARE SOLUTIONS: Bunton Seeks to Certify Class Under FLSA LOS TRES MAGUEYES: Pontones Seeks to Certify FLSA Class MANNA PRO: Filing of Bid for Hale Deal Prelim Approval Due Aug. 30 MERIT RECOVERY: Court Denies Default Judgment Bid in Muldowney MIDLAND CREDIT: Roman-Negron Suit Moved to E.D. New York MONSANTO COMPANY: Myerses Sue over Sale of Herbicide Roundup NATIONAL BEVERAGE: Court Denies Sanction in L. Rice Suit NATIONAL COLLEGIATE: Fails to Protect Student-Athletes, Redd Says NATIONAL COLLEGIATE: Has Sacrificed Player Safety, Oubre Alleges NATIONAL COLLEGIATE: Sued by Rangel for Sacrificing Player Safety NECESSARY CLOTHING: Pilikyan Sues Over Illegal Marketing Texts NEW MEXICO: 10th Cir. Dismisses Amaro COA Petition NEW MOOSEJAW: Dawson Asserts Breach of Disabilities Act ONE WORLD: Rouze Sues over Defective Chemical Sprayer OTG MANAGEMENT: Ernest et al Seek Minimum Wage, OT Pay OZARK PIZZA: Willcutt Seeks Minimum Wage for Delivery Ddrivers PACIFIC MERITAGE: Faces Velasquez Suit in California Super. Court PAPA MURPHY'S: Cottle Moves to Certify Class of Store Managers PHL VARIABLE: Susman Named Fan-Kenney/Advanced Trust Suits Counsel POWERCOMM CONSTRUCTION: $177K Atty's Fees in Randolph Reversed PRESTIGE COSMETICS: Dawson Asserts Breach of Disabilities Act QUEENS COUNTY, NY: Court Dismisses H. Best's Suit QUEST DIAGNOSTICS: Woods Sues over Data Breach QUOGUE CLUB: Fischler Files ADA Suit in E.D. New York RBC CAPITAL: Court Dismisses Luis Couple's Securities Suit RHODE-NYC LLC: Slade Alleges Violation under Disabilities Act RICKART COLLECTION: Simmons Files FDCPA Suit in New Jersey SMURFIT KAPPA: Court Narrows Class Claims in Chavez Suit SOUTH JERSEY: Class Certification Denial in Cameron Suit Flipped SPEEDY CASH: Seeks Ninth Circuit Review of Ruling in Delisle Suit STARBUCKS: George et al Suit Transferred to S.D.N.Y. STATION SPORTS: Ruggeiro Seeks Unpaid Overtime Compensation STEMGENEX MEDICAL: Appeals Decision in Moorer Suit to 9th Circuit SUMMIT APPAREL: Dawson Alleges Violation under Disabilities Act SUN COMMUNITIES: Asbury Seeks to Certify Mobile Homeowners Class SUNEDISON SEMICONDUCTOR: Dismissal of Usenko ERISA Suit Affirmed THIRTY-ONE GIFTS: Dawson Alleges Violation under ADA TRANS WORLD: Rovinelli Suit Goes to Massachusetts Federal Court TREVENA INC: Block & Leviton Named Lead Counsel in Securities Suit UNITED FEDERAL: Settlement in Gunter Suit Has Final Approval UNITED STATES: Court Defers Ruling in Banos Final Order Relief Bid UNITED STATES: Lohmann Sues Over Unlawful Denial of Per Diem VILLAS PAPILLON: Class Certification Order in Fernandez Vacated WAL-MART: Alston, et al. Sue for Equal Pay for Female Staff WELLS FARGO: Loughran Moves to Certify Classes and Subclasses WISCONSIN: 8th Amendment & Due Process Claims in King May Proceed ********* 1-800 CONTACTS: Thompson Seeks Okay of $5.9MM Deal With Luxottica ----------------------------------------------------------------- The Plaintiffs in the lawsuit styled J THOMPSON, et al., Individually and on Behalf of All Others Similarly Situated v. 1-800 CONTACTS, INC., et al., Case No. 2:16-cv-01183-TC-DBP (D. Utah), ask the Court to enter the Preliminary Approval Order, to grant the Plaintiffs' Motion for Preliminary Approval of Settlement Agreement with Luxottica and to certify the Settlement Class. Plaintiffs J Thompson, Iysha Abed, Daniel J. Bartolucci, Alexa Bean, William P. Duncanson, Tyler Nance, Leia Pinto, Jill Schulson, and Edward Ungvarsky, move the Court for entry of an order: (i) granting preliminary approval of the Stipulation and Agreement of Settlement, dated July 5, 2019, between the Plaintiffs and Defendant Luxottica of America, Inc.; and (ii) certifying the Settlement Class. After extensive arm's-length negotiations by experienced counsel, the Plaintiffs have reached a settlement consisting of: (i) a substantial monetary component; and (ii) cooperation from Luxottica that will assist the Plaintiffs in the continued prosecution of this action against the non-settling defendants. On November 8, 2017, this Court preliminarily approved a proposed settlement with Arlington Contact Lens Service, Inc. and National Vision, Inc. providing for a payment of $7 million to a class of online contact lens purchasers. The Plaintiffs have reached a second settlement -- this time with Defendant Luxottica -- providing for a cash payment of $5.9 million to a class of online contact lens purchasers. In addition to the cash payment, which brings the total recovery thus far to $12.9 million, the Agreement provides for cooperation that will assist the Plaintiffs in the continued prosecution of this action against the non-settling defendants. The settlement class definition for the Luxottica agreement differs from the settlement class definition of the AC Lens agreement because it conforms to the time period covered by Luxottica's agreement with 1-800. 1-800 and Luxottica entered into a sourcing and services agreement that prohibited the parties from bidding in certain search advertising auctions, and obligated the parties to implement certain negative keywords, on December 23, 2013. Thus, the Settlement Class begins on that day.[CC] The Plaintiffs are represented by: Heather M. Sneddon, Esq. Jared Scott, Esq. ANDERSON & KARRENBERG 50 West Broadway, Suite 700 Salt Lake City, UT 84101 Telephone: (801) 534-1700 Facsimile: (801) 364-7697 E-mail: hsneddon@aklawfirm.com jscott@aklawfirm.com - and - David W. Mitchell, Esq. Brian O. O'mara, Esq. Steven M. Jodlowski, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-1058 Facsimile: (619) 231-7423 E-mail: DavidM@rgrdlaw.com bomara@rgrdlaw.com sjodlowski@rgrdlaw.com - and - Scott E. Gant, Esq. Melissa F. Zappala, Esq. BOIES SCHILLER FLEXNER LLP 1401 New York Ave., NW Washington, DC 20005 Telephone: (202) 237-2727 Facsimile: (202) 237-6131 E-mail: sgant@bsfllp.com mfelder@bsfllp.com - and - Carl Goldfarb, Esq. BOIES SCHILLER FLEXNER LLP 401 East Las Olas Blvd., Suite 1200 Fort Lauderdale, FL 33301 Telephone: (954) 356-0011 Facsimile: (954) 356-0022 E-mail: cgoldfarb@bsfllp.com 3M COMPANY: Jones Sues over Defective Combat Arms Earplugs ---------------------------------------------------------- The case, CAROL JONES, the Plaintiff, vs. 3M COMPANY, AEARO HOLDINGS, LLC, AEARO INTERMEDIATE, LLC, AEARO, LLC and AEARO TECHNOLOGIES, LLC, the Defendants, Case No. 3:19-cv-02062-MCR-GRJ (D. Conn., June 21, 2019), seeks to hold 3M liable for hearing loss or damage Plaintiff allegedly suffered while serving variously in the U.S. military, including during foreign conflicts. The Plaintiff contends that Combat Arms TM Earplugs, Version 2 ("CAEv2") manufactured and sold by Aearo were defectively designed and failed to provide adequate hearing protection. 3M denies these allegations. CAEv2, designed by Aearo in close collaboration with the U.S. military, represented a revolutionary breakthrough in hearing protection for service members. CAEv2 helped servicemembers better maintain situational awareness (e.g., to hear nearby voice commands) while also maintaining some protection from gunfire and other higher decibel sounds. CAEv2 met the U.S. military's specifications and helped the military provide hearing protection to service members. Despite knowing of the dangerous defects in its earplugs, Defendant sold the Dual-ended Combat ArmsTM earplugs to the branches of the U.S. military for more than a decade without providing the U.S. military and/or Plaintiff with any warning of said defects, causing Plaintiff and other service members similar permanent injuries, such as hearing loss.[BN] Attorney for the Plaintiff is: Robert I. Reardon, Jr., Esq. THE REARDON LAW FIRM, P.C. 160 Hempstead St. P.O. Drawer 1430 New London, CT 06320 Telephone: 860-442-0444 Facsimile: 860-444-6445 E-mail: rreardon@reardonlaw.com 880 DRY CLEANERS: Rodriguez Files FLSA Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against 880 Dry Cleaners, Inc. The case is styled as Arturo Ponce Rodriguez individually, on behalf of others similarly situated, Plaintiff v. 880 Dry Cleaners, Inc. doing business as: Merit Cleaners, 880 Merit Cleaners, Inc. doing business as: Merit Cleaners, Lex 880 Dry Cleaners, LLC doing business as: Merit Cleaners, Green Dry Cleaners Holding Co., Inc. doing business as: Merit Cleaners, Kwang Ho Choi also known as: Charlie Choi, Defendants, Case No. 1:19-cv-06499 (S.D. N.Y., July 12, 2019). The Plaintiff filed the case under the Fair Labor Standards Act. Merit Cleaners has been providing builders/contract cleaning services since 1998 and is well known in the industry as a quality commercial cleaning company with many clients.[BN] The Plaintiff appears pro se. ADVIA CREDIT: Approval of Class Action Settlement Sought -------------------------------------------------------- In the class action lawsuit BECKY PINGSTON-POLING, individually, and on behalf of all others similarly situated, the Plaintiff, vs. ADVIA CREDIT UNION, the Defendant, Case 1:15-cv-01208-GJQ-RSK ECF (W.D. Mich.), the Plaintiff moves the Court for entry of an Order: 1. preliminarily approving a class action Settlement; 2. approving a proposed plan of notice to the Class; 3. appointing Epiq to provide the notice and administration program outlined in the Settlement Agreement; and 4. setting a schedule of dates for further action on this Settlement Agreement, including a hearing pursuant to Rule 23(e) of the Federal Rules of Civil Procedure to determine whether the proposed Settlement is fair, reasonable, and adequate and should be finally approved.[CC] Counsel for Becky Pingston-Poling and the Putative Class are: Richard D. McCune, Esq. McCune | Wright | Arevalo LLP 3281 East Guasti Road, Suite 100 Ontario, CA 91761 Telephone: (909) 557-1250 Facsimile: (909) 557-1275 E-mail: rdm@mccunewright.com - and - Taras Kick, Esq. THE KICK LAW FIRM, APC 815 Moraga Drive Los Angeles, CA 90401 Telephone: (310) 395-2988 Facsimile: (310) 395-2088 E-mail: Taras@kicklawfirm.com - and - Philip J. Goodman, Esq. Michael B. Serling, Esq. Denise J. Grass, Esq. E-mail: pgoodman1@aol.com mserlinglaw@aol.com dgrass@serlinglaw.com AETNA LIFE: Winston Seeks OT Pay for Care Management Employees -------------------------------------------------------------- Mildred Winston, on behalf of herself and others similarly situated, known and unknown, the Plaintiff, vs. Aetna Life Insurance Company, a Connecticut corporation; and Aetna Inc., a Pennsylvania corporation, the Defendants, Case No. 2:19-cv-04703-JJT (D. Ariz., July 12, 2019), alleges that Defendants violated the Fair Labor Standards Act by failing to pay them overtime when Care Management Employees worked over 40 hours in individual workweeks. According to complaint, the Defendants partner with health care providers and health insurance plans to improve the quality and cost of medical care. The Defendants employed Plaintiff and other non-management employees to perform utilization review and care coordination functions to reduce the costs of medical care under various "job titles" in Defendants' "Clinical – Nursing Job Family" that include one or more of the following terms or variations of those terms: (1) Registered Nurse/RN; (2) Case/Care Manager; (3) Case/Care Management; and/or (4) Utilization Review/Management (collectively, "Care Management Employees"). Defendants' Care Management Employees regularly worked over 40 hours per work week. The Defendants classified Care Management Employees as exempt from state and federal overtime laws and did not pay them overtime when they worked over 40 hours in individual workweeks, the lawsuit says. Aetna Inc. is an American managed health care company that sells traditional and consumer directed health care insurance and related services, such as medical, pharmaceutical, dental, and behavioral health.[BN] Attorney for the PlaiHntiff is: Clifford P. Bendau, II, Esq. Bendau & Bendau PLLC P.O. Box 97066 Facsimile: (480) 304-3805 Telephone: (480) 382-5176 E-mail: cliffordbendau@bendaulaw.com AIR LINE PILOTS: Pilot Instructor Class in Bishop Suit Certified ---------------------------------------------------------------- In the case, DAVID BISHOP and ERIC LISH, individually and on behalf of all others similarly situated, Plaintiffs, v. AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, Defendant, Case No. 13 C 6243 (N.D. Ill.), Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois, Eastern Division, (i) denied Air Line Pilots Association, International ("ALPA")'s motion to strike the complaint's pilot instructor class allegations; and (ii) granted the Plaintiffs' renewed motion for certification of a pilot instructor class. Five United Airlines pilots brought the putative class action against ALPA, alleging that it breached its duty of fair representation under the Railway Labor Act ("RLA"), by unfairly allocating $225 million in retroactive pay among different pilot groups. The Plaintiffs moved to certify two subclasses, one for management pilots and the other for pilot instructors, and ALPA moved under Civil Rule 12(c) for judgment on the pleadings. As to the management pilots, the Court denied ALPA's Rule 12(c) motion and granted the Plaintiffs' class certification motion, but as to the pilot instructors, the Court granted ALPA's motion and denied the Plaintiffs' motion as moot. The management pilots settled, and the Court entered judgment against the two pilot instructor Plaintiffs, David Bishop and Eric Lish, on Feb. 9, 2017. Bishop and Lish appealed, and the Seventh Circuit reversed and remanded, with the mandate issuing on Sept. 4, 2018. ALPA now moves to strike the complaint's pilot instructor class allegations on the ground that the statute of limitations for the absent class members' claims expired while the case was on appeal, and Bishop and Lish renew their motion for certification of a pilot instructor class. Accordingly, Judge Feinerman finds that no absent member of the putative pilot instructor class has attempted to intervene or to file her own individual suit or class action. 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 for the absent class members' claims. In that event, it will not matter whether any absent class member can demonstrate that her claims were tolled, for tolling is irrelevant where the suit was timely filed. It is therefore inappropriate to strike the class allegations on limitations grounds. Accordingly, Judge Feinerman denied ALPA's motion to strike the complaint's pilot instructor class allegations on limitations grounds. ALPA opposes the Plaintiffs' motion to certify a pilot instructor class on the sole ground that all absent class members' claims are time-barred, thereby reducing the number of putative class members to two (Bishop and Lish) -- far too few to satisfy Rule 23(a)(1)'s numerosity requirement. As he explained, the Judge finds that the absent class members' claims are not time-barred, so ALPA's argument fails. And because the proposed pilot instructor class satisfies Rules 23(a) and 23(b)(3) and is ascertainable, the class certification is appropriate. Based on the foregoing, Judge Feinerman denied ALPA's motion to strike class allegations, and granted thePlaintiffs' motion for class certification. The class is defined as all United pilots who, during any part of the period from Jan. 1, 2010 through Dec. 18, 2012, worked as a United pilot instructor. The claim to be tried is whether ALPA breached its duty of fair representation to the pilot instructors in its allocation of the $225 million of retroactive pay provided to United pilots. Bishop and Lish are appointed as the Class Representatives. Pursuant to Rule 23(g), Myron M. Cherry and Jacie C. Zolna of Myron M. Cherry & Associates, LLC, are appointed as the class counsel. The parties will confer regarding class notice and will file a status report with their joint proposal or competing proposals by June 12, 2019. A full-text copy of the Court's May 29, 2019 Memorandum Opinion and Order is available at https://is.gd/mIyS4e from Leagle.com. David Bishop & Eric Lish, Individually and on behalf of all others similarly situated, Plaintiffs, represented by Myron Milton Cherry -- mcherry@cherry-law.com -- Myron M. Cherry & Associates. Air Line Pilots Association, International, Defendant, represented by Stephen B. Moldof -- info@cwsny.com -- Cohen, Weiss and Simon, Andrew L. Goldman -- agoldman@goldmanismail.com -- Goldman Ismail Tomaselli Brennan & Baum LLP, Jonathan A. Cohen, Air Line Pilots Association, International, pro hac vice, Joshua J. Ellison , Cohen, Weiss and Simon LLP, pro hac vice, Marcus C. Migliore, Air Line Pilots Association, International, pro hac vice, Rami N. Fakhouri -- rfakhouri@goldmanismail.com -- Goldman Ismail Tomaselli Brennan & Baum LLP & Thomas N. Ciantra, Air Line Pilots Association, International Legal Department. ALABAMA LAW: Motley Seeks to Certify Class of Drivers ----------------------------------------------------- In the class action lawsuit captioned as SHARON MOTLEY, on behalf of heself and those similarily situated, the Plaintiff, v. HAL TAYLOR, in his official capacity as Secretary of the Alabama Law Enforcement Agency, the Defendant, Case No. 2:19-cv-00478-WKW-SRW (M.D. Ala.), the Plaintiff moves the Court to certify a class of: "all individuals whose driver's licenses are suspended for nonpayment of traffic tickets." The class includes thousands of individuals who are spread across the state, are low-income, and would not have the ability to litigate their claims individually/ The legal and factual issues causing injury to the Class derive from courts suspending driver's licenses pursuant to Alabama Rule of Criminal Procedure for failure to pay a fine, penalty, and/or court costs without any meaningful notice, pre-deprivation hearing, or determination of ability to pay, as well as ALEA's enforcement of the suspension, the lawsuit says.[CC] Attorneys for the Plaintiff are: Micah West, Esq. Sara Zampierin, Esq. Danielle Davis, Esq. SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, AL 36104 Telephone: (334) 956-8200 Facsimile: (334) 956-8481 E-mail: micah.west@splcenter.org sara.zampierin@splcenter.org danielle.davis@splcenter.org ALLSTATE INSURANCE: McCleery Class Certification Denial Affirmed ---------------------------------------------------------------- The Court of Appeals of California, Second District, Division One, issued an Opinion affirming the District Court's Order denying Plaintiffs' Motion for Class Certification in the case captioned TIMOTHY McCLEERY et al., Plaintiffs and Appellants, v. ALLSTATE INSURANCE COMPANY et al., Defendants and Respondents.No. B282851. (Cal. App.). In this putative class action, property inspectors allege they were engaged by three service companies to perform inspections for two major insurers. The inspectors allege they were in fact employees of the insurers and service companies jointly, and were entitled to but deprived of minimum wages, overtime, meal and rest breaks, reimbursement of expenses, and accurate wage statements. The inspectors moved for class certification, supported by their expert's declaration that liability could be determined and damages calculated classwide by way of statistical analyses of results obtained from an anonymous, double-blind survey of a sampling of class members. The trial court summarily rejected the expert's plan and denied certification on the ground that the inspectors had failed to show that their status as employees as opposed to independent contractors could be established on predominately common proof. The Plaintiffs appeal, contending the trial court applied improper criteria and made incorrect legal assumptions. Standard of Review Code of Civil Procedure section 382 authorizes a suit to be tried as a class action when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court. Class certification requires demonstration of an ascertainable and sufficiently numerous class, a well-defined community of interest, and the superiority of proceeding as a class. The community of interest requirement has three factors: (1) predominant common questions of law or fact (2) class representatives with claims or defenses typical of the class and (3) class representatives who can adequately represent the class. In reviewing a trial court's denial of class certification the Court examines whether the operative legal principles, as applied to the facts of the case, render the claims susceptible to resolution on a common basis. A class action may be certified even if it is unlikely the class will eventually prevail on the merits, as certification in such a situation allows a defendant to obtain a favorable judgment binding all class members. It is far better from a fairness perspective to determine class certification independent of threshold questions disposing of the merits, and thus permit defendants who prevail on those merits, equally with those who lose on the merits, to obtain the preclusive benefits of such victories against an entire class and not just a named plaintiff. Although predominance of common issues is often a major factor in a certification analysis, it is not the only consideration. In certifying a class action, the court must also conclude that litigation of individual issues, including those arising from affirmative defenses, can be managed fairly and efficiently. Whether in a given case affirmative defenses should lead a court to approve or reject certification will hinge on the manageability of any individual issues. In wage and hour cases where a party seeks class certification based on allegations that the employer consistently imposed a uniform policy or de facto practice on class members, the party must still demonstrate that the illegal effects of this conduct can be proven efficiently and manageably within a class setting. Individual issues do not render class certification inappropriate so long as such issues may effectively be managed. Trial courts must pay careful attention to manageability when deciding whether to certify a class action. In considering whether a class action is a superior device for resolving a controversy, the manageability of individual issues is just as important as the existence of common questions uniting the proposed class. If the court makes a reasoned, informed decision about manageability at the certification stage, the litigants can plan accordingly and the court will have less need to intervene later to control the proceedings. Thee review the trial court's ruling for abuse of discretion and generally will not disturb it, unless (1) it is unsupported by substantial evidence (2) it rests on improper criteria or (3) it rests on erroneous legal assumptions. If the court's reasons for granting or denying certification are erroneous, we must reverse, whether or not other reasons could have been] relied upon to support the ruling. In this respect, appellate review of orders denying class certification differs from ordinary appellate review. Under ordinary appellate review, the Court do not address the trial court's reasoning and consider only whether the result was correct. But when denying class certification, the trial court must state its reasons, and we must review those reasons for correctness. The may only consider the reasons stated by the trial court and must ignore any unexpressed reason that might support the ruling. In other words, the Court review only the reasons given by the trial court for denial of class certification, and ignore any other grounds that might support denial. Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action,' they are afforded great discretion in evaluating the relevant factors and ruling on a class certification motion. Plaintiffs' Trial Plan is Inadequate and Unfair Here, the trial court's only statement about predominance of common issues favored plaintiffs. The court stated that defendants' status as employers could be established by common factors showing the degree of control they reserved over the inspectors' work. Although the court discussed disparate individual issues at several points in its order, it did so only from the perspective of manageability, and made no finding that individual issues predominated over common ones. The court denied certification notwithstanding its finding (at least impliedly) that a community of interest existed, because it found litigation of individual issues, including those arising from affirmative defenses, could not be managed fairly and efficiently using only Dr. Krosnick's survey. The Plaintiffs defend Dr. Krosnick's survey at length, arguing it was methodologically correct and scientifically valid, captured all pertinent variations in hours worked among inspectors, eschewed irrelevant questions, and produced reliable and accurate results. But this misses the point, as the trial court apparently agreed with these propositions, finding the survey was carefully crafted to verify appropriate respondents and accuracy in the responses. The problem is not that Dr. Krosnick's survey fails as a scientific measurement procedure, but that it fails as a trial plan. Here, the trial court reasonably concluded the plaintiffs' trial plan failed to address how they could fairly establish the defendants' liability on a classwide basis as to any claim. With respect to overtime and meal and rest breaks, simply having the status of an employee does not make the employer liable for a claim for overtime compensation or denial of breaks. An individual employee establishes liability by proving actual overtime hours worked without overtime pay, or by proving that he or she was denied rest or meal breaks. Here, Dr. Krosnick admitted in his deposition that his survey asked no question identifying for which insurer class members performed inspections. It is thus unclear how plaintiffs could establish the liability of Farmers, for example, without considering whether any inspector worked for Farmers more than eight hours in a day or 40 in a week. Nor could the information be extrapolated from Farmers' records of inspections actually performed, because nothing in those records indicated the dates on which they were performed (only the upload date was known), which inspectors performed them (inspectors sometimes had subcontractors perform them), how long they took or would typically take, or whether the inspector did other work on that day for nonparties. The Plaintiffs' plan similarly failed with respect to their minimum wage claim , as the inspectors were paid a piece rate for each inspection performed, and plaintiffs offered no explanation how they could establish, by their survey alone, the number of inspections performed for Farmers, how long they took, or what Farmers paid for them. Regarding meal and rest period claims, inspectors performed inspections for a number of insurance companies, including nonparties, often in the same day, but Dr. Krosnick's survey failed to ask if anyone ever worked long enough in a day for either Farmers or Allstate to be entitled to a meal or rest period from that insurer or any of its three co-employers. The Plaintiffs argue the mere fact that defendants failed to adopt affirmative meal or rest period policies suffices to establish their liability, with damages to be calculated only as a measure of restitution under the unfair competition law. Our Supreme Court has not yet ruled on this point of law. The Plaintiffs argue damages need not be apportioned separately for any insurer defendant because both Farmers and Allstate are vicariously liable as coconspirators for the misconduct of the service companies, which undeniably employed the inspectors. But this ignores the fact that inspectors also worked for nonparties. No authority of which we are aware would make Farmers liable to an inspector who worked as a joint employee of CIS and a nonparty insurer. And because the plaintiffs made no effort to explain how they could establish through common proof what expenses, if any, inspectors incurred for any particular insurer, or how they were deprived of wage statements, the trial court could reasonably conclude these claims were unmanageable as well under the trial plan. The trial court also reasonably concluded that by anonymizing responses plaintiffs unfairly insulated their survey from any meaningful examination. Even Dr. Krosnick, their only witness regarding the survey, did not know who the survey respondents were or why any class member had chosen not to participate. (Dr. Krosnick's analysis of nonresponse bias did not consider whether any class members may have declined to participate due to their personal lack of any claim.) He declared respondents should not be thought of as witnesses, and he testified he had no opinion as to their reliability. In fact, the plaintiffs expressly admit they intend to answer the ultimate question in this case based solely on expert testimony testimony founded on multiple hearsay that defendants could never challenge. As Dr. Krosnick declared, Respondents are not testifying witnesses. Instead it is the expert who will offer opinions and the expert can be cross-examined. But although an expert 'may rely on inadmissible hearsay in forming his or her opinion and may state on direct examination the matters on which he or she relied, the expert may not testify as to the details of those matters if they are otherwise inadmissible.' The Plaintiffs argue defendants need no access to Dr. Krosnick's data, as they are free to conduct their own survey and present contrary conclusions to the jury. This again misses the point. Defendants have the right to defend against plaintiffs' claims by impeaching the evidence supporting them. A class may establish liability by proving a uniform policy or practice by the employer that has the effect on the group of making it likely that group members will work overtime hours without overtime pay, or to miss rest/meal breaks. And California courts and others have in a wide variety of contexts considered pattern and practice evidence, statistical evidence, sampling evidence, expert testimony, and other indicators of a defendant's centralized practices in order to evaluate whether common behavior towards similarly situated plaintiffs makes class certification appropriate. But no case of which we are aware, and plaintiffs refer us to none, suggests a trial may be conducted solely on the evidence of an expert witness relying on an anonymous double-blind survey, no matter how scientific the survey may be. The Court concludes the trial court acted within its discretion in denying class certification. The order denying certification is affirmed. A full-text copy of the Cal. App.'s July 15, 2019 Opinion is available at https://tinyurl.com/y5s2cnyz from Leagle.com. Shenoi Koes, Allan A. Shenoi -- ashenoi@shenoikoes.com, Daniel J. Koes -- dkoes@shenoikoes.com Nneka Egbujiobi -- negbujiobi@shenoikoes.com -- The Law Offices of Stephen M. Benardo, Stephen M. Benardo -- steve@benardolaw.com -- Appell Shapiro, Barry Appell -- barry@asattorney.com -- and Scott E. Shapiro, 15233 Ventura Blvd. Suite 420. Sherman Oaks, CA 91403, for Plaintiffs and Appellants. Seyfarth Shaw, Andrew M. Paley -- apaley@seyfarth.com -- James M. Harris, Sheryl L. Skibbe, Joshua A. Rodine and Kiran Aftab Seldon 2029 Century Park East, Suite 3500 Los Angeles, California 90067-3021, for Defendant and Respondent Allstate Insurance Company. Bononi Law Group, Michael J. Bononi and Christy W. Granieri, 301 North Lake Avenue Suite 820, Pasadena, CA, 91101, for Defendant and Respondent Capital Personnel Services, Inc. Nelson Mullins Riley & Scarborough and Cory E. Manning, 1320 Main Street, 17th Floor, Columbia, SC 29201, for Defendant and Respondent Advanced Field Services, Inc. Epstein Becker & Green, Michael S. Kun -- mkun@ebglaw.com -- and Kevin D. Sullivan -- ksullivan@ebglaw.com -- for Defendant and Respondent Farmers Group, Inc. Robie & Matthai and Kyle Kveton -- kkveton@romalaw.com -- for Defendants and Respondents CIS Group LLC and North American Compass Insurance Services Group LLC. ALTA OPERATIONS: Court Approves $40K Settlement in Macancela Suit ----------------------------------------------------------------- The United States District Court for the Southern District of New York issued a Memorandum Opinion and Order granting Parties' Motion for Approval of Settlement Agreement in the case captioned BRYAN MACANCELA, EDISON MACANCELA, FILIBERTO VILLALBA, JOSE ABREGO, LUIS ROMEL CURCHI, MILTON QUIZHPILEMA, ALEXANDER COSTA, VICTOR PASTUIZACA, and JOHNNY PASTUIZACA, Plaintiffs, v. ALTA OPERATIONS LLC, ALTA OPERATIONS EAST LLC, and SVITLANA FLOM, Defendants. No. 19-CV-1003 (RA). (S.D.N.Y.). Plaintiffs Bryan Macancela, Edison Macancela, Filiberto Villalba, Jose Abrego, Luis Romel Curchi, Milton Quizhpilema, Alexander Costa, Victor Pastuizaca, and Johnny Pastuizaca bring this action against Defendants Alta Operations LLC, Alta Operations East LLC, Allan Basaran, and Svitlana Flom for alleged violations of the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL). Under the terms of the proposed settlement agreement, the Defendants agree to pay the Plaintiffs a total of $40,000 in exchange for the relinquishment of their wage and hour claims. After attorney's fees and costs are subtracted, the remaining sum will be distributed as follows to each plaintiff: $3,658.45 to Plaintiff Bryan Macancela; $3,300.00 to Plaintiff Edison Macancela; $3,000.00 to Plaintiff Filiberto Villalba; $2,500.00 to Plaintiff Jose A. Abrego; $3,100.00 to Plaintiff Luis Romel Curchi; $3,000.00 to Plaintiff Milton Quizhpilema; $600.00 to Plaintiff Alexander Costa; $4,500.00 to Plaintiff Johnny Pastuizaca; and $6,600.00 to Plaintiff Victor Pastuizaca. These sums reflect payment in full for all unpaid hours and overtime compensation Plaintiffs claim in the Amended Complaint. The total amount is therefore reasonable. The Court also approves the attorney's fees and costs set forth in the fairness letter. Here, the fee is approximately one-third of the award, and when using a percentage of the fund approach, courts regularly approve attorney's fees of one-third of the settlement amount in FLSA cases. According to the letter, the Plaintiffs' attorney will receive $9,741.55. After costs are subtracted, the attorney's fee award is approximately one-third of the net settlement amount. The Plaintiffs' attorney has also submitted contemporaneous billing records, which reflect diligent expenditures of time and effort on this case. The amount of the fee is therefore reasonable as a fair percentage of the net award. The Plaintiffs' release of claims is fair and reasonable. The release provision at issue here is far more limited than those routinely rejected. The release is limited to all actions, causes of action, or claims for violations of the Fair Labor Standards Act and/or the New York Labor Law, and it expressly does not affect claims that might arise after the execution of the agreement. Thus, the Court finds that the release in the proposed settlement agreement is fair and reasonable. The Court approves the parties' settlement agreement. A full-text copy of the District Court's July 11, 2019 Memorandum Opinion and Order is available at https://tinyurl.com/yxjv4rfp from Leagle.com. Bryan Macancela, individually and on behalf of all others similarly situated, Edison Macancela, individually and on behalf of all others similarly situated, Filiberto Villalba, Milton Quizhpilema, Alexanda Costa, Jose Abrego, Victor Pastuizaca, Luis Curchi, Johnny Pastuizaca, Jose A Abrego, Edison Macancela, Luis Romel Curchi & Bryan Macancela, Plaintiffs, represented by John J.P. Howley, Law Offices of John Howley, 350 Fifth Avenue, 59th Floor New York, NY 10118. AMAZON.COM: Ortiz Seeks to Certify Class of Level 4 Shift Managers ------------------------------------------------------------------ In the class action lawsuit MICHAEL ORTIZ, individually, and on behalf of all others similarly situated, the Plaintiff, vs. AMAZON.COM LLC, a Delaware Limited Liability Company; and GOLDEN STATE FC LLC, a Delaware Limited Liability Company, the Defendants, Case No. 4:17-cv-03820-JSW (N.D. Cal.), the Plaintiff will move on August 23, 2019, the Court to enter an Order certifying a class of: "similarly situated overtime exempt Level 4 Shift Managers employed by Defendants Amazon.com LLC and Golden State FC, LLC at all their California Delivery Centers under Federal Rules of Civil Procedure 23(b)(3)." Amazon has become the premier retailer of almost all imaginable items, from books to electronics to egg slicers, and has surpassed any other retailer in terms of inventory, sales, and customers.[CC] Attorney for the Plaintiff and the Plaintiff Class are: Scott Edward Cole, Esq. Laura Grace Van Note, Esq. SCOTT COLE & ASSOCIATES, APC 555 12th Street, Suite 1725 Oakland, CA 94607 Telephone: (510) 891-9800 Facsimile: (510) 891-7030 E-mail: scole@scalaw.com lvannote@scalaw.com ARBITRATION FORUMS: Court Refuses to Strike White Knight's TAC -------------------------------------------------------------- The United States District Court for the Eastern District of Missouri, Eastern Division, issued a Memorandum and Order denying Defendant's Motion to Strike Third Amended Complaint in the case captioned WHITE KNIGHT DINER, LLC, et al., Plaintiffs, v. ARBITRATION FORUMS, INC., et al., Defendants. No. 4:17-CV-02406 JAR. (E.D. Mo.). The Plaintiffs filed a separate pleading titled Complaint. The Complaint removed certain plaintiffs and defendants but included the same Counts and allegations from the previous class action complaint. Owners moved to dismiss with prejudice Counts III through VI of Plaintiff's Complaint. Owners moves to strike the Third Amended Complaint on the grounds that it was filed without consent or leave of the court and in response to a motion to dismiss in an effort to delay these proceedings. In their opposition to Owners' motion to strike, The Plaintiffs maintain that their complaint constitutes a new pleading which they would have the opportunity to amend more substantively under Rule 15. The Court notes it was the agreement and intent of the parties to proceed in this case with the filing of a separate complaint against Owners. Although Plaintiffs have not complied with the Federal Rules of Civil Procedure, in order to effect the parties' agreement and intent, the Court will allow and consider Plaintiffs' Third Amended Complaint. Accordingly, the Defendant's Motion to Strike Third Amended Complaint is denied. A full-text copy of the District Court's July 11, 2019 Memorandum and Order is available at https://tinyurl.com/y5tftshu from Leagle.com. White Knight Diner, LLC, Larry Lee Hinds & Karen Freiner, Plaintiffs, represented by Anthony G. Simon, THE SIMON LAW FIRM, P.C., 800 Market St., Suite 1700, St. Louis, MO 63101, Gonzalo A. Fernandez, DEVEREAUX AND STOKES, James P. Leonard, DEVEREAUX AND STOKES, 133 South 11th Street, Suite 350, St. Louis, MO 63102, John G. Simon, THE SIMON LAW FIRM, P.C., 800 Market St., Suite 1700, St. Louis, MO 63101, Michael D. Stokes, DEVEREAUX STOKES NOLAN FERNANDEZ & LEONARD, 133 South 11th Street, Suite 350, St. Louis, MO 63102, Anthony R. Friedman, THE SIMON LAW FIRM, P.C. & Benjamin R. Askew, THE SIMON LAW FIRM, P.C., 800 Market St., Suite 1700, St. Louis, MO 63101 Owners Insurance Company, Defendant, represented by Timothy J. Wolf -- twolf@bjpc.com -- BROWN AND JAMES, P.C., David Russell McCourt -- dmccourt@bjpc.com -- BROWN AND JAMES, P.C. & Joseph Michael Morris -- jmorris@bjpc.com -- BROWN AND JAMES, P.C. Owners Insurance Company, Counter Claimant, represented by Timothy J. Wolf, BROWN AND JAMES, P.C., David Russell McCourt, BROWN AND JAMES, P.C. & Joseph Michael Morris, BROWN AND JAMES, P.C. Karen Freiner, Larry Lee Hinds & White Knight Diner, LLC, Counter Defendants, represented byAnthony G. Simon, THE SIMON LAW FIRM, P.C., Gonzalo A. Fernandez, DEVEREAUX AND STOKES, James P. Leonard, DEVEREAUX AND STOKES, John G. Simon, THE SIMON LAW FIRM, P.C., Michael D. Stokes, DEVEREAUX STOKES NOLAN FERNANDEZ & LEONARD, Anthony R. Friedman, THE SIMON LAW FIRM, P.C. & Benjamin R. Askew, THE SIMON LAW FIRM, P.C. BILL HAMILTON: Court Enters Protective Order in Lizarraga FLSA Suit ------------------------------------------------------------------- Magistrate Judge Susan van Keulen of the U.S. District Court for the Northern District of California has entered a stipulate protective order in the case, ERIBERTO LIZARRAGA, an individual, JUAN PADILLA, an individual, PLAINTIFFS AND CLASS ACTION PLAINTIFFS, Plaintiffs, v. BILL HAMILTON, an individual BILL HAMILTON ROOFING, INC., a California Corporation, Defendants, Case No. 18-CV-03845-SVK (N.D. Cal.). Disclosure and discovery activity in the action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties stipulated to and petitioned the Court to enter their Stipulated Protective Order. The protections conferred by the Stipulation and Order cover not only Protected Material, but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. Any use of Protected Material at trial will be governed by a separate agreement or order. Even after final disposition of the litigation, the confidentiality obligations imposed by the Order will remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. Final disposition will be deemed to be the later of (1) dismissal of all claims and defenses in the action, with or without prejudice; and (2) final judgment therein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of the action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law. Any Party or Non-Party may challenge a designation of confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the original designation is disclosed. A Receiving Party may use Protected Material that is disclosed or produced by another Party or by a Non-Party in connection with the case only for prosecuting, defending, or attempting to settle the litigation. Such Protected Material may be disclosed only to the categories of persons and under the conditions described in the Order. Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under the Order. Within 60 days after the final disposition of the action, each Receiving Party must return all Protected Material to the Producing Party or destroy such material. A full-text copy of the Court's May 29, 2019 Stipulated Protective Order is available at https://is.gd/WagR2v from Leagle.com. Eriberto Lizarraga, an individual & Juan Padilla, an individual, Plaintiffs, represented by Victoria L.H. Booke -- vbooke@bookelaw.com -- Law Offices of Booke & Ajlouny, LLP & James Dal Bon -- jdb@wagedefenders.com -- Law Offices of James Dal Bon. Bill Hamilton Roofing, Inc. & Bill Hamilton, Defendants, represented by Kurt Edward Wilson -- kwilson@smwb.com -- Sweeney Mason Wilson & Bosomworth A Professional Corporation. BOEING COMPANY: Pilot Y Alleges Aircraft Design Flaw Cover-Up ------------------------------------------------------------- PILOT Y, individually and on behalf of all those similarly situated, the Plaintiff, vs. THE BOEING COMPANY, a Delaware corporation, the Defendant, Case No. 2019CH08031 (Ill. Cir., July 5, 2019), seeks compensation on behalf of the Plaintiff and more than 100 pilots qualified to fly the Boeing 737 MAX series of aircraft (the "MAX") as employees of an international airline ("Airline X"), whose professional and personal lives were harmfully impacted when BOEING and the Federal Aviation Administration engaged in an unprecedented cover-up of the known design flaws of the MAX, which predictably resulted in the crashes of two MAX aircraft and subsequent grounding of all MAX aircraft worldwide. The Plaintiff says he relied on BOEING's representations that the MAX was safe when qualifying to fly the MAX, and thus suffered -- and continues to suffer -- significant lost wages, among other economic and non-economic damages, since the MAX was grounded. Additionally, the Plaintiff says he suffered severe emotional and mental stress when they were effectively forced to fly the MAX -- and required to place their own life and the lives of their crew and passengers in clanger -- despite the growing awareness of the dangerous nature of the previously concealed software on board the MAX and other problems, the lawsuit says. Boeing Company is an American multinational corporation that designs, manufactures, and sells airplanes, rotorcraft, rockets, satellites, comms gear and missiles worldwide.[BN] Attorneys for the Plaintiff and the proposed Class are: Patrick M. Jones, Esq. Sarah M. Beaujour, Esq. PMJ PLLC 100 South State Street Chicago, IL 60603 Telephone: (312) 255-7976 E-mail: pmj@patjonespllc.com smb@patjonespllc.com - and - Joseph C. Wheeler, Esq. IALPG PTY LTD (t/as International Aerospace Law & Policy Group) ID, 7/139 Junction Road Clay field Queensland, Australia 4011 Telephone: 617 3040 1099 E-mail: jwheeler@ialpg.com BOEING COMPANY: Pilot Z Alleges Aircraft Design Flaw Cover-Up ------------------------------------------------------------- PILOT Z, individually and on behalf of all those similarly situated, the Plaintiff, vs. THE BOEING COMPANY, a Delaware corporation, the Defendant, Case No. 2019CH08045 (Ill. Cir., July 5, 2019), seeks compensation on behalf of the Plaintiff and more than 100 pilots qualified to fly the Boeing 737 MAX series of aircraft (the "MAX") as employees of an international airline ("Airline X"), whose professional and personal lives were harmfully impacted when BOEING and the Federal Aviation Administration engaged in an unprecedented cover-up of the known design flaws of the MAX, which predictably resulted in the crashes of two MAX aircraft and subsequent grounding of all MAX aircraft worldwide. The Plaintiff says he relied on BOEING's representations that the MAX was safe when qualifying to fly the MAX, and thus suffered -- and continues to suffer -- significant lost wages, among other economic and non-economic damages, since the MAX was grounded. Additionally, the Plaintiff says he suffered severe emotional and mental stress when they were effectively forced to fly the MAX -- and required to place their own life and the lives of their crew and passengers in clanger -- despite the growing awareness of the dangerous nature of the previously concealed software on board the MAX and other problems, the lawsuit says. Boeing Company is an American multinational corporation that designs, manufactures, and sells airplanes, rotorcraft, rockets, satellites, comms gear and missiles worldwide.[BN] Attorneys for the Plaintiff and the proposed Class are: Patrick M. Jones, Esq. Sarah M. Beaujour, Esq. PMJ PLLC 100 South State Street Chicago, IL 60603 Telephone: (312) 255-7976 E-mail: pmj@patjonespllc.com smb@patjonespllc.com - and - Joseph C. Wheeler, Esq. IALPG PTY LTD (t/as International Aerospace Law & Policy Group) ID, 7/139 Junction Road Clay field Queensland, Australia 4011 Telephone: 617 3040 1099 E-mail: jwheeler@ialpg.com CAPE REORTS GROUP: Fischler Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Cape Resorts Group - SAG, LLC. The case is styled as Brian Fischler Individually and on behalf of all other persons similarly situated, Plaintiff v. Cape Resorts Group - SAG, LLC doing business as: Barons Cove, Defendant, Case No. 1:19-cv-06517 (S.D. N.Y., July 13, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Baron's Cove is the Hampton's preeminent All-American resort destination.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. Lipsky Lowe LLP 630 Third Avenue Fifth Floor New York, NY 10017 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: chris@lipskylowe.com CARMAX AUTO: McElhannon Suit Remanded to Calif. State Court ----------------------------------------------------------- In the case, DEREK McELHANNON, et al., Plaintiffs, v. CARMAX AUTO SUPERSTORES WEST COAST, INC., et al., Defendants, Case No. 3:19-cv-00586-WHO (N.D. Cal.), Judge William H. Orrick of the U.S. District Court for the Northern District of California remanded the case to the Superior Court of California, County of Alameda. Plaintiffs McElhannon, Aleena Iqbal, Christopher Syharath, Ruben Santiago, and Emil Milisci originally filed a class action complaint on Nov. 21, 2018 in Alameda County Superior Court alleging that Defendants Carmax Auto Superstores West Coast, Inc. and Carmax Auto Superstores California, LLC violated numerous provisions of the California Labor Code. They filed the first amended complaint on Jan. 31, 2019, but the parties dispute when the Plaintiffs served it on Carmax. In Feb. 1, 2019, Carmax removed the case to the Court pursuant to the Class Action Fairness Act ("CAFA") and promptly filed a motion to compel arbitration as required by the Dispute Resolution Agreement ("DRA") it says each Plaintiff signed. On March 6, Carmax filed a motion to compel arbitration, dismiss class claims, and stay California's Private Attorney General Act ("PAGA") of 2004 claims. Without opposing Carmax's motion, the Plaintiffs filed a second amended complaint ("SAC") listing only Iqbal and Milisci and bringing only a representative action under PAGA. They indicate that the other Plaintiffs will submit to arbitration as Carmax demands, and Iqbal and Milisci will forego their remaining claims in order to pursue only the PAGA claims. Carmax then filed a motion to strike the SAC. Before the Court are three motions: (1) Carmax moves to compel arbitration, dismiss the Plaintiffs' class claims, and stay the Plaintiffs' PAGA claims; (2) the Plaintiffs move to remand the action to state court given the changes in the SAC; and (3) Carmax moves to strike the SAC as improperly filed. In order to address the issues on the merits in the most efficient and least expensive way, Judge Orrick will remand the case because there is no basis for federal jurisdiction under the SAC. The unique posture hin the case, namely, the fact that the only the Plaintiffs who wish to remain in the case are pursuing only PAGA claims, counsels a different approach. According to the Ninth Circuit, PAGA is not sufficiently similar to Rule 23 to establish the original jurisdiction of a federal court under CAFA. The SAC pleads only a representative action under PAGA. Although Carmax properly removed the case to federal court, under the SAC the basis for federal jurisdiction no longer exists. Accordingly, the Judge must remand the case. Judge Orrick remanded to the Superior Court of California, County of Alameda. He vacated the June 12, 2019 hearing on the motions. A full-text copy of the Court's June 4, 2019 Order is available at https://is.gd/IQne4t from Leagle.com. Derek McElhannon, Aleena Iqbal, Christopher Syharath, Ruben Santiago & Emil Milisci, each individually and on behalf of all others similarly situated, Plaintiffs, represented by Jacob N. Whitehead, Whitehead Employment Law, Christina Ann Humphrey -- christina@chumphreylaw.com -- Christina Humphrey Law, PC & Patrick McNicholas, McNicholas & McNicholasLLP. Carmax Auto Superstores West Coast, Inc., a Virginia corporation & Carmax Auto Superstores California, LLC, a Virginia limited liability company, Defendants, represented by Jack Steven Sholkoff -- jack.sholkoff@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C. & Jennifer Lindsay Katz -- Jennifer.katz@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart PC. CAVALRY PORTFOLIO: Walker Asserts Breach of FCDPA ------------------------------------------------- A class action lawsuit has been filed against Cavalry Portfolio Services, LLC. The case is styled as Hazel Walker, individually and on behalf of all others similarly situated, Plaintiff v. Cavalry Portfolio Services, LLC, Cavalry SPV II, LLC and John Does 1-25, Defendants, Case No. 2:19-cv-02453-JTF-tmp (W.D. Tenn., July 16, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Act. Cavalry Portfolio Services LLC is a debt collection agency located in Oklahoma.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. Stein Saks, PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 Email: ysaks@steinsakslegal.com CENTENE CORP: Pension Fund Derivative Suit Temporarily Stayed ------------------------------------------------------------- The United States District Court for the Eastern District of Missouri, Eastern Division, issued a Memorandum and Order granting in part and denying in part Defendant's Motion to Stay in the case captioned CARPENTERS PENSION FUND OF ILLINOIS, et al., derivatively and on behalf of the nominal defendant Centene Corporation, Plaintiffs, v. MICHAEL F. NEIDORFF, et al., Defendants, and CENTENE CORPORATION, Nominal Defendant. No. 4:18 CV 113 CDP. (E.D. Mo.). Nominal defendant Centene Corporation moves to stay this shareholder derivative action pending resolution of a separate, yet related, securities class action over which another judge in this district presides. This shareholder derivative action is brought by plaintiff-shareholders of nominal defendant Centene Corporation, in which plaintiffs allege that certain members of Centene's board of directors and certain of its officers violated federal securities laws, breached their fiduciary duties, engaged in insider trading, and were unjustly enriched by and in relation to their alleged false and misleading statements regarding the extent of liabilities inherited by Centene in a March 2016 merger with Health Net, Inc., resulting in millions of dollars in damages to Centene. In determining Centene's motion to stay, the parties agree that I should consider the following factors: 1) potential prejudice to the nonmoving party 2) hardship and inequity to the moving party if the action is not stayed and 3) the judicial resources that would be saved by avoiding duplicative litigation. First, the Court agrees with plaintiffs that an indefinite stay runs the risk of potential loss of evidence, especially as to the memories of witnesses in this undoubtedly fact-intensive litigation. Although there will certainly be significant overlap in witnesses in both cases, not all witnesses will necessarily be the same and those witnesses that are the same may not be asked questions during discovery in the securities action that plaintiffs here may want answered. Additionally, the documentary evidence sought in the securities action may not encompass all of the documentary evidence sought by plaintiffs here. Because an indefinite delay in discovery in this action could potentially harm the nonmoving parties, this factor weighs against an indefinite stay. Both cases are pending in this district court and both are in early procedural stages such that discovery in the two cases going forward can be coordinated, thus conserving Centene's resources. If this case is stayed and discovery progresses in the securities action, Centene could be subject to duplicative discovery, possibly years down the road, which would be a greater drain on its managerial and financial resources. Beyond this formalistic construct, the Court cannot ascertain any direct conflict between the shareholders seeking damages from the corporation based on the wrongdoing of its Officers and Directors in the securities class action, and the shareholder seeking to protect the corporation's rights against the wrongdoing of its Officers and Directors in [the derivative] action. Centene has thus failed to show a genuine conflict between its defense in the securities action and its interest in this derivative action. Finally, judicial resources are best used by granting a temporary stay of this action instead of an indefinite one. Duplicative discovery efforts and disputes can be avoided through appropriate case management between the two cases. Resolution of similar issues in the securities action can inform this Court in the present instead of being made to wait ad infinitum, with such delay being exacerbated by the halt of discovery in this case. Appropriate case management with informed scheduling between the two cases can also minimize the risk of inconsistent judicial rulings. Centene Corporation's Motion to Stay this Action Pending Resolution of Sanchez, et al. v. Centene Corp., et al. is granted in part and denied in part. The Court will deny the motion to stay this action indefinitely but will impose a temporary stay pending resolution of the motion to dismiss in the securities action. A full-text copy of the District Court's July 11, 2019 Memorandum and Order is available at https://tinyurl.com/y5kpngyv from Leagle.com. Carpenters Pension Fund of Illinois & Iron Workers Local 11 Pension Fund, Plaintiffs, represented by Carol Valerie Gilden -- cgilden@cohenmilstein.com -- COHEN AND MILSTEIN PLLC, Eric Steven Berelovich -- eberelovich@cohenmilstein.com -- COHEN AND MILSTEIN PLLC, Geoffrey M. Johnson -- GJOHNSON@SCOTT-SCOTT.COM -- SCOTT AND SCOTT ATTORNEYS AT LAW LLP, Jamie L. Reyes-Jones -- GJOHNSON@SCOTT-SCOTT.COM -- HARTNETT REYES-JONES, L.L.C., Richard A. Speirs -- rspeirs@cohenmilstein.com -- COHEN AND MILSTEIN PLLC, pro hac vice & Scott R. Jacobsen -- SJACOBSEN@SCOTT-SCOTT.COM -- SCOTT AND SCOTT ATTORNEYS AT LAW LLP. Peoria Police Pension Fund & Laura Wood, Plaintiffs, represented by Geoffrey M. Johnson, SCOTT AND SCOTT ATTORNEYS AT LAW LLP, Jamie L. Reyes-Jones, HARTNETT REYES-JONES, L.L.C., Scott R. Jacobsen, SCOTT AND SCOTT ATTORNEYS AT LAW LLP & Greg G. Gutzler -- ggutler@dicellolevitt.com -- DICELLO AND LEVITT, LLC. Harkishan Parekh, derivatively on behalf of Centene Corporation, Plaintiff, represented by Geoffrey M. Johnson, SCOTT AND SCOTT ATTORNEYS AT LAW LLP, Jamie L. Reyes-Jones, HARTNETT REYES-JONES, L.L.C., Scott R. Jacobsen, SCOTT AND SCOTT ATTORNEYS AT LAW LLP, Stephen J. Oddo -- soddo@robbinsarroyo.com -- ROBBINS ARROYO LLP & Joseph V. Neill. Michael F. Neidorff, Jeffrey A. Schwaneke, Robert K. Ditmore, David L. Steward, John R. Roberts, Tommy G. Thompson, Frederick H. Eppinger, Richard A. Gephardt, Orlando Ayala, Vicki B. Escarra, K. Rone Baldwin, Carol E. Goldman & Centene Corporation, a Delaware corporation, Defendants, represented by Christopher A. Smith -- chris.smith@huschblackwell.com -- HUSCH BLACKWELL, LLP, Joseph P. Conran -- joe.conran@huschblackwell.com -- HUSCH BLACKWELL, LLP, Peter B. Morrison -- peter.morrison@skadden.com -- SKADDEN ARPS, LLP, pro hac vice & Winston P. Hsiao -- winston.hsiao@skadden.com -- SKADDEN AND ARPS, pro hac vice. Laura Wood & Peoria Police Pension Fund, Movants, represented by Greg G. Gutzler, DICELLO AND LEVITT, LLC. CENTO FINE: Court Enlarges Dismissal Bid Deadlines in Snarr ----------------------------------------------------------- The United States District Court for the Northern District of California, Oakland Division, issued an Order enlarging Deadlines Relating to Defendant's Motion to Dismiss in the case captioned DEREK SNARR, J. MICHAEL DUCA, and CANDACE GOULETTE, individually and on behalf of all others similarly situated, Plaintiffs, v. CENTO FINE FOODS INC., a Pennsylvania corporation, and DOES 1 through 50, inclusive, Defendant. Case No. 4:19-cv-2627-HSG. (N.D. Cal.). The Plaintiffs will file their Response to the Defendant's Motion to Dismiss on July 22, 2019. The Defendant's Reply in Support of its Motion to Dismiss is due July 29, 2019. A full-text copy of the District Court's July 11, 2019 Order is available at https://tinyurl.com/y5hm3tuf from Leagle.com. Derek Snarr, J. Michael Duca & Candace Goulette, Plaintiffs, represented by Edwin John Kilpela, Jr. -- ekilpela@carlsonlynch.com -- Carlson Lynch, LLP, pro hac vice, Joseph C. Bourne -- jbourne@pswlaw.com -- Pearson, Simon & Warshaw, LLP, Melissa S. Weiner -- mweiner@pswlaw.com -- PEARSON SIMON & WARSHAW, LLP, pro hac vice & Daniel L. Warshaw -- dwarshaw@pswlaw.com -- Pearson, Simon & Warshaw, LLP. Cento Fine Foods Inc., Defendant, represented by Daniel S. Tyler -- daniel@amintalati.com -- Amin Talati Wasserman, LLP, pro hac vice, Matthew Ryan Orr -- MORR@CALLJENSEN.COM -- Call & Jensen A Professional Corporation, William Paul Cole -- WCOLE@CALLJENSEN.COM -- Call and Jensen & Sanjay Satish Karnik -- sanjay@amintalati.com -- Amin Talati and Upadhye LLC, pro hac vice. CENTRAL PORTFOLIO: Wilkins Files Class Suit Under FDCPA ------------------------------------------------------- A class action lawsuit has been filed against Central Portfolio Control, Inc. The case is styled as Craig Wilkins, on behalf of himself and all others similarly situated, Plaintiff v. Central Portfolio Control, Inc. and John Does 1-25, Defendants, Case No. 1:19-cv-04117 (E.D. N.Y., July 16, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Act. Central Portfolio Control, Inc. is a loan agency in Minnetonka, Minnesota.[BN] The Plaintiff is represented by: Joseph Karl Jones, Esq. Jones, Wolf & Kapasi, LLC One Grand Central Place 60 East 42nd. Street, 46th Floor New York, NY 10165 Tel: (646) 459-7971 Fax: (646) 459-7973 Email: jkj@legaljones.com CHEERS HEALTH: Lashbrook Files Suit in S.D. Florida --------------------------------------------------- A class action lawsuit has been filed against Cheers Health, Inc. The case is styled as Caroline Lashbrook individually and on behalf of all others similarly situated, Plaintiff v. Cheers Health, Inc. formerly known as: THRIVEPLUS a Delaware Corporation, Defendant, Case No. 0:19-cv-61730-UU (S.D. Fla., July 12, 2019). The nature of suit is stated as Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision. Cheers is a brand of products designed to reduce alcohol's negative effects.[BN] The Plaintiff is represented by: Seth Michael Lehrman, Esq. Edwards Pottinger LLC 425 N. Andrews Ave., Suite 2 Fort Lauderdale, FL 33301 Phone: (954) 524-2820 Fax: (954) 524-2822 Email: seth@epllc.com CHICAGO, IL: Court Denies Bid for Class Certification in Smith Suit ------------------------------------------------------------------- In the case, DARNELL SMITH, et al., Plaintiffs, v. CITY OF CHICAGO, et al., Defendants, Case No. 15-cv-03467 (N.D. Ill.), Judge Andrea R. Wood of the U.S. District Court for the Northern District of Illinois, Eastern Division, denied the Plaintiffs' motion for Rule 23(b)(3) class certification. In the putative class action, Plaintiff Smith and 18 other individuals have sued Defendants City of Chicago, Chicago Police Superintendent Gary McCarthy, and approximately 60 named and unnamed Chicago Police Department ("CPD") officers for alleged violations of their rights pursuant to the Fourth Amendment to the United States Constitution, as set forth in the Supreme Court's decision in Terry v. Ohio. Specifically, the Plaintiffs allege that the CPD has a policy and practice of conducting unconstitutional investigatory stops. Each of the named Plaintiffs claims that because of that policy and practice, one or more CPD officers subjected him to a non-consensual investigatory stop without reasonable suspicion. In their Sixth Amended Complaint, the Plaintiffs allege that the Defendants have implemented, applied, and continued to enforce a policy or custom of unconstitutional stops and frisks of Chicago residents by the CPD, which have been conducted without the reasonable articulable suspicion required by the Fourth Amendment. The Plaintiffs are 19 individuals who allege that they reside in or visit neighborhoods where the CPD has conducted these unconstitutional stops and frisks, and some of them claim to be victims themselves. Now before the Court is the Plaintiffs' motion to certify a class under Federal Rule of Civil Procedure 23(b)(3). Based on the CPD's contact-cards system, the Plaintiffs seek to represent two putative classes: (1) Fourth Amendment Class: All persons subjected to an investigatory stop by the Chicago Police Department at any time since April 20, 2013, which resulted in the creation of a contact card; and (2) All African-Americans and Hispanics subjected to an investigatory stop by the Chicago Police Department at any time since April 20, 2013, which resulted in the creation of a contact card. Alternately, they request certification of four narrower classes: (3) Fourth Amendment Class: All persons who were encountered by the Chicago Police Department for enforcement of the Gang and Narcotics Loitering Ordinance at any time since April 20, 2013, which resulted in the creation of a contact card; (4) All African-Americans and Hispanics who were encountered by the Chicago Police Department for enforcement of the Gang and Narcotics Loitering Ordinance at any time since April 20, 2013, which resulted in the creation of a contact card; (5) All persons subjected to an investigatory stop by the Chicago Police Department at any time since April 20, 2013, which resulted in the creation of a contact card that contains no narrative; and (6) All African-Americans and Hispanics who were subjected to an investigatory stop by the Chicago Police Department at any time since April 20, 2013, which resulted in the creation of a contact card that contains no narrative. On behalf of the proposed classes, the Plaintiffs seek compensatory and punitive damages. As another alternative, the Plaintiffs seek certification of particular issues under Rule 23(c)(4), including whether the CPD's General Order on racial profiling and/or Special Order on gang and narcotics loitering are unconstitutional, whether CPD's policies and practices for investigatory stops were intended to target minorities, and whether CPD policymakers were deliberately indifferent to the known or obvious consequences of their actions in the context of investigatory stops. As a preliminary matter, Judge Wood first addresses the Defendants' motion for leave to file a surreply to the Plaintiffs' motion for class certification and the Plaintiffs' motion for leave to file a sur-surreply. She finds that the Plaintiffs proposed the four narrower classes and sought certification of particular issues under Rule 23(c)(4) for the first time in their reply brief. Therefore, in her discretion previously granted the Defendants leave to file a surreply to respond to the Plaintiffs' proposals. In their own request for leave to file what would essentially be a sur-surreply, the Plaintiffs contend that the City's arguments in its surreply are largely regurgitations of the same arguments in its response brief while simultaneously claiming that there are representations in the City's brief that the Plaintiffs would need to address, with no further explanation. The Plaintiffs also assert that as the moving party, they should have the final world. The Judge finds thae Plaintiffs' position unpersuasive and, in its discretion, denies the Plaintiffs' request to file yet another brief in response to the Defendants' surreply. As the Plaintiffs themselves recognize, the Court has more than enough briefing on the matter to fully and fairly adjudicate the issue, and at some point, briefing must end. The Judge now turns to the Plaintiffs' motion for class certification. As to proposed Classes 1 and 2 -- persons with a contact card -- she finds that the Plaintiffs have not met their burden of offering significant proof that the CPD had a general policy that caused its officers to conduct unconstitutional investigatory stops. As to proposed Classes 3 and 4 -- persons whose contact cards reflect enforcement of the gang and narcotics loitering ordinance -- the Judge finds that the Plaintiffs have failed to show that the Loitering Special Order functioned as a general policy that caused individual CPD officers to violate individuals' constitutional rights. Finally, the Plaintiffs' fifth and sixth proposed classes consist of subsets of individuals whose encounters with the police resulted in contact cards with no narratives, the Judge finds that because the Plaintiffs cannot satisfy the commonality requirement for their first, third, and fifth proposed Fourth Amendment classes, they also cannot do so for the accompanying Fourteenth Amendment classes. Having determined that the Plaintiffs failed to prove commonality for any of their six proposed classes, the Judge need not inquire into the remaining Rule 23(a) issues of typicality and adequacy, nor whether a class action is the superior method of adjudicating this dispute. Certification as a Rule 23(b)(3) class is therefore not appropriate. Therefore, she denies the Plaintiffs' motion for Rule 23(b)(3) class certification. Finally, the Plaintiffs request as an alternative to Rule 23(b)(3) certification that a class be certified as to certain issues pursuant to Rule 23(c)(4). They contend that common issues related to the CPD's policies and practices are appropriate for class-wide resolution because these policies and practices caused each class members' individual damages. The Judge denies the Plaintiffs' request to certify a class for particular issues under Rule 23(c)(4). She finds that the Plaintiffs cannot prove an unconstitutional seizure without individualized inquiries into the totality of circumstances surrounding the creation of each contact card -- they cannot simply point to certain CPD policies and practices. For the foregoing reasons, Judge Woof denied the Plaintiffs' motion for Rule 23(b)(3) class certification. In so ruling, however, the Judge expresses no view on whether the shortcomings of the Plaintiffs' proposed Rule 23(b)(3) class would similarly preclude certification of a Rule 23(b)(2) class. A full-text copy of the Court's May 29, 2019 Memorandum Opinion and Order is available at https://is.gd/6PIQYo from Leagle.com. Darnell Smith, Darren Nathan, Gregory Davis, Hector Fantanez, Marcell Davis, Anthony Polk, Carl N. McCord, Timothy Thigpen, MarkNevilles, Melvin Thompson, Steve McAbee, Herbert Dyer, Jr., Shantay Johnson, Arthur Moton, Edgar Marshall, Michael Sanders, Rashawn Lindsey, Sidney Bell & Calvin Jackson, Plaintiffs, represented by Martin D. Gould -- mgould@rblaw.net -- Romanucci & Blandin Llc, Antonio Maurizio Romanucci -- aromanucci@rblaw.net -- Romanucci & Blandin, LLC, Brian H. Eldridge -- beldridge@hmelegal.com -- Hart McLaughlin & Eldridge, LLC, Bryce Thomas Hensley, Romanucci & Blandin, Llc, Christina Maria Flores, Hart Mclaughlin & Eldridge, Llc, John Jack Backes Prior -- jprior@hmelegal.com -- Hart McLaughlin & Eldridge, LLC, Kyle Pozan -- kpozan@hmelegal.com -- Hart McLaughlin & Eldridge, LLC, Nicolette A. Ward, Romanucci & Blandin, Llc, Rodney G. Gregory -- rod@gregorylawfirm.net -- The Gregory Law Firm & Steven Alan Hart -- shart@hmelegal.com -- Hart McLaughlin & Eldridge, LLC. Rebecca Sanders, as Parent and Next Friend of Steve McAbee, a minor & Araceli Fantanez, as Parent and Next Friend of Hector Fantanez, a minor, Plaintiffs, represented by Bryce Thomas Hensley , Romanucci & Blandin, Llc, Christina Maria Flores , Hart Mclaughlin & Eldridge, Llc, Nicolette A. Ward , Romanucci & Blandin, Llc, Rodney G. Gregory , The Gregory Law Firm, Antonio Maurizio Romanucci , Romanucci & Blandin, LLC, Martin D. Gould , Romanucci & Blandin Llc & Steven Alan Hart , Hart McLaughlin & Eldridge, LLC. The City of Chicago, a municipal corporation, Garry McCarthy, Chicago Police Superintendent, in his individual and official capacity, Michael Callahan, Roy Mazzanti, Adolfo Garcia, Kris Stipanov, Mario Cruz, Nicholas Cordova, Thomas Laurin, Patrick Kelly, Daniel Schmit, Anthony Rosen & Gerardo Vega, Defendants, represented by Allan T. Slagel -- aslagel@taftlaw.com -- Taft Stettinius & Hollister LLP, Allison Emma Czerniak -- aczerniak@taftlaw.com -- Taft Stettinius & Hollister Llp, Barton James O'Brien -- obrien@taftlaw.com -- Taft Stettinius & Hollister LLP, Brian Weinthal -- bweinthal@taftlaw.com -- Taft Stettinius & Hollister LLP, Elizabeth Erin Babbitt, Taft Stettinius & Hollister LLC, Jeffrey M. Schieber, Taft Stettinius & Hollister LLP, Michael P. Sheehan -- msheehan@taftlaw.com -- Taft Stettinius & Hollister LLP & Richard Yao-yuan Hu -- rhu@taftlaw.com -- Taft Stettinius & Hollister LLP. John Does, Officers 1-14, Unknown Chicago Police Officers, Commander Glenn Evans, Unknown Chicago Police Officers, John Doe Officers 1-110, Kimberly Valenti, Pablo Vasquez & Dana Hillard, Defendants, represented by Brian Weinthal , Taft Stettinius & Hollister LLP. Anthony Gemignani, Defendant, represented by Allan T. Slagel , Taft Stettinius & Hollister LLP, Allison Emma Czerniak , Taft Stettinius & Hollister Llp, Barton James O'Brien , Taft Stettinius & Hollister LLP, Brian Weinthal , Taft Stettinius & Hollister LLP, Elizabeth Erin Babbitt , Taft Stettinius & Hollister LLC, Jeffrey M. Schieber , Taft Stettinius & Hollister LLP, Michael P. Sheehan , Taft Stettinius & Hollister LLP & Richard Yao-yuan Hu , Taft Stettinius & Hollister LLP. CIRCLE K: Rodriguez Wage & Hour Suit Remanded to State Court ------------------------------------------------------------ The United States District Court for the Central District of California issued an Order granting Plaintiff's Motion to Remand Action to State Court in the case captioned TIFFANY RODRIGUEZ, Plaintiff, v. CIRCLE K STORES INC., Defendant. Case No. ED CV 19-0469 FMO (SPx). (C.D. Cal.). Plaintiff Tiffany Rodriguez filed a complaint in the Riverside County Superior Court against defendant Circle K Stores Inc. Plaintiff brought suit on behalf of herself and all individuals who are or previously were employed by defendant in California and classified as non-exempt employees for a period spanning four years prior to the complaint's filing date. Plaintiff asserts six causes of action for: (1) unlawful business practices, in violation of Cal. Bus. & Prof. Code Sections 17200, et seq. (2) failure to pay overtime compensation, in violation of Cal. Lab. Code Sections 204, 510, 1194 & 1198 (3) failure to provide meal period premium pay, in violation of Cal. Lab. Code Sections 226.7 & 512; (4) failure to provide rest breaks, in violation of Cal. Lab. Code Sections 226.7 & 512 (5) failure to provide accurate itemized wage statements, in violation of Cal. Lab. Code Section 226; and (6) failure to pay wages when due, in violation of Cal. Lab. Code Sections 201-03. Removal of a civil action from the state court where it was filed is proper if the action might have originally been brought in federal court Class Action Fairness Act (CAFA) provides expanded original diversity jurisdiction for class actions meeting the amount in controversy and minimal diversity and numerosity requirements set forth in 28 U.S.C. Section 1332(d)(2). Under CAFA, district courts shall have original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which any member of a class of plaintiffs is a citizen of a State different from any defendant. AMOUNT IN CONTROVERSY The Plaintiff argues that defendant has failed to show, by a preponderance of the evidence, that more than $5 million is at stake in this litigation. For the reasons set forth below, the court agrees. Timely Payment of Wages In attempting to meet its burden of showing that more than $5 million is at issue, defendant first focuses on plaintiff's claim that defendant failed to make a timely payment of wages owed to terminated employees. Under California Labor Code Section 203(a), if an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 201.9, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. In other words, an employer that willfully fails to pay wages due an employee who is discharged or quits is obligated to pay the employee, in addition to the unpaid wages, an amount equal to the employee's daily wages for each day, not exceeding 30 days. The Defendant contends that, over the course of the class period, 3,536 non-exempt employees in California saw their employment come to an end. These employees had an average wage of $10.80 per hour, and worked an average of 7.5 hours per day. Thus, according to defendant, the purported failure to timely pay wages owed to outgoing employees exposed it to damages of 10.8 (average hourly rate) x 7.5 (average hours worked per day) x 3,536 (number of outgoing employees) x 30, or $8,592,480. But there is a serious problem with defendant's damages estimate. Namely, defendant assumes a violation rate of 100%. That is, defendant assumes that it will be found liable for failing to pay wages to each and every one of the 3,536 non-exempt employees who left their jobs over the relevant time period. Meal and Rest Break Claims The Plaintiff alleges that class members were from time to time unable to take off duty meal breaks and were not fully relieved of duty for meal periods, that they "were required to perform work as ordered by defendant for more than five hours without receiving a meal break, and that defendant failed to furnish second meal breaks from time to time" for employees who worked ten or more hours in a shift. The Defendant estimates that there were 324,084 work weeks during the class period. With an average hourly wage of $10.92, defendant assumes a rest break violation rate of one per work week, and calculates damages of $3,538,997. Applying the same math to plaintiff's meal break claims, defendant calculates a separate damages amount of $3,538,997. The court agrees with plaintiff that the fundamental assumption underlying defendant's meal and rest break damages calculation, i.e., that there was one violation per work week, is unwarranted. Indeed, defendant seems to have pulled this assumption out of thin air. In Munoz v. Central Parking Sys., Inc., 2010 WL 3432239, *2 (C.D. Cal. 2010), the court noted that a series of damages-related assumptions, including one that plaintiffs missed one meal period per week were unsupported. The court reached this conclusion because the defendant failed to provide any evidentiary support, and also because the defendant's calculations were made using the average hourly wage for all employees, when the real amount in controversy could be much lower depending on which employees were experiencing violations and their actual hourly wage. Here, the defendant's assumption of one violation per work week is even more attenuated given the Complaint's equivocal language regarding the frequency of meal and rest break violations. The Defendant argues that its one violation per week assumption is conservative given the allegations in the Complaint. Nevertheless, mere speculation and conjecture is not enough to establish removal jurisdiction. In short, the court will not give weight to defendant's damages estimate regarding the meal and rest break claims, because it rests upon an assumption devoid of any evidentiary support. Wage Statements California law requires employers to furnish accurate itemized wage statements in writing showing various pieces of information. An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with" this legal requirement is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not to exceed an aggregate penalty of four thousand dollars ($4,000). Plaintiff alleges that defendant's failure to properly calculate overtime wages, combined with missed meal and rest breaks, resulted in a failure to comply with California Labor Code Section 226. The Defendant asserts that it issued approximately 30,669 wage statements to putative class members between February 11, 2018, and October 15, 2018. Applying the penalty of $50 for initial inaccurate wage statements and $100 for subsequent inaccurate wage statements, defendant estimates potential damages of at least $2,923,900. Again, defendant's calculation is problematic. As with the timely-payment claim, defendant assumes, without any evidentiary support, a 100% violation rate. And defendant's claimed violation rate once again is not supported by the allegations in the Complaint, which simply alleges that defendant supplied deficient wage statements "from time to time rather than as a matter of course Overtime In its opposition brief, defendant raises a new ground for removal, claiming that $5,257,980 of damages are at issue with respect to plaintiff's overtime claim. However, defendant did not raise this ground in its NOR. Defendant furnishes no authority suggesting that it can invoke, in a brief, damages not raised in the NOR. The Defendant suggests that its overtime damages estimate could be treated as an amendment to the removal notice. A defendant seeking to remove a case to federal court must do so within thirty days of being served with the complaint. A defendant may amend the Notice of Removal after the thirty day window has closed to correct a defective allegation of jurisdiction. However, the NOR cannot be amended to add a separate basis for removal jurisdiction after the thirty day period. Accordingly, because defendant raises a new argument for removal in its opposition to the Motion to Remand, and inappropriately suggests that the court should allow it to amend the NOR to add new bases for removal after the thirty day removal period has run,the court declines to consider the overtime damages estimate defendant proffers. Attorney's Fees Finally, the NOR notes that plaintiff seeks attorney's fees. The Defendant estimates an attorney's fees rate of 25% is reasonable and, in light of defendant's previous amount-in-controversy estimate of $18,594,374, calculates attorney's fees of $4,648,593. However, the court agrees with plaintiff that this calculation is inherently flawed because it rests upon defendant's other, inadequately supported damages calculations. In other words, since defendant did not meet its burden to establish the amount in controversy with respect to any of plaintiff's claims by a preponderance of the evidence, it follows that the court cannot rely on plaintiff's request for attorney's fees, especially where defendant bases its claim on a percentage of the alleged total amount in controversy. A full-text copy of the District Court's July 11, 2019 Order is available at https://tinyurl.com/y5aqbgky from Leagle.com. Tiffany Rodriguez, an individual, on behalf of herself and on behalf of all persons similarly situated, Plaintiff, represented by Shani O. Zakay -- shani@zakaylaw.com -- Zakay Law Group APC, Aparajit Bhowmik -- aj@bamlawlj.com -- Blumenthal Nordrehaug Bhowmik De Blouw LLP, Kyle R. Nordrehaug -- KYLE@BAMLAWCA.COM -- Blumenthal Nordrehaug Bhowmik De Blouw LLP & Norman B. Blumenthal -- norm@bamlawca.com -- Blumenthal Nordrehaug Bhowmik De Blouw LLP. Circle K Stores Inc., a Corporation, Defendant, represented by Graham Michael Hoerauf -- graham.hoerauf@ogletree.com -- Ogletree Deakins Nash Smoak and Stewart PC, Mark Franklin Lovell -- mark.lovell@ogletree.com -- Ogletree Deakins Nash Smoak and Stewart PC & Patricia Ann Matias -- patricia.matias@ogletreedeakins.com -- Ogletree Deakins Nash Smoak and Stewart PC. CLINICA SIERRA: Torres Files Class Suit in California ----------------------------------------------------- A class action lawsuit has been filed against Clinica Sierra Vista. The case is styled as Maritza Torres, individually, and on behalf of other members of the general public similarly situated, Plaintiff v. Clinica Sierra Vista, a California Corporation, Defendant, Case No. BCV-19-101966 (Cal. Super. Ct., Kern County, July 16, 2019). The case type is stated as Other Employment - Civil Unlimited. Clinica Sierra Vista is a primary-care medical home providing affordable care for those in Kern, Fresno & Inyo counties.[BN] The Plaintiff is represented by: Edwin Aiwazian, Esq. Lawyers for Justice, PC 410 Arden Ave Ste 203 Glendale, CA 91203 Tel: (818) 265-1020 Fax: (818) 265-1021 Email: edwin@lfjpc.com CREATIVE SUPPORTS: Webb Seeks Overtime Pay for In-Home Caretakers ----------------------------------------------------------------- FRANCES WEBB, on behalf of herself and others similarly situated, the Plaintiff, v. CREATIVE SUPPORTS OF KANSAS CITY, LLC, JAMES GUYER, and LAUREN S. GUYER, the Defendants, Case No. 4:19-CV-549 (W.D. Mo., July 12, 2019), alleges that Defendants violated the Fair Labor Standards Act by forcing their employees to work a substantial amount of overtime without properly paying all compensation due, thus depriving them of rightful compensation for their work that Defendants are legally obligated to pay. According to the complaint, Webb worked for Defendants as a Direct Support Professional (DSP) or in-home caretaker in the greater Kansas City, Missouri area and was damaged by Defendants' illegal policy or practice. The Plaintiff was denied the compensation she is due under the FLSA. Creative Supports is a caregiving service company that provides services in and around the Kansas City, Missouri.[BN] Attorneys for the Plainitff are: Eric L. Dirks, Esq. WILLIAMS DIRKS DAMERON LLC 1100 Main Street, Suite 2600 Kansas City, MO 64105 Telephone: (816) 945-7110 Facsimile: (816) 945-7118 E-mail: dirks@williamsdirks.com - and - Robert W. Cowan, Esq. BAILEY COWAN HECKAMAN PLLC 5555 San Felipe Street, Suite 900 Houston, TX 77056 Telephone: (713) 425-7100 Facsimile: (713) 425-7101 E-mail: rcowan@bchlaw.com CREDIT SUISSE: Court Stays C. Laver Suit Pending 9th Cir. Ruling ---------------------------------------------------------------- In the case, CREDIT SUISSE SECURITIES (USA) LLC, Petitioner, v. CHRISTOPHER M. LAVER, Respondent, Case No. 18 Civ. 2920 (AT) (S.D. N.Y.), Judge Analisa Torres of the U.S. District Court for the Southern District of New York granted Laver's motion to stay the action pending a ruling from the Court of Appeals for the Ninth Circuit. Laver is a former Credit Suisse employee. He received a monthly salary and other compensation that was deferred and subject to certain vesting requirements. Laver alleges that he was damaged as a result of the automatic cancellation of his unvested contingent deferred awards upon his Dec. 4, 2015 resignation from Credit Suisse. As an employee, Laver agreed to comply with the Employment Dispute Resolution Program ("EDRP"), which requires arbitration of any Employment-Related Claims against Credit Suisse. On Feb. 7, 2018, Laver filed a putative class action in the U.S. District Court for the Northern District of California on behalf of himself and other similarly situated former Credit Suisse financial advisers terminated between Oct. 20, 2015 and March 31, 2016 and who at the time their employment with Credit Suisse terminated had unvested Credit Suisse deferred compensation awards pursuant to one or more Share Plan. On March 30, 2018, Credit Suisse filed two motions in that action. First, it moved to dismiss or, in the alternative, to stay the case arguing that the complaint should be dismissed in favor of arbitration. Its second motion sought to transfer the case to the Court. On April 3, 2018, Credit Suisse commenced the present action by filing a petition to compel arbitration. On June 21, 2018, Judge William H. Orrick granted Credit Suisse's motion to dismiss the California Action because Laver agreed to mediate and then arbitrate any claims regarding his employment with and compensation from Credit Suisse under the terms of the EDRP. Judge Orrick also denied the motion to transfer as moot. On July 17, 2018, Laver appealed that order, which appeal is currently pending before the Ninth Circuit. On Sept. 20, 2018, Laver filed the present motion to dismiss without prejudice or, in the alternative, to stay the action pending resolution of the appeal in the Ninth Circuit. In deciding whether to stay proceedings, courts in the Circuit examine the following five factors: (1) the private interests of the plaintiffs in proceeding expeditiously with the civil litigation as balanced against the prejudice to the plaintiffs if delayed; (2) the private interests of and burden on the defendants; (3) the interests of the courts; (4) the interests of persons not parties to the civil litigation; and (5) the public interest. Beginning with the first factor, although Credit Suisse has an interest in proceeding expeditiously, Judge Torres finds no serious prejudice to Credit Suisse if resolution of the action is delayed. With respect to the second factor, Laver, who has moved for the stay, will not be burdened by it. This factor is, therefore, neutral. The third factor, which examines the interests of the courts, weighs heavily in favor of a stay. Staying the action will best serve the interests of the courts by promoting judicial efficiency and minimizing the possibility of conflicts between different courts. With respect to the fourth factor, the interests of nonparties are inconsequential here for the same reasons that the prejudice of any delay to Credit Suisse is minimal. The fifth factor, the interest of the public, weighs slightly towards granting the stay because, although the public has an interest in the speedy resolution of every case, the public is also not served by any wasting of judicial resources. Accordingly, after balancing all the factors, the Judge finds that a stay is appropriate. For the reasons stated, Judge Torres granted Laver's motion to dismiss the complaint, or in the alternative, to stay the case insofar as it seeks a stay, and terminated without prejudice in all other respects. The action is stayed pending the Ninth Circuit's decision. Within three days of any ruling on the appeal pending in Laver v. Credit Suisse Securities (USA) LLC, No. 18-16328 (9th Cir. July 17, 2018), the parties will notify the Court by filing a joint letter on the docket. The Clerk of Court is directed to stay the action and terminate the motion at ECF No. 30. A full-text copy of the Court's May 29, 2019 Order is available at https://is.gd/EOm6Kl from Leagle.com. Credit Suisse Securities (USA) LLC, Petitioner, represented by Stephen M. Kramarsky -- skramarsky@dpklaw.com -- Dewey, Pegno & Kramarsky, LLP. Christopher M. Laver, Respondent, represented by Jeffrey K. Riffer -- jriffer@elkinskalt.com -- Elkins Kalt Weintraub Reuben Gartside LLP, pro hac vice, Julie Z. Kimball -- jkimball@elkinskalt.com -- Elkins Kalt Weintraub Reuben Gartside LLP, Rachel Geman, Lieff Cabraser Heimann & Bernstein, LLP & Roger Norton Heller -- rheller@lchb.com -- Leiff, Cabraser, Heimann & Bernstein LLP. DEJA VU SERVICES: Roe Suit Moved to Northern Dist. of California ---------------------------------------------------------------- The class action lawsuit against Deja Vu Services, Inc. et al., was transferred from the U.S. District Court for the Southern District of California, to the U.S. District Court for the Northern District of California (San Francisco) on July 11, 2019. The Northern District of California Court Clerk assinged Case No. 3:19-cv-03960-LB to the proceeding. The suit alleges violation of Fair LaborStandards Act. The case is assigned to the Hon. Judge Laurel Beeler. The Plaintiffs contend that all class members were denied their fundamental rights under applicable federal and state wage and hour laws, causing financial loss and injury. Specifically, the Plaintiffs complain that Defendants misclassified Plaintiffs and all other members of the Class as independent contractors, as opposed to employees, at all times in which they worked as dancers at Defendants' adult nightclubs located throughout California. The Plaintiffs contend that Defendants failed to pay Plaintiffs and all other members of the Class the minimum and overtime wages and other benefits to which they were entitled under applicable federal and California state laws. The case is captioned as Jane Roe No. 1 and 2. individually and on behalf of all others similarly situated, the Plaintiff, and Elana Pera, Penny Nunez, Sarah Murphy, Poohrawn Mehraban, Nicole Hughes, Angelynn Hermes, Gypsy Vidal, and Rashele Hamren, Intervenor Plaintiffs, vs. Deja Vu Services, Inc.; Harry Mohney; DOES 1-200, jointly and severally; Bijou-Century, LLC d/b/a New Century Theater; BT California, LLC d/b/a The Penthouse Club & Steakhouse; Chowderhouse, Inc., d/b/a Hungry I Deja Vu-San Francisco, LLC d/b/a Centerforlds Deja Vu Showgirls of San Francisco, LLC d/b/a Little Darlings of San Francisco; Gold Club-SF, LLC d/b/a Gold Club; S.A.W. Entertainment, Ltd., d/b/a Hustler San Francisco and the Condor Club; San Francisco Garden of Eden, LLC d/b/a Garden of Eden; San Francisco Roaring 20's, LLC d/b/a Roaring 20's; SFBSC Management, LLC; Grapevine Entertainment, Inc., doing business as: Deja Vu Showgirls; Nite Life East, LLC, doing business as: Little Darlings; SP Start Enterprise, Inc., doing business as: Deja Vu Coldwater, LLC, doing business as: Deja Vu Showgirls 3610 Barnett Ave., LLC, doing business as: Adult Superstore Jolar Cinema of San Diego, Ltd., doing business as: Jolar Cinema Showgirls; and Showgirls of San Diego, Inc., doing business as: Deja Vu Showgirls Stockton Enterprises, LLC, doing business as: Deja Vu Show, the Defendants, Case No. 3:19-cv-00196 (S.D. Cal.).[BN] Attorneys for the Plaintiffs are: Jeffrey R. Krinsk, Esq. FINKELSTEIN & KRINSK LLP 550 West C Street, Suite 1760 San Diego, CA 92101 Telephone: (619) 238-1333 Facsimile: (619) 238-5425 E-mail: jrk@classactionlaw.com Attorneys for the Intervenors: Shannon Liss-Riordan, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 Facsimile: (617) 994-5801 E-mail: sliss@llrlaw.com Attorneys for the Defendants are: Tammara N. Bokmuller, Esq. BOWMAN AND BROOKE LLP 750 B Street, Suite 1740 San Diego, CA 92101 Telephone: (619) 376-2500 Facsimile: (619) 376-2501 E-mail: Tammy.Bokmuller@bowmanandbrooke.com - and - Shane Michael Cahill, Esq. LONG & LEVIT, LLP 465 California Street, 5th Floor San Francisco, CA 94104 Telephone: (415) 438-4594 E-mail: scahill@longlevit.com DELTA AIR LINES: McGarry Appeals C.D. Cal. Order to Ninth Circuit ----------------------------------------------------------------- Plaintiff Teresa J. McGarry filed an appeal from a Court ruling in the lawsuit titled Teresa McGarry v. Delta Air Lines, Inc., et al., Case No. 2:18-cv-09827-MWF-E, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, the class action lawsuit (assigned Case No. 1:18-cv-02794) was transferred from the U.S. District Court for the Northern District of Georgia to the U.S. District Court for the Central District of California on November 21, 2018. Delta Air Lines, Inc. provides scheduled air transportation for passengers and cargo in the United States and internationally. Delta Air Lines, Inc. was founded in 1924 and is headquartered in Atlanta, Georgia. The appellate case is captioned as Teresa McGarry v. Delta Air Lines, Inc., et al., Case No. 19-55790, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by August 8, 2019; -- Transcript is due on September 9, 2019; -- Appellant Teresa J. McGarry's opening brief is due on October 17, 2019; -- Appellees Delta Air Lines, Inc. and [24]7.AI, Inc.'s answering brief is due on November 18, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant TERESA J. MCGARRY, on behalf of herself and all others similarly situated, is represented by: Denis F. Sheils, Esq. KOHN SWIFT & GRAF, P.C. 1600 Market Street, Suite 2500 Philadelphia, PA 19103-7225 Telephone: (215) 238-1700 E-mail: dsheils@kohnswift.com - and - Demet Basar, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Telephone: (212) 545-4600 E-mail: basar@whafh.com - and - Jon Anders Tostrud, Esq. TOSTRUD LAW GROUP, P.C. 1901 Avenue of the Stars Los Angeles, CA 90067 Telephone: (310) 278-2600 E-mail: jtostrud@tostrudlaw.com Defendant-Appellee DELTA AIR LINES, INC., is represented by: Joseph Nicholas Akrotirianakis, Esq. KING AND SPALDING LLP 633 W. 5th Street, Suite 1600 Los Angeles, CA 90071 Telephone: (213) 443-4355 Facsimile: (213) 443-4310 E-mail: jakro@kslaw.com - and - David L. Balser, Esq. KING & SPALDING LLP 1180 Peachtree Street NE Atlanta, GA 30309 Telephone: (404) 572-2782 E-mail: dbalser@kslaw.com Defendant-Appellee [24]7.AI, INC. is represented by: Teresa Carey Chow, Esq. BAKER & HOSTETLER LLP 11601 Wilshire Boulevard, Suite 1400 Los Angeles, CA 90025-0509 Telephone: (310) 820-8800 E-mail: tchow@bakerlaw.com - and - Casie D. Collignon, Esq. Paul G. Karlsgodt, Esq. BAKER HOSTETLER LLP 1801 California Street Denver, CO 80202 Telephone: (303) 861-0600 E-mail: ccollignon@bakerlaw.com pkarlsgodt@bakerlaw.com DIGNITY HEALTH: Ct. Extends Settlement Documents Deadline in Klatt ------------------------------------------------------------------ The United States District Court for the District of Nevada issued an Order to Continue Settlement Documents Deadline in the case captioned MEGAN KLATT, an individual, on behalf of herself and all others similarly situated, Plaintiff, v. DIGNITY HEALTH, a California corporation; DOES 1-50, unknown individuals; and ROE COMPANIES 1-50, unknown business entities, Defendants. Case No. 2:17-cv-02425-RFB-BNW. (D. Nev.). The Parties participated in a mediation and subsequently reached a settlement in principal. The Parties submitted a Stipulation and Order to Suspend Dispositive Motion Deadlines Pending Settlement (Stipulation to Suspend), requesting that the dispositive motion deadlines be suspended while the Parties worked diligently to draft and agree upon the requisite settlement documents. The Court issued an Order granting the Stipulation to Suspend and directed the Parties to file a stipulation to dismiss or dispositive motions. Since the last extension was granted, the Parties have continued to work diligently to finalize the settlement papers and have discussed additional changes to the settlement papers, but have been unable to finalize the documents in light of the Fourth of July holiday. As such, the Parties request an additional nine (9) days, through and including July 19, 2019, to complete the documents and submit the papers for Court approval. A full-text copy of the District Court's July 11, 2019 Order is available at https://tinyurl.com/y66qjlxb from Leagle.com. Megan E. Klatt, Plaintiff, represented by Christopher D. Kircher -- cdk@skrlawyers.com -- Semenza Kircher Rickard,Jarrod L. Rickard -- jlr@skrlawyers.com -- Semenza Kircher Rickard & Lawrence J. Semenza, III -- ljs@skrlawyers.com -- Semenza Kircher Rickard. Dignity Health, 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.. DR PEPPER/SEVEN UP: Villanueva Sues over Biometric Data Storage --------------------------------------------------------------- A class action complaint has been filed against Dr. Pepper/Seven Up, Inc. for alleged violations of Illinois' Biometric Information Privacy Act (BIPA). The case is captioned GIO VILLANUEVA, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff, v. DR. PEPPER/SEVEN UP, INC., Defendant, Case No. 2019CH07934 (Ill. Cir., Cook Cty., July 2, 2019). Plaintiff brings this class action complaint to stop Defendant's unlawful collection, use, and storage of Plaintiffs and the proposed Class' sensitive, private, and personal biometric data. The Defendant has allegedly exposed its employees, including Plaintiff, to serious and irreversible privacy risks by requiring them to have their fingerprints scanned by a biometric timekeeping device and by failing to destroy their biometric data when the initial purpose for collecting or obtaining such data has been satisfied or within three years of employees' last interactions with the company. In addition, this class action complaint alleges that the Defendant has violated the BIPA by failing to properly inform Plaintiff and others similarly situated in writing of the specific purpose and length of time for which their fingerprints were being collected, stored, disseminated and used. It also asserts that the Defendant did not provide a publicly available retention schedule and guidelines for permanently destroying the fingerprints and did not receive a written release from Plaintiff and others similarly situated to collect, store, disseminate or otherwise use their fingerprints. The Defendant is a soft-drink manufacturing company. It is a Delaware corporation that does business in Illinois. [BN] The Plaintiff is represented by: Brandon M. Wise, Esq. Paul A. Lesko, Esq. PEIFFER WOLF CARR & KANE, APLC 818 Lafayette Ave., Floor 2 St. Louis, MO 63104 Telephone: (314) 833-4825 E-mail: bwise@pwcklegal.com plesko@pwcklegal.com DYNAMIC RECOVERY: Reece Alleges Violation under FDCPA ----------------------------------------------------- A class action lawsuit has been filed against Dynamic Recovery Solutions, LLC. The case is styled as Annette Reece, a/k/a Annette Baird, individually and on behalf of all others similarly situated, Plaintiff v. Dynamic Recovery Solutions, LLC and Cavalry SPV I, LLC, Defendants, Case No. 2:19-cv-00121 (E.D. Tenn., July 16, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Act. Dynamic Recovery Solutions, LLC is a full-service collection agency based in South Carolina.[BN] The Plaintiff appears PRO SE. EAST WISCONSIN SAVINGS: Doberstein Moves for Class Certification ---------------------------------------------------------------- The Plaintiff in the lawsuit titled TIFFANY DOBERSTEIN on behalf of herself and all others similarly situated v. EAST WISCONSIN SAVINGS BANK, Case No. 1:18-cv-01931-WCG (E.D. Wisc.), moves for certification of a class action against the Defendant: All hourly-paid, non-exempt employees who are or have been employed by Defendant within two (2) years immediately prior to the filing of the Complaint (ECF No. 1) and who received non-discretionary forms of compensation in addition to regular wages that were not included in their regular rates of pay for overtime calculation purposes, are entitled to judgment as a matter of law. Between December 7, 2016, and December 7, 2018, all of the Defendant's hourly-paid, non-exempt employees ("Member Relations Representatives"), including the Plaintiff, were compensated with -- in addition to their regular, hourly rates of pay -- non-discretionary bonuses, each quarter, pursuant to the Defendant's incentive program, according to the Motion. These quarterly bonuses were made pursuant to the Defendant's known performance or productivity formula and were announced and/or known to the Defendant's Member Relations Representatives, including Ms. Doberstein, in order to encourage and/or reward their steady, productive, consistent, and efficient work performance and attendance. Ms. Doberstein contends that the Defendant failed to include these non-discretionary bonuses in Member Relations Representatives' regular rates of pay, including her regular rate of pay, when determining overtime compensation due to them during workweeks in which they worked more than 40 hours during the representative three month time period for which the non-discretionary bonuses covered in violation of Wis. Stat. Section 103.025(1)(c) and Wis. Admin Code Section DWD 274.03.[CC] The Plaintiff is represented by: James A. Walcheske, Esq. Scott S. Luzi, Esq. David M. Potteiger, Esq. WALCHESKE & LUZI, LLC 15850 W. Bluemound Rd., Suite 304 Brookfield, WI 53005 Telephone: (262) 780-1953 Facsimile: (262) 565-6469 E-mail: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com dpotteiger@walcheskeluzi.com EQUIFAX INC: Dawson Alleges Violation under ADA ----------------------------------------------- Equifax, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Leshawn Dawson, on behalf of himself and all others similarly situated, Plaintiff v. Equifax, Inc., Defendant, Case No. 1:19-cv-06615 (S.D. N.Y., July 16, 2019). Equifax Inc. is a data analytics and technology company that assists organizations and individuals in making informed business and personal decisions. Headquartered in Atlanta, Ga., Equifax operates or has investments in 24 countries in North America, Central and South America, Europe and the Asia Pacific region.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal EQUILON ENTERPRISES: Dimercurto Suit Removed to N.D. California --------------------------------------------------------------- The case captioned MARCO DIMERCURTO, CHARLES GAETH, JOHN LANGLITZ, and MALCOLM SYNIGAL on behalf of themselves and others similarly situated, Plaintiffs, v. EQUILON ENTERPRISES LLC DBA SHELL OIL PRODUCTS US, and DOES 1 THROUGH AND INCLUDING 25, Defendants, Case No. C19-01144 was removed from the Superior Court of the State of California, County of Contra Costa, to the United States District Court for the Northern District of California on July 12, 2019, and assigned Case No. 3:19-cv-04029. Plaintiffs allege that an Equilon "standby shift policy" gives rise to their claims for unpaid wages.[BN] The Defendants are represented by: GARY T. LAFAYETTE, ESQ. BRIAN H. CHUN, ESQ. BARBARA L. LYONS, ESQ. LAFAYETTE & KUMAGAI LLP 1300 Clay Street, Ste. 810 Oakland, CA 94612 Phone: (415) 357-4600 Fax: (415) 357-4605 Email: glafayette@lkclaw.com bchun@lkclaw.com blyons@lkclaw.com EVERYDAY BEAUTY: Court Denies Class Certification in Lin -------------------------------------------------------- The United States District Court for the Eastern District of New York issued a Memorandum Decision and Order denying Plaintiffs’ Motion for Class Certification in the case captioned LANQING LIN, et al., Plaintiffs, v. EVERYDAY BEAUTY AMORE INC., et al., Defendants. No. 18-cv-729 (BMC). (E.D.N.Y.). The Plaintiffs are former retail sales employees of beauty supply stores in the Everyday Beauty chain. The Plaintiffs are proceeding in a collective action on their Fair Labor Standards Act claims. The Plaintiffs' proposed class is as follows: All individuals who were employed by Defendants as sales representatives or store managers during the six years immediately preceding the initiation of this action up to September 18, 2016. To be eligible for class certification, plaintiffs must demonstrate that the four requirements of Rule 23(a) are met. Those requirements are: (1) the class is so numerous that joinder of all members is impracticable (numerosity) (2) there are questions of law or fact common to the class (commonality) (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (typicality) and (4) the representative parties will fairly and adequately protect the interests of the class (adequacy). With respect to numerosity, the plaintiffs claim that there are approximately 350 members in the proposed class, based on reasonable inferences from available facts. In the Second Circuit, "numerosity is presumed at a level of 40 members." The Plaintiffs have seemingly arrived at this 350 number for the six-year class period by roughly doubling the number of employees that the defendants identified as having worked at their stores during the approximately three-year collective period. That, of course, simply assumes the truth of the plaintiffs' theory of the case, that every single Everyday Beauty employee is subject to the NYLL and was not treated in compliance its strictures during their employment. Moreover, the plaintiffs' leap from the identified 166 employees to the approximated 350 employees is based on pure speculation. But, if their theory of the case is correct, then plaintiffs have established numerosity at either amount because 166 employees certainly satisfies the numerosity prong. That begs the question, however, of whether the plaintiffs have established that their class action theory is viable. It is their burden at class certification to advance enough facts to support the existence of the purported class. They must come forward with evidence to show that the inference they seek to draw that 350 employees experienced similar violations of the NYLL during their employment at Everyday Beauty is correct. In other words, the plaintiffs must show typicality and commonality: that what happened to them also happened to others. Judge Mann's conclusion was also based on the Supreme Court's indication in Wal-Mart, 654 U.S. at 354, that the evidentiary standards for admissibility of expert testimony established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), applies at the class certification stage. There is no logical reason to apply only some of the Rules of Evidence to class certification motions. They should either apply in full, or not at all. I therefore agree with Judge Mann's conclusion that the evidence proffered in support of a motion for class certification must be admissible. The clear implication from the quoted dicta is that the proof that Rule 23's requirements are satisfied must come in the form of competent, admissible evidence. Once the hearsay is set aside in the supporting affidavits, plaintiffs are only left with themselves. There are five individuals, each of whom are named in this lawsuit, who have come forward and attested to facts that suggest they were treated in violation of the NYLL. That does not say anything about what the other 345 employees experienced when they were employed at Everyday Beauty. Even assuming, however, that these hearsay statements could be considered in support of plaintiffs' motion for class certification, plaintiffs would still fail to show commonality and typicality. Once the allegations in the affidavits are de-duplicated for any mention of the same individuals and are narrowed to those allegations which are remotely grounded in the affiants' actual experiences, plaintiffs have identified a total of 23 employees, including themselves, who were allegedly subjected to unlawful practices under the NYLL. Otherwise, the plaintiffs simply conclude that everyone knows that all employees in each Everyday Beauty store are paid the same, because it was common knowledge that that is defendants' policy or that everyone who worked at my store was treated the same because I saw certain identified employees' pay stubs, so it must also be true that other stores followed suit. The Court rules that the Plaintiffs cannot certify a class on mere speculation. There is simply no evidence in the record that plaintiffs' allegations are common or typical of all or any other Everyday Beauty employees. Neither five nor 23 employees' experiences, standing alone, serves as the basis for certifying a class. Accordingly, the Plaintiffs' motion for class certification is denied. A full-text copy of the District Court's July 11, 2019 Memorandum Decision and Order is available at https://tinyurl.com/y45fap8m from Leagle.com. Lingmin Yang, Lanqing Lin, Yong Shan Su, Lixian Qian & En Lin Xiao, individually and on behalf of all other employees similarly situated, Plaintiffs, represented by Aaron Schweitzer, Troy Law, PLLC & John Troy, Troy & Associates, PLLC, 4125 Kissena Blvd Ste 119, Flushing, NY, 11355-3150, Mei Hui Jiang & Huanhuan Ke, Plaintiffs, represented by John Troy, Troy & Associates, PLLC. Everyday Beauty Amore Inc., Beauty Aritaum Corp., Xiu Qing Su, Everyday Amore LLC & Everyday Beauty Missha Corp., Defendants, represented by Felice B. Ekelman -- Felice.Ekelman@jacksonlewis.com -- Jackson Lewis, P.C., Christine Lee Hogan -- clhogan@littler.com -- Littler Mendelson, P.C., Douglas J. Klein -- Douglas.Klein@jacksonlewis.com -- Jackson Lewis LLP & Kevin K. Yam -- kyam@littler.com -- Littler Mendelson P.C. Xin Lin & Mei Hui Jiang, Defendants, represented by Felice B. Ekelman, Jackson Lewis, P.C. EVERYDAY BEAUTY: Lin's Retail Sales Workers Class Not Certified --------------------------------------------------------------- The Hon. Brian M. Cogan denied the Plaintiffs' motion for class certification in the lawsuit captioned LANQING LIN, et al. v. EVERYDAY BEAUTY AMORE INC., et al., Case No. 18-cv-729 (BMC) (E.D.N.Y.). The Plaintiffs are former retail sales employees of beauty supply stores in the "Everyday Beauty" chain. The Plaintiffs are proceeding in a collective action on their Fair Labor Standards Act claims. The Plaintiffs' proposed class is as follows: All individuals who were employed by Defendants as sales representatives or store managers during the six years immediately preceding the initiation of this action up to September 18, 2016. According to the Court's Memorandum Decision and Order, the Plaintiffs stated that this proposed class essentially consists of all of the Defendants' employees during the relevant six-year period. They estimate that this will include approximately 350 individuals. Judge Cogan notes that by claiming that all employees were paid the same as the affiants, the Plaintiffs mean to indicate that other employees -- both identified and unidentified -- also were not paid overtime. But the Plaintiffs only arrive there by conclusory statements, and they do not back up their conclusions with real facts, not to mention any facts about all of the Defendant's stores (or even a majority of them), Judge Cogan says. "Plaintiffs cannot certify a class on mere speculation. There is simply no evidence in the record that plaintiffs' allegations are common or typical of all (or any) other Everyday Beauty employees. Neither five nor 23 employees' experiences, standing alone, serves as the basis for certifying a class," Judge Cogan opines.[CC] FCA US: Kingston Files Suit in C.D. California ---------------------------------------------- A class action lawsuit has been filed against FCA US, LLC. The case is styled as Kelly Kingston individually and on behalf of similarly situated individuals, Plaintiff v. FCA US LLC a Delaware limited liability corporation, Defendant, Case No. 8:19-cv-01365 (C.D. Cal., July 12, 2019). The nature of suit is stated as Other Contract. FCA US LLC, together with its subsidiaries, designs, engineers, manufactures, distributes, and sells vehicles primarily in the United States.[BN] The Plaintiff is represented by: Robert Ahdoot, Esq. Ahdoot and Wolfson PC 10728 Lindbrook Drive Los Angeles, CA 90024 Phone: (310) 474-9111 Fax: (310) 474-8585 Email: rahdoot@ahdootwolfson.com FEIN & SUCH: Faces Stabile Suit in District of New Jersey --------------------------------------------------------- A class action lawsuit has been filed against Fein, Such, Kahn & Shepard, P.C. The case is captioned as SALVATORE STABILE individually and on behalf of all others similarly situated, the Plaintiff, vs. FEIN, SUCH, KAHN & SHEPARD, P.C., the Defendant, Case No. 2:19-cv-14644-WHW-CLW (D.N.J., July 2, 2019). The case is assigned to the Hon. Judge William H. Walls. The suit alleges violation of Fair Debt Collection Act. The Defendant provides legal services to clients in the practice areas of Business Law, Creditors' Rights, Litigation, Real Estate, and Tax.[BN] Attorneys for the Plaintiff are: Yitzchak Zelman, Esq. Ari Hillel Marcus, Esq. MARCUS ZELMAN, LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Telephone: (347) 526-4093 Facsimile: (732) 298-6256 E-mail: yzelman@marcuszelman.com ari@marcuszelman.com FORD MOTOR: K. Heslop Suit Remanded to Calif. Superior Court ------------------------------------------------------------ The United States District Court for the Northern District of California, San Jose Division, issued an Order granting Plaintiffs' Motion to Remand in the case captioned KELLY HESLOP, et al., Plaintiffs, v. FORD MOTOR COMPANY, et al., Defendants. Case No. 19-CV-01422-LHK. (N.D. Cal.). Plaintiffs Kelly Heslop and Garin Heslop bring this lawsuit against Defendants Ford Motor Company (Ford) and Lake Elsinore Ford for claims arising from Ford's sale of an allegedly defective vehicle. The Plaintiffs' complaint includes six causes of action: (1) violation of California Civil Code Section 1793.2(d) against Defendant Ford (2) violation of California Civil Code Section 1793.2(b) against Defendant Ford (3) violation of California Civil Code Section 1793.2(a)(3) against Defendant Ford (4) breach of express written warranty in violation of California Civil Code Sections 1791.2(a), 1794 against Defendant Ford (5) breach of the implied warranty of merchantability in violation of California Civil Code Sections 1791.1, 1794 against both Defendants and (6) fraud by omission against Defendant Ford. The Defendants removed the Plaintiffs' complaint to federal court. The Defendants' notice of removal states that the Court has diversity jurisdiction over the Plaintiffs' complaint. Although the Plaintiffs and Defendant Lake Elsinore are all citizens of California, the Defendants state that the Plaintiffs fraudulently joined Defendant Lake Elsinore, such that diversity jurisdiction is not defeated. The Plaintiffs' motion to remand argues that the Court lacks subject matter jurisdiction over the Plaintiffs' complaint because both the Plaintiffs and Defendant Lake Elsinore are citizens of California. The Defendants argue that the Court has diversity jurisdiction because the Plaintiffs fraudulently joined Defendant Lithia. For the reasons explained below, the Court agrees with the Plaintiffs. For the Court to have diversity jurisdiction, complete diversity of parties is required: In a case with multiple plaintiffs and multiple defendants, the presence in the action of a single plaintiff from the same State as a single defendant deprives the district court of original diversity jurisdiction over the entire action. However, fraudulently joined defendants who destroy diversity do not defeat removal. As this Court has previously explained, there is a general presumption against fraudulent joinder' and the defendant's burden of demonstrating that a joinder is fraudulent is a heavy' one. Joinder is fraudulent only when it is obvious according to the settled rules of the state that a plaintiff has failed to state a claim against a joined defendant. This standard imposes a very high bar on removing defendants. The Ninth Circuit has repeatedly held that if there is a possibility that a state court would find that the complaint states a cause of action against any of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court. To resolve fraudulent joinder claims, the Court may look beyond the pleadings to evidence proffered by the parties. In this case, the Plaintiffs allege against Defendant Lake Elsinore a claim for violation of the implied warranty of merchantability under the Song-Beverly Act. Thus, the question is whether it is obvious under settled California law that Plaintiffs cannot state an implied warranty claim against Defendant Lake Elsinore. Defendants' only argument for why Plaintiffs cannot state an implied warranty claim against Defendant Lake Elsinore is that the statute of limitations bars Plaintiffs' implied warranty claim. However, because it is possible under California law that Plaintiffs could allege tolling of the statute of limitations for his implied warranty claim, the Court concludes that Defendants have not met their heavy burden to show that Plaintiffs' inclusion of Defendant Lake Elsinore constitutes fraudulent joinder. The statute of limitations for an implied warranty claim is four years from the delivery of the vehicle. Plaintiffs alleges that they purchased the Vehicle on February 6, 2013. Thus, Defendants argue that the four-year statute of limitations expired in February 2017, two years before Plaintiffs filed their complaint on February 6, 2019. In cases where Defendant Ford raised the same fraudulent joinder arguments as in this case, courts including this Court have concluded that because fraudulent concealment tolling mayapply to implied warranty claims against a dealership defendant, remand was warranted. Here, although the Plaintiffs' complaint does not specify how fraudulent concealment tolling applies in the Plaintiffs' case, the Plaintiffs contend in their motion to remand that fraudulent concealment tolling applies because the Defendants failed to disclose a material defect to the Plaintiffs. The Defendants argue that the Plaintiffs' complaint does not allege any facts that give rise to a fraudulent concealment claim, but the Defendants misstate the question before the Court. At this stage, the question is not whether the Plaintiffs' complaint states a claim against Defendant Lake Elsinore, but only whether there is a possibility that Plaintiffs can allege fraudulent concealment tolling and state a claim against Defendant Lake Elsinore. At this point, the Court cannot conclude that it is impossible for Plaintiff to allege a timely implied warranty claim. Accordingly, the Court concludes that Plaintiffs' inclusion of Defendant Lake Elsinore was not fraudulent joinder and that the Court must remand the case to state for lack of jurisdiction. However, the Court declines to exercise its discretion to sever Defendant Lake Elsinore. Plaintiffs' claims against Defendant Ford and Defendant Lake Elsinore arise from the same series of transactions or occurrences. Plaintiffs bring their implied warranty of merchantability claim against both Defendants. The claim involves the same Vehicle and same defects as to both Defendants, such that judicial efficiency weighs against severing Defendant Lake Elsinore. Thus, the Court declines to sever Defendant Lake Elsinore under Rule 21. Accordingly, the Court grants the Plaintiffs' motion to remand and remands the instant case to California Superior Court for the County of Santa Clara. A full-text copy of the District Court's July 11, 2019 Order is available at https://tinyurl.com/y4ldtc9y from Leagle.com. Kelly Heslop & Garin Heslop, Plaintiffs, represented by Daniel Chung-Kwang Tai -- dtai@slpattorney.com -- Strategic Legal Practices, Tionna Grace Dolin -- tdolin@slpattorney.com -- Startegic Legal Practices, APC & Anh X. Nguyen -- anguyen@regallawoffice.com -- Strategic Legal Practices, APC. Ford Motor Company & Lake Elsinore Ford, Defendants, represented by Charles Frederick Harlow, Jr. -- charlow@schnader.com -- Schnader Harrison Segal & Lewis LLP. FOREVER LIVING: Dawson Alleges Violation under ADA -------------------------------------------------- Forever Living.com, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Leshawn Dawson, on behalf of himself and all others similarly situated, Plaintiff v. Forever Living.com, LLC, Defendant, Case No. 1:19-cv-06617 (S.D. N.Y., July 16, 2019). Forever Living Products International, Inc. is an American privately held multi-level marketing company based in Scottsdale, Arizona, which manufactures and markets aloe vera-based drinks and bee-derived cosmetics, dietary supplements, and personal care products. The company was founded in 1978 by CEO Rex Maughan.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal FORSTER & GARBUS: Deutsch Files FDCPA Suit in New York ------------------------------------------------------ A class action lawsuit has been filed against Forster & Garbus LLP. The case is styled as Naftela Deutsch and Shimon Deutsch, individually and on behalf of all others similarly situated, Plaintiffs v. Forster & Garbus LLP, Defendant, Case No. 1:19-cv-04116 (E.D. N.Y., July 16, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Act. Forster & Garbus LLP is a full service New York Law Firm concentrating on creditor's rights law since 1970.[BN] The Plaintiff is represented by: David M. Barshay, Esq. Barshay Sanders, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Tel: (516) 203-7600 Fax: (516) 706-5055 Email: dbarshay@barshaysanders.com - and - Craig B. Sanders, Esq. Barshay Sanders, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Tel: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@barshaysanders.com FORT MYERS, FL: Miller Seeks to Certify Class in Sludge Dump Suit ----------------------------------------------------------------- In the class action lawsuit styled as DERETHA MILLER, WILLIE LANKS, and TAMBITHA BLANKS, individually, and on behalf of a class of persons similarly situated, the Plaintiffs, v. THE CITY OF FORT MYERS, et al., the Defendants, Case No. 2:18-cv-00195-SPC-UAM (M.D. Fla.), the Plaintiffs ask the Court to certify a Property Class consisting of: "all natural persons, including any person claiming by, through or under a Class Member, who, as of the time of filing the original complaint, have interests in residential real property within a five block radius of the City's arsenic Sludge Dump." The lawsuit contends that the Defendants negligently created and maintained a sludge dump for arsenic contaminated lime sludge in an African-American neighborhood in Fort Myers for over fifty years causing property damages to surrounding property owners.[CC] Attorneys for the Plaintiffs are: James S. Whitlock, Esq. Gary A. Davis, Esq. DAVIS & WHITLOCK, P.C. Battery Park Ave., Suite 206 Asheville, NC 28801 Telephone: (828) 622-0044 Facsimile: (828) 398-0435 E-mail: gadavis@enviroattorney.com jwhitlock@enviroattorney.com - and - Ralf Brookes, Esq. RALF BROOKES ATTORNEY 1217 E Cape Coral Parkway No. 107 Cape Coral, FL 33904 Telephone: (239) 910-5464 Facsimile: (866) 341-6086 E-mail: Ralf@RalfBrookesAttorney.com RalfBrookes@gmail.com FOUR SEASONS: Intervenors' Bid to Remove Zyda as Class Rep Denied ----------------------------------------------------------------- In the case, 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.), Judge Leslie E. Kobayashi of the U.S. District Court for the District of Hawaii denied the Motion to Remove Christopher Zyda as Class Representative, or in the Alternative, to Prohibit Mr. Zyda from Encouraging Other Class Members to Personally Harass Intervenors filed by Intervenors James R. Mahoney, Ann Marie Mahoney, Judith Runstad, H. Jon Runstad, Jonathan Seybold, Patricia Seybold, David Keyes, Doreen Keyes, Julie Wrigley, Kevin Reedy, Lynn Reedy, Bradley Chipps, and J. Orin Edson on Feb. 28, 2019. There is a history of various disputes between the Defendants and certain homeowners at the Hualalai Resort. However, the focus of the claims and issues in the instant case is the Resort's policy change regarding the daily fees for renters and unaccompanied guests ("Daily Resort Guest Fees" or "DRGFs") that was announced in 2015 and took effect in 2016. The operative pleading in the case is the Plaintiffs' Second Amended Class Action Complaint for Damages, Declaratory, and Injunctive Relief, filed on April 30, 2018. Zyda filed the first two versions of the complaint in state court, and the state court certified the Class. The Defendants removed the case based on diversity jurisdiction, pursuant to the Class Action Fairness Act. The Intervenors are Resort homeowners and members of the Hualalai Club, i.e., they are members of the Class. However, they support the DRGFs that the Plaintiffs are challenging in the action. In the instant Motion, the Intervenors ask the Court to remove Zyda as a Class representative or, in the alternative, to issue an order requiring Zyda to 1) stop sending e-mails to his hui inviting them to personally approach the Intervenors; and 2) retract the Feb. 21, 2019 email he sent to his "hui." The matter came on for hearing on May 3, 2019. Judge Kobayashi has carefully considered all of the parties' submissions related to the Motion, but does not find that Zyda's conduct related to the case warrants his removal as a Class representative. However, she cautioned Zyda that, if he continues to engage in the type of conduct described in the Motion, that analysis may change. Such conduct, if it continues after the instant Order, may warrant sanctions when it is viewed in the context of the case as a whole and in light of the admonition in the Order. At a minimum, the Court will issue an order to show cause, requiring Zyda to appear in person before the Court to explain his actions. The potential sanctions may ultimately include removing Zyda as a Class representative and requiring the Plaintiffs to identify a new representative, who must also meet the requirements of Rule 23(a)(4). Meyer is still listed as a Plaintiff in the action and the Intervenors argue that she could continue to serve as the Class representative if Zyda were removed. However, the Plaintiffs have represented that Meyer was only named for purposes of the claim under the Condominium Property Act, Haw. Rev. Stat. Chapter 514B ("Count I"), and her participation is no longer required in light of the disposition of Count I. Thus, if Zyda were to be removed as the Class representative, a new representative -- who has not previously participated in the case as a named plaintiff -- would have to be identified. The identification of such a person would likely delay the trial in the case, which is currently scheduled to begin on Sept. 3, 2019. Zyda is therefore encouraged to conduct himself in an appropriate manner so as to avoid such a delay. On the basis of the foregoing, Judge Kobayashi denied the Intervenors' Motion. A full-text copy of the Court's June 4, 2019 Order is available at https://is.gd/Y9r3Lc 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. GASSEN COMPANY: Johnson Files Class Suit in Minnesota ----------------------------------------------------- A class action lawsuit has been filed against Gassen Company Inc. The case is styled as Lance J Johnson on behalf of himself and all others similarly situated, Plaintiff v. Gassen Company Inc., Defendant, Case No. 0:19-cv-01831 (D. Minn., July 12, 2019). The Plaintiff filed the case under the Electronic Fund Transfer Act. Gassen Company offers homeowner association management and property management.[BN] The Plaintiff is represented by: Thomas John Lyons, Jr., Esq. Consumer Justice Center, P.A. 367 Commerce Court Vadnais Heights, MN 55127 Phone: (651) 770-9707 Email: tommy@consumerjusticecenter.com GATES CORPORATION: Class of Workers Certified in Lundine Suit ------------------------------------------------------------- The Hon. Eric F. Melgren grants the Plaintiff's Motion for Conditional Class Certification in the lawsuit titled PEGGY LUNDINE, on behalf of herself and others similarly situated v. GATES CORPORATION, Case No. 6:18-cv-01235-EFM-JPO (D. Kan.). The Court defines the class as: "All current and former nonexempt hourly manufacturing employees who were employed by Gates from July 11th, 2016, to the present." According to the Court's Memorandum and Order, the parties should ensure that this class definition is included in the final notice and is consistent throughout. Ms. Lundine brings this collective class action lawsuit under Section 216(b) of the Fair Labor Standards Act on behalf of all similarly situated nonexempt manufacturing employees working at Defendant Gates Corporation's 14 manufacturing facilities in 11 states. Judge Melgren ruled that within 14 days of this order, Gates provide Ms. Lundine with names, addresses, telephone numbers, and email addresses of each of the class members in an easily malleable format, such as Microsoft Excel; and that Gates provide Lundine with the last four digits of the social security numbers only for class members whose mail notices are returned undeliverable, so Ms. Lundine can locate a viable mailing address. Judge Melgren ordered the parties to negotiate a notice consistent with the Court's ruling regarding the issues addressed above; and that Gates post the agreed-upon notice in both English and Spanish in conspicuous locations where it employs hourly, nonexempt manufacturing employees at its Alabama, Arkansas, Georgia, Illinois, Kentucky, Missouri, New Hampshire, Pennsylvania, Texas, and Kansas facilities. Ms. Lundine is approved as the class representative and that her counsel is approved as class counsel in this matter.[CC] GATES CORPORATION: Court OKs Conditional Certification in Lundine ----------------------------------------------------------------- The United States District Court for the District of Kansas issued a Memorandum and Order granting Plaintiffs' Motion for Conditional Class Certification in the case captioned PEGGY LUNDINE, on behalf of herself and others similarly situated, Plaintiff, v. GATES CORPORATION, Defendant. Case No. 18-1235-EFM. (D. Kan.). Lundine brings this collective class action lawsuit under Section 216(b) of the Fair Labor Standards Act (FLSA) on behalf of all similarly situated nonexempt manufacturing employees working at Defendant Gates Corporation's 14 manufacturing facilities in 11 states. Lundine asserts that Gates failed to compensate her and other similarly situated employees for overtime work. Lundine alleges that Gates regularly required her to work before and after her scheduled shift while prohibiting her from reporting the overtime work. She alleges that by this policy and practice, Gates routinely denied overtime compensation to many hourly, nonexempt manufacturing employees across Gates's various nationwide facilities. She now moves for conditional class certification under the FLSA to proceed with the lawsuit on behalf of herself and others similarly situated. First, in the initial notice stage, the court determines whether a collective action should be certified for purposes of sending notice of the action to potential class members. The notice stage requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan. The standard for conditional certification at the notice stage is lenient and typically results in certification for the purpose of notifying potential plaintiffs. The second step of the ad hoc approach occurs after discovery. At this stage, the district court applies a stricter standard and reviews the following factors to determine whether the opt-in plaintiffs are similarly situated: (1) the disparate factual and employment conditions of the individual plaintiffs, (2) defenses available to the defendant that are individual to each plaintiff, and (3) other fairness and procedural conditions. Lundine has made Substantial Allegations that the Putative Class Members were together Victims of a Gates's Policy or Plan. The standard for certification at the notice stage is lenient and typically permits conditional certification of a representative class. This is, at least in part, due to the fact that the Court has minimal evidence at this stage. The Court may choose to consider only pleadings and affidavits filed by the Plaintiff to evaluate whether the Plaintiffs have made substantial allegations, because it is not yet at the evidence-weighing stage. The Court concludes that Lundine has made substantial allegations to support conditional class certification. Lundine alleges that Gates required her to work overtime without pay. She attaches affidavits from 12 other employees alleging the same thing. Using herself and the other 12 employees as examples, Lundine alleges that Gates has a policy or plan that violates the FLSA. At this stage in the proceedings, Lundine has presented more than enough substance to satisfy the lenient standard for conditional certification. The Court therefore grants conditional class certification. Class Definition Lundine asks the Court to adopt the following class definition: All current and former nonexempt hourly manufacturing employees who were employed from ___ to the present. Gates objects to this definition, arguing that it is overly broad. Gates asks the Court to limit the definition to include only the locations and positions of the employees who submitted sworn affidavits accompanying Lundine's complaint. In defense of its position, Gates relies on Stubbs v. McDonald's Corp., 227 F.R.D. 661 (D. Kan. 2004), which rejected conditional class certification because the plaintiff failed to allege any similarity between its job duties and those of the other putative class members. In that case, the plaintiff sought to certify a class whose members would consist of first and second assistant managers. The court held that the plaintiff, a second assistant manager lacked standing to represent first assistant managers since the plaintiff had never held the position of first assistant manager. Importantly, the cause of action was for improperly classifying plaintiff and the putative class as `exempt' employees rather than `non-exempt' and thereby failing to pay plaintiff and the putative class compensation for overtime hours worked. Here, the duration of employees' work is what matters most. While Lundine and the putative class members may occupy diverse roles within Gates's manufacturing process, their claims are common in that they allege Gates required them to work beyond their scheduled hours while depriving them of the statutorily mandated overtime pay. The breadth of job positions in the putative class, and the diversity of duties in those positions, is not as relevant to this cause of action as it was in Stubbs. A full-text copy of the District Court's July 11, 2019 Order is available at https://tinyurl.com/y22o6f8x from Leagle.com. Peggy Lynn Lundine, on behalf of herself and others similarly situated, John Stronghoner, Jim Aikens, Jeanne L. Carson, Andrew DeSpain, Shawn W. Tubbs, Hannah Arnold, Elizabeth Lydy, Mary Von Kannon-Marchand, Anthony Rogers, Ethan Hammock, Tyler Chamberlain, Jeremey Chamblee, Courtney Belue, Zachary Tehee, Ellis Wooten, Harlon D. Farr, Jr., Christopher Thorton & Leslie Thomason, Plaintiffs, represented by Brendan J. Donelon, Donelon, PC & Daniel W. Craig, Donelon, PC., 4600 Madison, Suite 810, Kansas City, MO 64112 Gates Corporation, Defendant, represented by Christopher J. Eby -- christopher.eby@akerman.com -- Akerman, LLP, pro hac vice, Christopher S. Shank -- chris@shankmoore.com -- Shank & Moore, LLC, Colin L. Barnacle -- colin.barnacle@akerman.com -- Akerman, LLP, pro hac vice & David Lee Heinemann -davidh@shankmoore.com -- Shank & Moore, LLC. GENERAL MOTORS: Ramirez Sues Over Defective Steering System ----------------------------------------------------------- MARTIN RAMIREZ and LIZETH RAMIREZ, Plaintiffs, v. GENERAL MOTORS LLC; and DOES 1 through 10, inclusive, Defendants, Case No. 19STCV24183 (Cal. Super. Ct., Los Angeles Cty., July 11, 2019) is an action seeking to redress KMA's violations of California consumer fraud statutes, and also seeks recovery for Defendant's breach of express warranty, breach of implied warranty, breach of the duty of good faith and fair dealing, and common law fraud. General Motors was engaged in the business of designing, manufacturing, constructing, assembling, marketing, distributing, and selling automobiles and other motor vehicles and motor vehicle components in Los Angeles County. Plaintiffs purchased a 2011 GMC Acadia, vehicle identification number 1GKKRPED9BJ381366, (hereafter "Subject Vehicle"), from Woodland Motors Corp., which was manufactured and or distributed by Defendant on or about August 16, 2011,. Plaintiff received an express written warranty, including, the 3-year/36,000 mile basic bumper-to-bumper warranty, a 5-year/100,000 mile powertrain warranty which covers, inter alia, the engine and transmission, and subsequently received a 10-year/150,000 mile extended service coverage adjustment (e.g. extended warranty) which covers power steering system and/or related components. Defendant undertook to preserve or maintain the utility or performance of the Subject Vehicle or to provide compensation if there is a failure in utility or performance for a specified period of time. The warranty provided, in relevant part, that in the event a defect developed with the Subject Vehicle during the warranty period, Plaintiffs could deliver the Subject Vehicle for repair services to Defendant's representative and the Subject Vehicle would be repaired. During the warranty period, the Subject Vehicle contained or developed defects Said defects substantially impair the use, value, or safety of the Subject Vehicle. GM knew since 2010, if not earlier, that the 2009-2012 GMC Acadia vehicles, including the 2011 GMC Acadia, contained one or more design and/or manufacturing defects in their integral steering system that could cause it to intermittently and drastically fail while the car is in motion (the "Steering Defect"), thus creating a serious safety risk. Specifically, GM knew (or should have known) that the steering system had one or more defects, including but not limited to, those causing the premature bleeding of the power steering system, defects causing the power steering to make abnormal noises such as whining, and/or defects causing the need to prematurely replace the steering gear, and/or any other similar concern identified in the repair history for the Vehicle. The Steering Defect can have serious consequences on the handling, maneuvering and stability of the subject vehicle while in operations, thereby contributing to car accidents, which can cause personal injury or death, says the complaint.[BN] The Plaintiff is represented by: Tionna Dolin, Esq. Daniel Tai, Esq. Strategic Legal Practices A Professional Corporation 1840 Century Park East, Suite 430 Los Angeles, CA 90067 Phone: (310) 929-4900 Facsimile: (310) 943-3838 Email: tdolin@slpattorney.com dtai@slpattorney.com HANDS ON NURSING: Pa. Court Dismisses Jackson FLSA Suit ------------------------------------------------------- In the case, STACEY JACKSON, KEYSHA SCOTT, And SHEENA WARREN, Plaintiffs, v. HANDS ON NURSING, INC., Defendant, Case No. 1:18-cv-2442 (M.D. Pa.), Judge John E. Jones of the U.S. District Court for the Middle District of Pennsylvania granted the Defendant's Motion to Dismiss Plaintiffs' Complaint. Plaintiffs Jackson, Scott, and Warren, bring the collective and class action claiming that the Defendant failed to pay its direct care workers required overtime pay pursuant to the Fair Labor Standards Act ("FLSA"), Pennsylvania's Minimum Wage Law ("PMWL"), and Pennsylvania's Wage Payment and Collection Law ("PWPCL"). The Defendant, a corporation also headquartered in Lebanon, Pennsylvania, provides direct-care services, including companionship, personal care and domestic assistance to individuals with disabilities and the elderly in their homes. Jackson worked for Defendant from October 2013 to June 11, 2018. Scott worked for Defendant from August 2015 to March 2017. Warren, who began working for Defendant in June 2012, continues her employment. As direct-care workers, the Plaintiffs provided the Defendant's clients with companionship, personal care and domestic assistance services. The Defendant maintained an overtime policy which entitled employees to overtime pay, consisting of one and a half times their regular hourly rate, for time worked in excess of 80 hours in a 14-day period with the same client. It did not calculate overtime by totaling all hours worked but, instead, considered only hours worked with a single client and excluded time spent traveling from one client to the next. Even where more than 40 hours of work for a single client was performed in a given week, the Defendant did not pay overtime rates. The Plaintiffs filed the present Complaint on Dec. 27, 2018. On Feb. 27, 2019, the Defendant sent the Plaintiffs checks representing "an unconditional payment of complete relief" that included back overtime pay due, liquidated damages, and an additional 10%. The Plaintiffs did not cash or deposit the checks. On March 1, 2019, the Defendant filed the instant Motion to Dismiss Plaintiffs' Complaint for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. On March 26, 2019, it issued new checks to the Plaintiffs that corrected the application of wage taxes and withholdings. The Plaintiffs, again, did not cash or deposit this checks initially. The case proceeded to mandatory mediation on May 15, 2019, which ultimately was unsuccessful. Although the Motion was fully briefed prior to mediation, the Defendant supplemented the factual record after mediation to present additional exhibits to the Court showing that the Plaintiffs deposited the March 26, 2019, checks they received from the Defendant shortly before the mediation. The Defendant argues that the Plaintiffs no longer have standing to bring their claims because it tendered them the full amount of back overtime pay due, plus liquidated damages, plus an additional 10 percent. At the time of the parties' briefing, the Plaintiffs had not cashed or deposited the checks; thus, a central focus of the arguments on both sides was whether an unconditional, but unaccepted, settlement offer could moot the Plaintiffs' claims. However, Judge Jones finds that the Defendant has provided copies of canceled checks showing that the Plaintiffs have now deposited the checks. The Plaintiffs have provided no evidence, whether through supplemental affidavits or a motion to file a surreply brief, contradicting the Defendant's assertion that the payments constitute complete relief, despite having opportunities to do so. By all appearances, therefore, the Plaintiffs have accepted the Defendant's payment in satisfaction of, and mooting, their individual claims. What remains before the Court is whether the action should continue for the benefit of the putative class members. The Judge holds that although Rule 23 "opt-out" class actions operate differently, the Rule 23 class claims are based on Pennsylvania statutes, and the Court would exercise only supplemental jurisdiction over them. While it may exercise supplemental jurisdiction, the Court retains the right to decline such jurisdiction if it has dismissed all claims over which it had original jurisdiction, as it has in the case. In this case, the Judge will decline further supplemental jurisdiction. To do otherwise would be absurd, as the Courte would continue to permit a federal class action between non-diverse parties for violating Pennsylvania law. For these reasons, Judge Jones dismissed the Plaintiff's FLSA claims for lack of standing and declined to further exercise supplemental jurisdiction over their state claims. An order in accordance with the memorandum will separately issue. A full-text copy of the Court's June 4, 2019 Memorandum is available at https://is.gd/DXHBY3 from Leagle.com. Stacey Jackson, Keysha Scott & Sheena Warren, Plaintiffs, represented by Peggy M. Morcom -- Morcom@buzgondavis.com -- Buzgon Davis. Hands-On-Nursing, Inc., doing business as Hands-On-Nursing, Defendant, represented by Anthony T. Bowser, Krevsky Bowser LLC. HAT WORLD: Court Extends Time to File Discovery Plan in Harris -------------------------------------------------------------- The United States District Court for the District of Nevada issued an Order extending Time to File Proposed Discovery Plan in the case captioned ALEXIS HARRIS, on behalf of herself and all others similarly situated, Plaintiff, v. HAT WORLD, INC. d/b/a and a/k/a LIDS LOCKER ROOM; DOES 1 through 50; inclusive, Defendant(s). Case No. 2:19-cv-00882-JAD-GWF. (D. Nev.). The parties proposed discovery plan is currently due on July 15, 2019. The Defendant's counsel presented to the Plaintiff's counsel a courtesy copy of the purported arbitration agreement upon which the Defendant intends to move to compel arbitration. The Plaintiff's counsel is currently reviewing the purported arbitration agreement. Following such review, the parties will meet and confer in good faith to explore the possibility of mutually submitting to arbitration, the status of the matter, and any other potential threshold issues. The parties request a period of twenty-one additional days up to and including August 5, 2019 to file a proposed discovery plan and scheduling order should the parties not achieve agreement on whether this matter should be submitted to arbitration. Wherefore, the parties respectfully request a period of twenty-one additional days up to and including August 5, 2019 to file a proposed discovery plan and scheduling order should the parties not achieve agreement on whether this matter should be submitted to arbitration. A full-text copy of the District Court's July 11, 2019 Order is available at https://tinyurl.com/y6bd5xlp from Leagle.com. Alexis Harris, Plaintiff, represented by Christian James Gabroy -- christian@gabroy.com -- Gabroy Law Offices, Joshua D. Buck -- josh@thiermanbuck.com -- Thierman Buck, LLP, Kaine M. Messer -- kmesser@gabroy.com -- Gabroy Law Offices & Mark R. Thierman -- mark@thiermanbuck.com -Thierman Buck, LLP. Hat World, Inc., also known as LIDS LOCKER ROOM, doing business as LIDS LOCKER ROOM, Defendant, represented by Cheryl A. Sabnis -- csabnis@kslaw.com -- King & Spalding LLP, pro hac vice, Joni A. Jamison -- ijamison@kcnvlaw.com -- Kaempfer Crowell & Robert R. McCoy rrnccoy@kcnvlaw.com -- Kaempfer Crowell. HAYNEEDLE INC: Dawson Alleges Violation under Disabilities Act -------------------------------------------------------------- Hayneedle, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Leshawn Dawson, on behalf of himself and all others similarly situated, Plaintiff v. Hayneedle, Inc., Defendant, Case No. 1:19-cv-06624 (S.D. N.Y., July 16, 2019). Hayneedle is an online retail company based in Omaha, Nebraska with a focus on furnishings and decor. In 2016, Hayneedle was acquired by Jet.com, which later became a subsidiary of Walmart.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal HERSHEY CO: Court Denies Bid for Summary Judgment in Clark Suit --------------------------------------------------------------- In the case, HOWARD CLARK, TODD HALL, ANGELA PIRRONE, individually and on behalf of all others similarly situated, Plaintiffs, v. THE HERSHEY COMPANY, a Delaware corporation, Defendant, Case No. 18-cv-06113 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California denied Hershey's motion for summary judgment. In the food case, a previous order converted Hershey's Rule 12(b)(6) motion to dismiss into a motion for summary judgment and allowed immediate discovery. The action challenges the purported use of an ingredient, malic acid. In Hershey's Brookside Dark Chocolate product line, chocolate-covered candy balls filled with fruit-flavored gel, Hershey claims that malic acid was used as a pH balancer to properly gel the fruit center of the candies, but plaintiffs allege malic acid was used as an artificial flavoring agent. These chocolate balls are sold in bag-shaped packaging, some of which have banners across the top of the front stating "No Artificial Flavors, No Artificial Colors." The Plaintiffs claim that Brookside Dark Chocolate candy products violate California, New York, and federal statutes because each of the products contain malic acid as an additional flavoring ingredient that simulates and reinforces the characterizing flavor, and that the front label should disclose that malic acid serves the function of adding flavor rather than misleadingly suggesting that the product is flavored only by natural fruit juices. In the putative class action, the Plaintiffs allege 12 claims, including (1) fraud by omission, (2) negligent misrepresentation, (3) violation of California's Consumers Legal Remedies Act ("CLRA"), (4) violation of California's Unfair Competition Law, (5) violation of California's False Advertising Law, (6) breach of express and implied warranties, (7) violations of Sections 349 and 350 of New York General Business Laws, and (8) claims for breach of express and implied warranties under New York U.C.C. Sections 2-313 and 2-314. Under FDA regulations, malic acid has three prescribed uses in food: as a flavor, as a flavor enhancer, or to help control pH. 21 C.F.R. Section 184.1069(c). Hershey argues that (1) malic acid is used with pectin in order to balance the pH and therefore to properly gel the fruit flavors at the center of the candy, (2) malic acid is not used as a flavor, and (3) only the Brookside Dark Chocolates with gelled fruit centers have malic acid in their ingredient list. Hershey states that it properly disclosed malic acid on its nutrition list of ingredients because Hershey used malic acid for an FDA-approved function, pH balancing, and not as a flavor or flavor enhancer. Given the importance of this factual dispute, Hershey's motion to dismiss was treated as one for summary judgment under Rule 12(d). Immediate discovery into the issue of the functional use of malic acid was allowed and the parties were given reasonable opportunity to present all material pertinent to the motion. The Plaintiffs' burden is to provide specific facts showing that there is a genuine issue for trial. They present two items elicited via discovery from Hershey that they claim support their material fact issue that malic acid is used as a flavor in the Brookside products. Together, these two items are sufficient such that the record, taken as a whole, could support a rational trier of fact in finding for the nonmoving party on that issue. First, the Plaintiffs present a chart provided in discovery of an ingredient list for "Crunchy Clusters - Berry Medley Flavors," one of the products sued on. This ingredient list looks at each ingredient and "explains" why that ingredient is used in the product. Second, also provided in discovery, the Plaintiffs present an email from former Hershey scientist Joe McLeod that shows a chart that discusses replacing malic acid with another acid in the Brookside Blueberry-Acai product. The email specifically noted "Malic Acid is thought to be important to the flavor profile and for increasing the 'setting time' to prevent pre-gelling during depositing." Though manufacturers must make many balancing decisions when taking products to market, in the matter, the Court is only addressing the issue of whether there is a triable material fact issue. Although Hershey states that their use of malic acid only has an ancillary effect of adding a sour taste, as does any acid, Hershey's own documents discuss the use of malic acid in a flavor context and this creates a genuine factual dispute as to the function of malic acid in the Brookside products. The Judge concludes that there is a genuine dispute as to whether malic acid acts as a flavoring agent in the Brookside products, elicited from evidence provided by Hershey in discovery. It would be inappropriate to grant a summary judgment motion when a genuine factual dispute exists. For the reasons stated, he denied Hershey's motion for summary judgment. The parties will continue to pursue discovery pursuant to the case management schedule. A full-text copy of the Court's May 29, 2019 Order is available at https://is.gd/T1cbk9 from Leagle.com. Howard Clark, individually, on behalf of all others similarly situated, and the general public, Todd Hall, individually, on behalf of all others similarly situated, and the general public & Angela Pirrone, individually, on behalf of all others similarly situated, and the general public, Plaintiffs, represented by David W. Reid, Pacific Trial Attorneys, APC, Lilach Halperin, Law Offices of Ronald A. Marron, Michael Houchin -- mike@consumersadvocates.com -- Law Offices of Ronald A. Marron & Ronald A. Marron -- ron@consumersadvocates.com -- Law Offices of Ronald A. Marron, APLC. The Hershey Company, a Delaware corporation, Defendant, represented by Brian H. Chun -- bchun@lkclaw.com -- Lafayette & Kumagai LLP, Gabriela Bersuder, pro hac vice, Gary T. Lafayette -- glafayette@lkclaw.com -- Lafayette & Kumagai LLP, Jane Marie Metcalf -- jmetcalf@pbwt.com -- Patterson Belknap Webb and Tyler LLP, pro hac vice, Michael Sochynsky -- msochynsky@pbwt.com -- Patterson Belknap Webb & Tyler LLP & Steven A. Zalesin -- sazalesin@pbwt.com -- Patterson Belknap Webb and Tyler LLP, pro hac vice. HOME DEPOT: Summary Judgment Denied in Utne Wage & Hour Suit ------------------------------------------------------------ The United States District Court for the Northern District of California issued an Order denying Defendant's Motion for Partial Summary Judgment in the case captioned JOHN UTNE, Plaintiff, v. HOME DEPOT U.S.A., INC., Defendant. Case No. 16-cv-01854-RS. (N.D. Cal.). This class action labor dispute arises from the alleged failure of defendant Home Depot U.S.A., Inc. (Home Depot) to pay its store employees, including named plaintiff John Utne, for the full amount of time worked. The operative Third Amended Complaint advances five claims under California Law for (1) failure to pay hourly wages, (2) failure to provide accurate written wage statements, (3) failure timely to pay all wages at the termination of employment, (4) violation of California's Unfair Competition Law, and (5) civil penalties arising from Home Depot's alleged violation of various provisions of the state labor code. The Plaintiffs allege that Home Depot is liable (1) to the Lock-In Class for employee time spent waiting to be let out of the store after clocking out and (2) to the Hourly Employee Class for time spent walking to the back of the store and donning the required orange work aprons before clocking in. Liability to Hourly Employee Class The Plaintiffs seek a partial summary judgment finding that Home Depot is liable to the Hourly Employee Class for time spent walking to the back of the store and donning the required orange work aprons before clocking in. Home Depot seeks partial summary judgment that the company is not liable for failure to pay employees for this time, or for the waiting time and wage statement claims that derive therefrom. First Claim: Failure to Pay for Pre-Shift Time The Plaintiffs argue Home Depot's policy prohibited employees from remaining in the store unless they are working or shopping, combined with its policy instructing employees to put on their aprons before clocking in shows employees are subject to Home Depot's control immediately upon entering the store. In Home Depot's view, however, the fact that numerous employees engaged in personal activity before starting their shifts definitively shows employees were notsubject to Home Depot's control during this pre-shift time. Accordingly, Home Depot argues, it is not liable for failure to pay for this time, or for the waiting time and wage penalty claims which derive from this alleged failure to pay. Both parties' arguments are unavailing. First, there is a factual dispute regarding whether Home Depot's policy prohibiting employees from remaining in the store applied to the beginning of the workday. Pennington's testimony on this point is ambiguous. That class members admit to spending time on personal activity on Home Depot's premises while waiting to begin their shifts further suggests this policy may indeed have applied exclusively to the end of the work day. Ultimately, however, this question of fact is reasonably subject to dispute. If indeed employees were prohibited from arriving early and engaging in leisure activity while waiting to begin work, or prohibited from using their cell phones in the store, this would weigh in favor of a finding that they are subject to Home Depot's control immediately upon their arrival. By contrast, if this policy applied exclusively to the end of the day, a reasonable jury could conclude Plaintiffs were not subject to Home Depot's control immediately upon entering the store. While the Plaintiffs try to characterize any time class members may have spent on personal activities as a damages issue, this personal activity sheds light on whether Home Depot actually exercised control over employees as soon as they entered the store. Furthermore, standing on its own, Home Depot's written policy requiring employees to put on their aprons just before clocking in does not necessarily render class members' subject to the company's control as soon as they enter the store. The Plaintiffs' final argument is that Home Depot must compensate employees for this time because otherwise workers could be required to walk 20 uncompensated minutes daily to a time clock in the back of the warehouse. This argument is similarly unavailing. A district court in this district has held that employees who were subject to a security inspection upon leaving their place of work could not receive compensation for the time spent packing up and travel[ing] to the front of the store after clocking out" because the employees were free to engage in personal activities during this time such as shopping, using the bathroom, or calling for transportation and would have to pack up and leave regardless of whether they were subject to search at the exit. This is not to say an employee could never be deemed under the control of an employer while crossing the employer's premises to clock in, simply that additional evidence of control may be necessary. As explained above, the additional indicia of control in this case are subject to dispute. Accordingly, both motions for summary judgment regarding Home Depot's liability to pay for pre-shift time are denied. Third Claim: Waiting Time Penalties Section 203 of the California Labor code provides for penalties where an employer wilfully failed to pay wages at the time an employee is terminated. The California Department of Industrial Relations defines the term willful as used in Section 203 to mean the absence of a good faith dispute. A good faith dispute exists where an employer presents a defense, based in law or fact which, if successful, would preclude any recovery on the part of the employee. By contrast, defenses that are unsupported by any evidence, are unreasonable, or are presented in bad faith do not present a good faith dispute. Home Depot argues persuasively that Plaintiffs cannot recover under Sections 203 because a good faith dispute exists with respect to the compensability of the pre-shift time at issue. There is a material dispute regarding whether members of the Hourly Employee Class were in fact subject to Home Depot's control from the time they entered the store to the time they clocked in. Although Plaintiffs raise the specter of bad faith conduct on Home Depot's part, they point to no evidence of bad faith aside from the parties' conflicting interpretations of Home Depot's policy regarding employees remaining in the store outside of work hours. This is insufficient to support a finding of bad faith. Second Claim: Wage Statement Penalties While both parties agree the good faith defense applies to claims arising under Section 203, they disagree about the applicability of this defense to Section 226. This section provides for penalties where the plaintiff establishes an employer's knowing and intentional failure to provide accurate wage statements. The statute clarifies that the existence of a knowing and intentional failure does not include an isolated and unintentional payroll error due to a clerical or inadvertent mistake and may depend in part on whether the employer has adopted a set of policies, procedures, and practices that fully comply with this section. Accordingly, a good faith defense regarding the amount of wages owed precludes a finding of liability under Section 226 based an employer's failure to include the disputed wages in the wage statement. Such an omission is not a knowing and intentional failure to provide an accurate wage statement. Liability to Lock-In Class The Plaintiffs alone move for partial summary judgment with respect to the Lock-In Class. They specifically seek a finding that Home Depot is liable to the class for employee time spent waiting to be let out of the store after clocking out. Home Depot's security policy requires the doors of the store to be locked to the public after closing, allegedly resulting in employees having to wait to be let out of the store after clocking out. In the Plaintiffs' view, this time is compensable because employees remain under Home Depot's control until they are released from the building. Home Depot responds that disputes of fact exist as to (1) whether members of the Lock-In Class in fact had to wait to be released and (2) whether Home Depot knew, or should have known, employees were waiting without compensation. Home Depot's argument is ultimately the more persuasive. The Plaintiffs argue conflicting testimony regarding whether class members were forced to wait to be let out of the store does not defeat their motion because they are merely seeking a threshold determination of whether Home Depot's policy is unlawful. Here, however, the lawfulness of the policy turns upon the degree to which it resulted in class members being forced to wait without pay. In other words, Plaintiffs' theory of liability rests upon factual findings about the practical effect of Home Depot's lock-in policy rather than upon a facial analysis of the policy. Even if the Plaintiffs could show the Lock-In Class was forced to wait without pay, they fail to show Home Depot knew, or should have known, employees were not being compensated for any wait time. Some employees were able to clock out at the front of the stores immediately before leaving, whereas others submitted time adjustment forms when their wait time was not captured by the timeclock. The Plaintiffs point to testimony that certain class members were not informed they could be paid for this time as evidence that Home Depot should have known this time was not being properly captured. Accordingly, the question whether Home Depot should have known that, despite these alternative time capture methods, employees were not being compensated for their wait time cannot be definitively resolved at this stage. The de minimis exception simply has no bearing on the present analysis. Home Depot's time adjustment process is relevant only to the extent it helps establish whether Home Depot knew or should have known employee wait time was not being properly compensated. As explained above, this is a disputed factual question that must be resolved at trial. Accordingly, the Plaintiffs' motion for summary judgment with respect to the Lock-In Class is denied. A full-text copy of the District Court's July 11, 2019 Order is available at https://tinyurl.com/yx9fvd5g from Leagle.com. John Utne, on behalf of himself, all others similarly situated, Plaintiff, represented by Thomas Alistair Segal -- thomas@setarehlaw.com -- Setareh Law Group, Ashley N. Batiste -- ashley@setarehlaw.com -- Setareh Law Group, Chaim Shaun Setareh -- shaun@setarehlaw.com -- Setareh Law Group & Farrah Grant -- Farrah@setarehlaw.com -- Setareh Law Group. Home Depot U.S.A., Inc., a Delaware corporation, Defendant, represented by Donna Marie Mezias -- dmezias@akingump.com -- Akin Gump Strauss Hauer & Feld LLP, Ashley J. Keapproth, Akin Gump Strauss Hauer Feld LLP, pro hac vice, Nathan J. Oleson -- noleson@akingump.com -- Akin Gump Strauss Hauer and Feld LLP, pro hac vice, Robert G. Lian, Jr. -- blian@akingump.com -- Akin Gump Strauss Hauer & Feld LLP, pro hac vice & Liz Kathryn Bertko -- lbertko@akingump.com -- Akin Gump Strauss Hauer and Feld LLP. HONDA: Faces Class Action Over Defective Infotainment Systems ------------------------------------------------------------- Honda was hit with an expanded, amended class-action lawsuit detailing a severe widespread defect affecting the infotainment systems in 2018-2019 Honda Odyssey and 2019 Honda Pilot vehicles, according to Hagens Berman. The suit states that the infotainment system -- an integrated in-vehicle communication, navigation and entertainment system -- behaves erratically, malfunctioning, freezing, and creating a safety hazard and distraction. The malfunctions have occurred almost immediately after plaintiffs purchased affected vehicles. The defect can cause safety-related systems -- including backup camera functions -- to fail, and can cause the entire center console to go black or blue while the vehicle is in motion. Navigation and other dashboard features are also reportedly affected, shutting down completely while in use. Honda agents, dealers and other representatives continue to fail to disclose the defect. If you purchased or leased a fifth generation, 2018-2019 Honda Odyssey or 2019 Honda Pilot, find out more about the lawsuit and your rights. The new filing on June 10, 2019 in the U.S. District Court for the Central District of California names vehicle owners from 15 states, including Colorado, Georgia, Illinois, Kansas, Kentucky, Maryland, Massachusetts, Missouri, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Virginia and Washington. "Many of our plaintiffs have made repeated visits to dealerships to have extensive work done on their cars, only to be told there's nothing else to be done, when the defect inevitably persists," said Steve Berman, managing partner of Hagens Berman and attorney representing Honda owners in the class action. "Others have been told for months that an update or fix is forthcoming, to no avail." "We think Honda owners deserve more than lip service," Berman added. Since Hagens Berman filed its lawsuit, one owner sent video footage of the defect, showing the dashboard cutting out while he was operating the vehicle. Attorneys say Honda still has not acknowledged the defect's severity or scope. The lawsuit states, "Honda has not found a solution to the infotainment system defect. Instead, Honda simply replaces defective parts with equally defective parts, thereby leaving consumers caught in a cycle of use, malfunction, and replacement. Honda has acknowledged in communications to its dealer network that a defect in the infotainment systems exists and that Honda does not yet have a fix." According to the lawsuit, Honda admitted to screen freezing and other software malfunctions in a 2019 Tech Line Summary Article, which acknowledges one manifestation of the defect and concedes there is no known fix. The article states that an error message appears on the infotainment screen, and "[a]t the same time, the overhead screen freezes, but the audio keeps playing. So far, we know it's software related, so don't replace any components . . ." Reports to NHTSA call the affected model "obviously flawed," and cite instances of the entire dash turning off while driving, including the speedometer. "As soon as I drove off the lot, the car gave me an error," another report to NHTSA reads. The lawsuit against Honda seeks both monetary reimbursement for those who purchased or leased an affected Honda Odyssey or Pilot, and also seeks action from the court barring Honda from continuing to sell vehicles with the defective infotainment system. Find out more about the class-action lawsuit against Honda at https://is.gd/HBqXX3 About Hagens Berman Hagens Berman Sobol Shapiro LLP -- http://www.hbsslaw.com-- is a consumer-rights class-action law firm with nine offices across the country. The firm's tenacious drive for plaintiffs' rights has earned it numerous national accolades, awards and titles of "Most Feared Plaintiff's Firm," and MVPs and Trailblazers of class-action law. [GN] HSBC BANK: HSBC USA Dismissed from Vasquez WCM777 Ponzi Scheme Suit ------------------------------------------------------------------- In the case, RIGOBERTO VASQUEZ and EVA GARCIA on behalf of themselves and all others similarly situated, Plaintiffs, v. HONG KONG AND SHANGHAI BANKING CORPORATION LTD., a foreign company, HSBC BANK USA, N.A., a national banking association, and DOES 1 THROUGH 100, Defendants, Case No. 18 Civ. 1876 (PAE) (S.D. N.Y.), Judge Paul A. Engelmayer of the U.S. District Court for the Southern District of New York granted HSBC USA, N.A.'s motion to dismiss the claims against it. Vasquez and Garcia bring the putative class action against Hong Kong and Shanghai Banking Corporation Ltd. ("HSBC Hong Kong"), HSBC Bank USA, and Does 1 to 100. The Plaintiffs allege that the HSBC Defendants and unnamed others facilitated the international bank transfers required to perpetrate a Ponzi scheme which violated the federal racketeering statute 18 U.S.C. Section 1961 et seq. ("RICO"). They also bring, under state law, three common law claims for aiding and abetting, with the underlying conduct of fraud, breach of fiduciary duty, and conversion. The Plaintiffs allege that the HSBC Defendants facilitated the perpetration of a Ponzi scheme they call "WCM777." The perpetrators of WCM777 maintained accounts with HSBC Hong Kong and advised prospective investors to wire money to these accounts. The bulk of these transfers went through a correspondent bank account held by HSBC Hong Kong at HSBC USA in New York. The Plaintiffs allege that HSBC USA became aware that WCM777 was a Ponzi scheme at least by Sept. 30, 2013, and shared this discovery with HSBC Hong Kong. However, the banks continued transferring more than $30 million worth of transactions afterwards until a federal court shut down the scheme in March 27, 2014. Vasquez and Garcia bring the action on behalf of a purported class of all individuals or entities who invested and lost money with any of the WCM777 entities by transferring or having their money transferred to one of the WCM777 accounts at HSBC Hong Kong through the HSBC USA correspondent account from the Period June 1, 2013 through May 31, 2014. Vasquez and Garcia each reside in California. Vasquez transferred $100,000 to the WCM Ltd. account at HSBC Hong Kong on Oct. 21, 2013 and lost all this money. Garcia transferred $2,000 to WCM777 in HSBC Hong Kong through HSBC USA on Oct. 11, 2013, and again on Oct. 15, 2013. She lost this $4,000. HSBC Hong Kong now moves to dismiss for lack of personal jurisdiction. In addition, the HSBC Defendants move collectively and individually to dismiss all claims on a variety of grounds under Federal Rule of Civil Procedure 12(b)(6) and to strike the Plaintiffs' class allegations. Judge Engelmayer addresses HSBC Hong Kong's motion to dismiss for lack of personal jurisdiction before turning to the Defendants' motions to dismiss for failure to state a claim. At the threshold, however, the Judge considers the Plaintiffs' motion asking the Court to take judicial notice, on these motions, of certain documents. The Plaintiffs ask the Court to take judicial notice of six documents. The HSBC Defendants object to only two. The four unobjected-to documents are orders and public filings from the California action. The Judge accordingly takes judicial notice of them. As to the remaining two documents, the first is a Consent Order filed in a separate matter, In re HSBC Bank USA, N.A., McLean, Virginia, U.S. Dep't of Treasury, Office of the Comptroller of the Currency, No. AA-EC-10-98 (Oct. 6, 2010). As there's no present occasion for the Court to take judicial notice of the document, the Judge Court accordingly denies the request for judicial notice as unripe. The second document is a Deferred Prosecution Agreement filed in United States v. HSBC Bank USA, N.A., No. 12 Cr. 763, Dkt. 3-2 (E.D.N.Y. Dec. 10, 2012). The Judge grants the Plaintiffs' request to take judicial notice of the DPA, but solely for the fact of its filing, not the truth of its contents. He does not find the DPA relevant to HSBC Hong Kong's personal jurisdiction motion, but does briefly examine it in addressing HSBC USA's Rule 12(b)(6) motion. As to HSBC Hong Kong's motion to dismiss, the Judge concludes that jurisdictional discovery is required to enable the Court reliably to determine whether there is personal jurisdiction under the first prong of Sectio 302(a)(1), insofar as the requirement there that the Defendant have transacted business within the state has been held to require purposeful availment by the Defendant. He accordingly directs that the parties promptly undertake jurisdictional discovery aimed at the issue of purposeful availment. He expects that such discovery can be completed within two months of the decision and that counsel will then expeditiously brief anew the issue of personal jurisdiction. In light of the potential impact of this discovery on ensuing questions in the personal jurisdiction inquiry (e.g., whether the second prong of Se ctio302(a)(1) is met and whether constitutional due process is satisfied), the Judge invites the counsel, on rebriefing, to address those questions as well. Because the Court has not yet determined that it has personal jurisdiction over HSBC Hong Kong, the Judge considers only HSBC USA's motion to dismiss under Rule 12(b)(6). HSBC USA moves to dismiss all claims in the FAC against it. It argues the FAC fails to state claims under RICO or state law; that its state law claims are displaced by the Uniform Commercial Code ("UCC"); and that all claims against it are time-barred. Judge Engelmayer holds that the FAC fails to state either a RICO claim or a claim under state law. He therefore does not address HSBC USA's arguments based on timeliness or the UCC. He finds that (i) the FAC does not plead sufficient facts to allege the RICO element of "participation," and grants HSBC USA's motion to dismiss the FAC's RICO claim; (ii) the pled facts sufficient to allege that HSBC USA had, under the conscious avoidance doctrine, actual knowledge of WCM777's fraudulent Ponzi scheme; and (iii) the FAC fails -- by a good margin -- to allege that HSBC USA substantially assisted WCM777's fraudulent activity. Accordingly, he dismisses the FAC's claims against HSBC USA for aiding and abetting breach of fiduciary duty, fraud, and conversion. For the foregoing reasons, Judge Engelmayer, as to HSBC USA, granted the motion to dismiss the claims against it. The dismissal is with prejudice. As to HSBC Hong Kong, however, he granted plaintiffs' request for jurisdictional discovery as to the issue of personal jurisdiction, so as to enable the Court to resolve HSBC Hong Kong's motion to dismiss under Rule 12(b)(2). He directed HSBC Hong Kong and plaintiffs to file, by June 10, 2019, a joint letter proposing a discovery schedule to be completed within approximately two months of today. The Judge denied, without prejudice, HSBC Hong Kong's motions to dismiss and to strike class allegations, without prejudice to the right of HSBC Hong Kong to renew such motions if the motion to dismiss for lack of personal jurisdiction is denied. The Clerk of Court is respectfully requested to terminate the motions pending at Dkts. 48, 54, 56, and 58, and to terminate HSBC USA as a Defendant in the case. A full-text copy of the Court's May 29, 2019 Opinion and Order is available at https://is.gd/NRMZxN from Leagle.com. Rigoberto Vasquez, on behalf of themselves and all others similarly situated & Eva Garcia, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Julio Joaquin Ramos -- ramoslawgroup@yahoo.com -- Law Offices of Julio J. Ramos. Hong Kong and Shanghai Banking Corporation, Ltd., a foreign company, Defendant, represented by Craig Andrew Convissar -- craig.convissar@kattenlaw.com -- Katten Muchin Rosenman, LLP, Gregory S. Korman -- greg.korman@kattenlaw.com -- Katten Muchin Rosenman LLP & Stuart M. Richter -- stuart.richter@kattenlaw.com -- Katten Muchin Rosenman LLP. HYUNDAI: Proskauer Rose Attorneys Discuss 9th Cir. Ruling --------------------------------------------------------- Steven D Hurd, Esq. -- shurd@proskauer.com -- and Andrew A. Smith, Esq. -- asmith@proskauer.com -- of Proskauer Rose LLP, in an article for The National Law Review, report that the Ninth Circuit went a long way towards answering that question in an en banc decision. The key takeaway is that a district court certifying a class for settlement purposes does not have to conduct the same "rigorous analysis" of manageability considerations required when certifying a class for litigation. The decision has major implications, not only for class action settlements but also for cases where class certification is contested. The In re Hyundai and Kia Fuel Economy Litigation decision was the latest turn in a lengthy settlement approval process. The two car makers had settled in early 2013 with a nationwide class of car buyers who claimed they were misled by inflated representations about the miles per gallon they could expect from their vehicles. The opinion describes in great detail the district court's exhaustive analysis of the settlement before approving it nearly three years later. Last year, a divided Ninth Circuit panel reversed, holding that the district court, at the urging of objectors to the settlement, should have analyzed differences among state consumer protection laws before certifying a nationwide settlement class based on California law. The full Ninth Circuit disagreed. Among the principles it articulated are: A district court certifying a litigation class "must be concerned with manageability at trial," but "manageability is not a concern in certifying a settlement class where, by definition, there will be no trial." As a result, "[a] class that is certifiable for settlement may not be certifiable for litigation if the settlement obviates the need to litigate individualized issues that would make a trial unmanageable." Rather than strict "predominance" (whether questions common to class members' claims are a significant aspect of the case that can be resolved at the same time), a district court asked to approve a class settlement should focus on "unity" (whether class members suffered the same harm in the same way). Applying those principles, the court endorsed the district court's certification of a nationwide class of car buyers. The supposed "variations" in state law were not an obstacle to certification, as the earlier panel had concluded. The settlement objectors, the court noted, had not demonstrated how California's choice-of-law test (applicable because California was the forum state) required application of another state's law. Absent that showing, and absent any constitutional problems created by applying California law to all class members' claims, the district court properly certified the class for settlement. Other courts, including the Supreme Court in Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), have recognized that certifying a class for settlement is different and potentially less onerous than certifying it for litigation. The real innovation from the Ninth Circuit's decision is treating individualized issues that could defeat predominance as factors that might create "intractable management problems" at trial. Amchem authorizes courts to ignore those "when settlement-only certification is requested." The decision clears the way for district courts, at least in the Ninth Circuit, to take a practical approach to class settlements. If the parties litigate class certification, individualized issues may very well prevent the district court from certifying a class because of the "rigorous analysis" required at that stage. But if the parties opt for settlement, the same issues may be no obstacle at all—precisely because they won't be litigated. [GN] IDEAL COLLECTION: Daddieco Files Class Suit under FDCPA ------------------------------------------------------- A class action lawsuit has been filed against Ideal Collection Servoices, Inc. The case is styled as Yvonne-Wright Daddieco, aslso known as: Yvonne Wright individually and o/b/o all others similarly situated, Plaintiff v. Ideal Collection Servoices, Inc. and John Does 1-25, Defendants, Case No. 8:19-cv-01711-JSM-SPF (M.D. Fla., July 16, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Act. Ideal Collection Servoices, Inc. is a debt collection agency in the Greater Northdale, Florida.[BN] The Plaintiff is represented by: Justin Zeig, Esq. Zeig Law Firm, LLC 3475 Sheridan Street, Suite 310 Hollywood, FL 33024 Tel: (754) 217-3084 Fax: (754) 217-3084 Email: justin@zeiglawfirm.com IGOURMET LLC: Conner Asserts Breach of Disabilities Act ------------------------------------------------------- iGourmet LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Mary Conner, individually and as the representative of a class of similarly situated persons, Plaintiff v. iGourmet LLC and Innovative Food Holdings, Inc., Defendants, Case No. 1:19-cv-04118 (E.D. N.Y., July 16, 2019). igourmet, LLC, doing business as igourmet.com LLC, retails gourmet foods and gifts online. igourmet, LLC was founded in 1997 and is based in West Pittston, Pennsylvania.[BN] The Plaintiff is represented by: Dan Shaked, Esq. Shaked Law Group, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Tel: (917) 373-9128 Email: shakedlawgroup@gmail.com JANI-KING OF CALIFORNIA: Juarez Seeks to Certify Franchisee Class ----------------------------------------------------------------- The Plaintiffs in the lawsuit captioned ALEJANDRO JUAREZ, et al. v. JANI-KING OF CALIFORNIA, INC., a Texas Corporation, et al., Case No. 4:09-cv-03495-YGR (N.D. Cal.), seek to certify this class: All persons who have purchased Jani-King franchises and have performed janitorial and cleaning work for Jani-King within the State of California at any time from June 22, 2006 (three years preceding the filing of the original complaint in this action) through the date class notice is issued. The Defendants have misclassified their cleaning workers as independent contractors rather than employees and, as a result, have violated various provisions of California Wage Order 5-2001 and the California Labor Code, the Plaintiffs allege. The Plaintiffs add that the Defendants have also failed to pay class members overtime for hours worked beyond eight per day or 40 per week in violation of the California Labor Code. The Plaintiffs also ask the Court to appoint them as Class representatives, and to appoint their counsel as Class counsel. The Court will commence a hearing on October 22, 2019, at 2:00 p.m., to consider the Motion.[CC] The Plaintiffs are represented by: Monique Olivier, Esq. Christian Schreiber, Esq. Miguel Zavala, Esq. OLIVIER SCHREIBER & CHAO LLP 201 Filbert Street, Suite 201 San Francisco, CA 94133 Telephone: (415) 484-0980 E-mail: monique@osclegal.com christian@osclegal.com miguel@osclegal.com - and - Shannon Liss-Riordan, Esq. Adelaide Pagano, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 Facsimile: (617) 994-5801 E-mail: sliss@llrlaw.com apagano@llrlaw.com - and - James C. Sturdevant, Esq. THE STURDEVANT LAW FIRM 4040 Civic Center Drive, Suite 200 San Rafael, CA 94903 Telephone: (415) 477-2410 Facsimile: (415) 492-2810 E-mail: jsturdevant@sturdevantlaw.com JENNINGS GATE: Revised Settlement Agreement Filed in Bueso Suit --------------------------------------------------------------- The Plaintiffs' counsel filed with the Court certain documents as instructed during a conference call in the lawsuit titled Bueso, et al. v. Jennings Gate Rest, Inc., et al., Case No. 18-CV-0380 (E.D.N.Y.). In compliance with Chief Magistrate Judge Roanne L. Mann's instruction during the conference call held on July 1, 2019, the Plaintiff's counsel submits these documents: 1.) Proposed Notice of Class Action settlement with the corrections requested; 2.) the Settlement Agreement with the revisions sought; and 3.) the Proposed Order. The temporal scope of the class is from January 19, 2012, through December 26, 2018, the date Plaintiffs provided a list with a damages calculation to the Defendants. In order to avoid confusion, the Plaintiffs will refile all the documents associated with the motion for preliminary approval, including the memorandum of law seeking preliminary approval of a class action settlement.[CC] The Plaintiffs are represented by: Delvis Melendez, Esq. THE Law OFFICE OF DELVIS MELENDEZ 90 Bradley Street Brentwood, NY 11717 Telephone: (631) 434-1443 The Defendants are represented by: C.C. Adam Guttell, Esq. JACKSON LEWIS P.C. 58 South Service Rd. Melville, NY 11747 Telephone: (631) 247-4675 E-mail: Adam.Guttell@jacksonlewis.com JUUL LABS: Must Face Class Action Over Addictive E-Cigarettes ------------------------------------------------------------- Helen Christophi, writing for Courthouse News Service, reported that a federal judge said on June 12 he would advance a class action accusing e-cigarette maker Juul Labs of building a multimillion-dollar electronic-cigarette empire by secretly designing a highly addictive product and hooking teens with "cool" ads and candy-like flavors. In a hearing in San Francisco, U.S. District Judge William Orrick III said the plaintiffs had plausibly alleged that Juul's advertising campaign had helped the company capture the $3 billion e-cigarette market in the United States in a stunning two years, beating out established competitors like cigarette behemoth Philip Morris. Orrick tentatively blessed almost all of the claims brought by a nationwide class of adult Juul users and a subclass of users who were minors when they purchased Juul's products. He said the case will proceed regardless of whether he later reverses on individual claims. "I don't know what the evidence is going to show," Orrick said. "But the case will proceed." Twelve adult and minor Juul users sued the San Francisco-based company in April 2018 for concealing the addictiveness of its products. According to the complaint, the products contain triple the legal limit of nicotine allowed in the European Union. One study found Juulpods -- prefilled cartridges of nicotine solution -- contained 6.2% nicotine salts instead of the advertised 5%, and the plaintiffs claim Juul's devices deliver this outsize amount of nicotine to the bloodstream faster than traditional cigarettes. They say the "intense dosage" of nicotine increased their nicotine addictions and their Juulpod consumption and made quitting harder, and that Juul chose to not warn them of these risks. According to an amended complaint, Juul targeted both teens and adults using a "two-prong" marketing approach. The first prong targeted teens with candy-flavored Juulpods and "multimillion dollar ad campaigns and social media blitzes using alluring imagery," such as attractive young models "going out for a night on the town." The campaign resulted in more than 700% growth in 2017 alone, the classes allege. Juul meanwhile targeted adults trying to quit smoking and those wary of the health risks associated with traditional cigarettes by claiming its products contained less nicotine and were less addictive than cigarettes, the plaintiffs claim. On June 12, Juul's attorney Austin Schwing, of Gibson, Dunn & Crutcher LLP, sought to counter those claims by arguing restrictions on commercial speech must be narrowly tailored to achieve the desired objective. He said outlawing speech about lawful products that appeal to adults because it may also appeal to teens is not narrowly tailored to preventing teen usage. And he invoked the separation of powers doctrine to argue judicial review was akin to legislating a ban on Juul products because it is the U.S. Food and Drug Administration that Congress had tasked with regulating e-cigarettes, not the judicial branch. Class counsel and Gutride Safier LLP attorney Matt McCrary countered Juul had provided no authority for abstaining from judicial review. "I'm not thinking of abstaining," Orrick replied. Orrick did not ask questions of either party during their arguments, indicating his final written order likely won't deviate from his tentative ruling. He tentatively granted Juul's motion to dismiss claims for negligent marketing, negligence per se and breach of express warranty. But he said he will probably advance the remaining claims for false advertising, fraud, negligent misrepresentation, deceptive trade practices, design and manufacturing defect and failure to warn, adding none of these are pre-empted by federal laws. He said the minors' sub-class had plausibly alleged Juul's advertising campaign had "targeted them." He kept alive named plaintiff Bradley Colgate's failure-to-warn claims and dismissed them for three other plaintiffs with leave to amend. And he said he would probably also deny Juul's motion to send five of the named plaintiffs to arbitration. Orrick took the arguments under submission and did not indicate when he would rule. [GN] KNAUF GIPS: Bid to Certify Builder Class Denied ----------------------------------------------- A Louisiana court has denied a request for class certification in the case captioned as Mitchell Company Inc., the Plaintiff, v. Knauf Gips KG, et al., the Defendants, Case No. 2:09-md-02047-EEF-JCW (E.D. La.). The case is part of the class action lawsuit RE: CHINESE-MANUFACTURED DRYWALL PRODUCTS LIABILITY LITIGATION. The Court entered an order on July 8, 2019, denying Mitchell Company's motion for certification of a builder class consisting of: "all persons and entities in the States of Alabama, Mississippi, Louisiana, Georgia, Texas, and Florida that used drywall manufactured by Taishan Gypsum Co., Ltd., for the construction, repair, or remodeling of any improvement to real property and who incurred any expenses associated with (1) repair or replacement of all or part of the defective drywall, and/or (2) repair or replacement of other property damaged by the defective drywall, and/or (3) attorneys' fees and costs in defense of claims by affected homeowners, and/or (4) other expenses that were or incurred as part of the remediation of the defective drywall, including, without limitation, the cost of investigation and expert analysis of the defect, and cost of relocating customers displaced by the presence of defective drywall." Excluded from the proposed Class are any owners, landlords, or residents of real properties located in the United States containing defective Chinese drywall manufactured, sold, distributed, supplied, marketed, inspected, imported, or delivered by Taishan Gypsum Co. Ltd.; Defendant Taishan, its legal representatives, officers, directors, assigns, and successors, or any entity in which the Defendant has a controlling interest; the judge to whom this action is assigned and members of the judge's immediate family; claims for personal injury, wrongful death, and/or emotional distress; and all persons or entities who properly execute and timely file a request for exclusion from the class.[CC] KOHLBERG KRAVIS: Pruchnicki Suit Removed to District of Nevada -------------------------------------------------------------- The putative class action lawsuit titled PEGGY PRUCHNICKI, and all similarly situated individuals v. KOHLBERG KRAVIS ROBERTS, d/b/a ENVISION HEALTHCARE, Case No. A-19-795141-C, was removed on July 9, 2019, from the Eighth Judicial District Court, Clark County, Nevada, to the U.S. District Court for the District of Nevada. The District Court Clerk assigned Case No. 2:19-cv-01193-JCM-BNW to the proceeding. Kohlberg Kravis Roberts, doing business as Envision Healthcare Services, is a Delaware corporation with its principal place of business in New York. KKR, through Envision, does business in the state of Nevada. Envision in turn operates in part through its affiliate companies, including but not limited to EmCare, Inc. (a Delaware corporation doing business in the State of Nevada) and Sheridan Healthcorp, Inc. ("Sheridan") (a Florida corporation, which on information and belief does business in the State of Nevada). According to the complaint, the Plaintiff and all putative Class members formerly supplied their personal and/or financial data ("Personal Data") to Envision in connection with transactions with Envision. In or about July 2018, Envision's systems were breached by an unidentified third party ("Data Breach"). The third party accessed several Envision e-mail accounts, from which it procured Plaintiff and Class members' personal data, which included name, date of birth, social security number, driver's license number, and unidentified "financial information."[BN] The Plaintiff is represented by: Matthew I. Knepper, Esq. Miles N. Clark, Esq. KNEPPER & CLARK LLC 10040 W. Cheyenne Ave., Suite 170-109 Las Vegas, NV 89129 Telephone: (702) 825-6060 Facsimile: (702) 447-8048 E-mail: matthew.knepper@knepperclark.com miles.clark@knepperclark.com - and - David H. Krieger, Esq. HAINES & KRIEGER, LLC 8985 S. Eastern Ave., Suite 350 Henderson, NV 89123 Telephone: (702) 880-5554 Facsimile: (702) 385-5518 E-mail: dkrieger@hainesandkrieger.com LABORATORY CORPORATION: Mohamad Files Class Suit in North Carolina ------------------------------------------------------------------ A class action lawsuit has been filed against Laboratory Corporation of America Holdings. The case is styled as Mohamad Mohamad, individually and on behalf of all other persons similarly situated, Plaintiff v. Laboratory Corporation of America Holdings, Defendant, Case No. 1:19-cv-00702 (M.D. N.C., July 16, 2019). The nature of suit is stated as Contract - Other. Laboratory Corporation of America Holdings, more commonly known as LabCorp, is an American S&P 500 company headquartered in Burlington, North Carolina. It operates one of the largest clinical laboratory networks in the world, with a United States network of 36 primary laboratories.[BN] The Plaintiff is represented by: William Marc Graham, Esq. Wallace and Graham, P.A. 525 N. Main St. Salisbury, NC 28144 Tel: (704) 633-5244 Fax: (704) 633-9434 Email: bgraham@wallacegraham.com LG ELECTRONICS: Stangl et al. Sue over Defective Compressors ------------------------------------------------------------ EDWARD STANGL, ANN MARIE STANGL, AND MELISSA CUPP, individually and on behalf of all others similarly situated, the Plaintiffs, vs. LG ELECTRONICS U.S.A., INC., the Defendant, Case No. 2:19-cv-15185 (D.N.J., July 11, 2019), alleges that LG concealed a known defect from its customers in the United States who purchased refrigerators manufactured by LG equipped with linear compressors on or after January 30, 2014. The action arises from LG's failure, despite its longstanding knowledge, to disclose to Plaintiffs and similarly situated customers that the LG Refrigerators have defective compressors that fail to function in a reliable manner as expected. According to the complaint, LG knew of this critical defect at the time of sale of the LG Refrigerators, but sold them anyway, without disclosing the defect to Plaintiffs and Class members. Moreover, LG has routinely failed to repair the LG Refrigerators without charge when customers report failures arising from the Compressor Defect. Over four years ago, LG settled a class action in which the plaintiffs alleged that LG's refrigerators were defective. See Order Granting Final Approval of Settlement and Request for Entry of Judgment, Clark v. LG Elecs. USA, Inc., No. 3:13-CV-485-JM (JMA). The claims released by the judgment in that case, however, are limited to those involving refrigerators purchased before January 29, 2014, which marks the beginning of the class period in this case, the lawsuit says. LG Electronics of USA manufactures and distributes consumer electronic products. The Company offers light emission diode televisions, mobile phones, monitors, refrigerators, washing machines, dryers, air conditioners, and projectors.[BN] Counsel for the Plaintiffs and the Class are: Shanon J. Carson, Esq. Lawrence Deutsch, Esq. Jacob M. Polakoff, Esq. Amey J. Park, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 E-mail: scarson@bm.net ldeutsch@bm.net jpolakoff@bm.net apark@bm.net - and - E. Michelle Drake, Esq. BERGER MONTAGUE PC 43 SE Main Street, Suite 505 Minneapolis, MN 55414 Telephone: (612) 594-5999 Facsimile: (612) 584-4470 E-mail: emdrake@bm.net LLR INC: Court Narrows Claims in M. Hill's MCPA Suit ---------------------------------------------------- The United States District Court for the District of Montana, Great Falls Division, issued an Order granting in part and denying in part Defendant's Motion to Dismiss in the case captioned MELISSA HILL, individually and on behalf of all others similarly situated, Plaintiff, v. LLR, INC. d/b/a LuLaRoe, and LULAROE, INC., Defendants. No. CV-18-120-GF-BMM. (D. Mont.). LLR contends (1) that the Court should enforce the MCPA's prohibition on class action lawsuits (2) that Hill does not possess Article III standing (3) that Hill also does not possess standing under the MCPA and (4) that Judge Johnston should have specified in his Findings and Recommendations that LLR's motion to strike be denied without prejudice. MCPA's Prohibition on Class Action Lawsuits LLR argued in its motion to dismiss that Hill's Montana Consumer Protection Act (MCPA), claim should be dismissed as the MCPA expressly prohibits class actions. LLR recognized that this Court had concluded previously that Federal Rule of Civil Procedure 23 preempted the MCPA's class action ban in Wittman v. CB1, Inc., 2016 WL 3093427. LLR nonetheless requested that this Court abandon its conclusion in Wittman insofar as it applies to the instant action in light of both the different procedural posture of the instant matter and the Ninth Circuit's recent decision in Makaeff v. Trump Univ., LLC, 736 F.3d 1180 (9th Cir. 2013). LLR's objection as to Judge Lynch's Findings and Recommendations on whether Rule 23 preempts the MCPA's class action ban largely amounts to a rehashing of the same arguments presented to Judge Lynch necessitating clear error review. De Novo Review of Shady Grove Conflict LLR argues that the Court should apply Justice Steven's concurring opinion in Shady Grove, 559 U.S. at 396, to determine whether Rule 23 violates the Rules Enabling Act in a class action suit based on a claim under the MCPA. Shady Grove Opinions The Supreme Court in Shady Grove faced the question of whether a New York state law that prohibits class actions in suits seeking penalties or statutory minimum damages precludes a federal district court sitting in diversity from entertaining a class action under Federal Rule of Civil Procedure 23. The Supreme Court answered no. Supreme Court's decision in Shady Grove, however, consisted of a four-justice plurality, a lone-justice concurrence, and a four-justice dissent. The Court briefly will address, in turn, each of these opinions. Four-Justice Plurality Opinion The four-justice plurality in Shady Grove employed a two-prong analysis in determining whether the New York statute or Rule 23 governed whether the plaintiffs could litigate a class action lawsuit in a federal district court sitting in diversity. First, the Supreme Court determined whether Rule 23 answers the question in dispute. The Supreme Court concluded that Rule 23 provides a one-size-fits-all formula for deciding the class-action question. The New York statute also answered the question in dispute. The New York statute, because of the relief it seeks, however, fails to apply in diversity suits unless Rule 23 is ultra vires. Justice Steven's Concurrence Justice Steven's agreed with the four-justice plurality, that Rule 23, rather than the New York statute, applied in the case at bar. Justice Stevens equally agreed with the four-justice dissent, however, that there exist "some state procedural rules that federal courts must apply in diversity cases because they function as a part of the State's definition of substantive rights and remedies. Justice Stevens agreed that the two-step framework, as used by the four-justice plurality, proved applicable to the instant issue in dispute. Justice Stevens nonetheless disagreed on what application of prong two entails. Upon satisfaction of prong one, the court must decide whether application of the federal rule represents a valid exercise of the rulemaking authority bestowed on this Court by the Rules Enabling Act. As noted by the four-justice plurality, the Rules Enabling Act mandates that federal rules not abridge, enlarge or modify any substantive right. Justice Ginsburg's Dissent Justice Ginsburg, along with Justice Kennedy, Justice Breyer, and Justice Alito, dissented from the plurality's opinion. Justice Ginsburg explains that a federal rule applies in diversity suits if the rule controls an issue and directly conflicts with state law and remains consonant with the Rules Enabling Act. The Rules of Decision Act controls where there exists no federal rule or statute that governs the issue in dispute. Justice Ginsburg reasons that the legislative history of the New Statute at issue supports that the statute fails to collide with Rule 23. Rule 23 describes a method of enforcing a claim for relief, while Section 901(b) defines the dimensions of the claim itself. The inquiry then becomes whether application of the state rule would have so important an effect upon the fortunes of one or both of the litigants that failure to apply it would be likely to cause a plaintiff to choose the federal court. The dissent concludes that the New York statute's "limitation on the recovery of statutory damages applies in this case. MCPA and Rule 23 Conflict Justice Stevens's concurrence similarly fails to constitute logical subset of the dissenting opinion. Justice Stevens agreed with Justice Ginsburg's reasoning that there exists state procedural rules that function as part of a state's defined substantive rights and remedies that would require a federal court sitting in diversity to apply the state law in lieu of the federal procedural law. Justice Stevens's agreement with the plurality, and the differing prong one inquiry than the inquiry proposed by the dissent, logically lead the Court to conclude that the dissent does not subsume Justice Stevens's concurrence. The Court, unless, and until, the Ninth Circuit address the conflict between MCPA and Rule 23, will continue to apply the portion of Shady Grove to which a majority of justices agreed. This approach translates to the Court applying Rule 23, instead of the MCPA, to determine whether a MCPA claim may be brought as a class action. Article III Standing Judge Lynch determined that Hill's alleged loss of interest, which may have been as little as $7.29, is a cognizable injury in fact for purposes of standing. LLR contends that Judge Lynch's determination runs contrary to the clear majority of cases that conclude that a consumer, whose money has been refunded fully before an action commences does not possess Article III standing by virtue of claimed lost interest on the refunded money. LLR's objection largely amounts to a rehashing of the argument it made before Judge Lynch in LLR's Motion to Dismiss. The Court will review the pertinent portion of Judge Lynch's Findings and Recommendations for clear error. The Court finds no error. Standing Under the MCPA Judge Lynch reasoned that assuming LLR retained the $291.70 in sales tax for three months and the applicable interest rate is 10%, Hill has lost only $7.29 in unpaid interest. Judge Lynch determined that Hill alleged sufficiently that she suffered an ascertainable loss for purposes of establishing standing under the MCPA. LLR argues that Judge Lynch's determination proves problematic as Hill has failed to allege that "she actually lost interest during the four-month period LLR took to refund her money in addition to Hill alleging that she possessed a right to that interest as a legal remedy." Absent these allegations, LLR contends that Hill has not alleged an ascertainable loss as Judge Lynch concluded. LLR asserted in its Motion to Dismiss that Hill has failed to allege that she suffered an ascertainable loss sufficient enough to confer her standing under the MCPA. LLR's argument in its objection resembles the argument made in its Motion to Dismiss. The Court will review Judge Lynch's discussion, and conclusion, in the MCPA standing portion of his Findings and Recommendations for clear error. The Court finds no error. Accordingly, LLR's Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Rule 12(b)(1) is granted in part and denied in part. LLR's motion is granted with respect to Hill's claim for injunctive relief. LLR's motion is denied with respect to Hill's claims for violations of the MCPA and conversion and deceit. A full-text copy of the District Court's July 11, 2019 Order is available at https://tinyurl.com/y3c4fywm from Leagle.com. Melissa Hill, individually and on behalf of all others similarly situated, Plaintiff, represented by Domenic A. Cossi, WESTERN JUSTICE ASSOCIATES, 303 W Mendenhall St, Bozeman, MT 59715, Kelly Iverson, Carlson Lynch LLP, 303 W Mendenhall St, Bozeman, MT 59715, pro hac vice, Kevin Tucker, Carlson Lynch LLP, 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222, pro hac vice, Maxwell E. Kirchhoff, WESTERN JUSTICE ASSOCIATES, 303 W Mendenhall St, Bozeman, MT 59715 & R. Bruce Carlson, Carlson Lynch LLP, 303 W Mendenhall St, Bozeman, MT 59715, pro hac vice. LLR, Inc., d/b/a LuLaRoe & LULAROE, LLC, Defendants, represented by Randolph T. Moore -- rmoore@swlaw.com SNELL & WILMER, pro hac vice, Steven T. Graham -- sgraham@swlaw.com -- SNELL & WILMER, pro hac vice, Jeffery J. Oven -- joven@crowleyfleck.com -- CROWLEY FLECK PLLP & Jeffrey M. Roth -- jroth@crowleyfleck.com -- CROWLEY FLECK PLLP. LOGISTICARE SOLUTIONS: Bunton Seeks to Certify Class Under FLSA --------------------------------------------------------------- The Plaintiff in the lawsuit entitled SHANIQUA BUNTON, Individually and on behalf of all others similarly situated v. LOGISTICARE SOLUTIONS, LLC, Case No. 1:19-cv-00372-LY (W.D. Tex.), seeks conditional certification of a collective action consisting of: "All Hourly Call-Center Employees Who Worked For Logisticare Solutions LLC, Anywhere In The United States, At Any Time In The Past Three Years Through The Final Disposition of This Matter." In order to facilitate the purposes of the Fair Labor Standards Act's collective action provisions, the Plaintiff asks that the Court grant this Motion and: (1) conditionally certify this action for purposes of notice and discovery; (2) order that judicially-approved notice be sent to all Putative Class Members; (3) approve the form and content of the Plaintiff's proposed judicial notice and reminder notice; (4) order Logisticare to produce to the Plaintiff's counsel the contact information (including the names, address, telephone number and e-mail address) for each Putative Class Member in a usable electronic format; (5) authorize a 60-day notice period for Putative Class Members to join the case; and (6) authorize notice to be sent via First Class Mail, e-mail, and text-message to the Putative Class Members.[CC] The Plaintiff is represented by: Clif Alexander, Esq. Lauren E. Braddy, Esq. Alan Clifton Gordon, Esq. Carter T. Hastings, Esq. ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: clif@a2xlaw.com lauren@a2xlaw.com cgordon@a2xlaw.com carter@a2xlaw.com LOS TRES MAGUEYES: Pontones Seeks to Certify FLSA Class ------------------------------------------------------- In the class action lawsuit styled as LAURA PONTONES, on behalf of herself and all others similarly situated, the Plaintiff, v. LOS TRES MAGUEYES, INC., AYOTLAN, INC., TEQUILA INC., ELIBORIO NAVARRO, IGNACIO NAVARRO, FRANCISCO SANCHEZ, AND JORGE MEZA, the Defendants, Case No. 5:18-cv-00087-H (E.D.N.C.) , the Plaintiff asks the Court to enter an order: 1. granting conditional certification of the action as a representative collective action under the Fair Labor Standards Act and certification of theaction as a class action under Rule 23(a) and (b)(3) pursuant to the North Carolina Wage and Hour Act; 2. approving proposed FLSA/R.23 NCHWA notice of the action and the consent form in both English and Spanish; 3. producing names, last known mailing addresses, alternate addresses, telephone numbers, email addresses, and dates of employment of all putative class members; 4. sending email and/or text message the proposed Notice, along with utilizing regular U.S. Mail, Spanish radio announcements, and posting the Notice at all locations in English and Spanish over a 90 day period, in addition to sending a reminder notice within 45 days, following the initial mailing of notice; and 5. appointing Laura Pontones as class representative, and the Law Offices of Gilda A. Hernandez, PLLC as class counsel. [CC] Attorneys for the Plaintiff are: Gilda Adriana Hernandez, Esq. Charlotte Smith, Esq. THE LAW OFFICES OF GILDA A. HERNANDEZ, PLLC 1020 Southhill Dr., Ste. 130 Cary, NC 27513 Telephone: (919) 741-8693 Facsimile: (919) 869-1853 E-mail: ghernandez@gildahernandezlaw.com csmith@gildahernandezlaw.com Attorney for Defendants is: James E. Hairston, Jr., Esq. HAIRSTON LANE, P.A. 434 Fayetteville St., Suite 2350 Raleigh, NC 27601 Telephone: (919)-838-5295 Facsimile: (888) 510-1160 E-mail: jhairston@hairstonlane.com MANNA PRO: Filing of Bid for Hale Deal Prelim Approval Due Aug. 30 ------------------------------------------------------------------ In the case, ASHLEY HALE individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. MANNA PRO PRODUCTS, LLC; DOES 1-10, INCLUSIVE, Defendant, Case No. 2:18-cv-00209-KJM-DB (E.D. Cal.), Judge Kimberly J. Mueller of the U.S. District Court for the Eastern District of California has issued an order on notice of settlement. Pursuant to the Notice of Settlement, the Judge vacated all pending hearing dates and deadlines. The Parties will have 90 days to finalize the settlement documents and file preliminary approval papers. The Plaintiff's Motion for Preliminary Approval of Class Action Settlement will be filed no later than Aug. 30, 2019. A full-text copy of the Court's June 4, 2019 Order is available at https://is.gd/aD2Q4g from Leagle.com. Ashley Hale, Plaintiff, represented by Adrian R. Bacon -- abacon@toddflaw.com -- Law Offices of Todd M. Friedman, P.C., Kelsey L. Kuberka, Law Offices Of Todd Friedman, Meghan George -- mgeorge@toddflaw.com -- Law Offices of Todd M. Friedman, PC & Todd M. Friedman -- tfriedman@toddflaw.com -- Law Offices of Todd M. Friedman, P.C. Manna Pro Products, LLC, Defendant, represented by Jennifer E. Hoekel -- jhoekel@armstrongteasdale.com -- Armstrong Teasdale, LLP, pro hac vice, Jennifer C. Martin Wang -- jwang@troygould.com -- TroyGould PC, Laura A. Bentele -- lbentele@armstrongteasdale.com -- Armstrong Teasdale LLP, pro hac vice & Russell I. Glazer -- rglazer@troygould.com -- TroyGould PC. MERIT RECOVERY: Court Denies Default Judgment Bid in Muldowney -------------------------------------------------------------- The United States District Court for the Northern District of New York issued a Memorandum Decision and Order denying Plaintiffs' Default Judgment in the case captioned KAREN MULDOWNEY, individually and on behalf of all those similarly situated, Plaintiff, v. MERIT RECOVERY SYSTEMS, INC., Defendant. No. 5:18-cv-01061 (MAD/ATB). (N.D.N.Y). According to the complaint, the Defendant claims that the Plaintiff owes a debt and that she fell behind on payments for the debt related to personal medical services (Debt). In an attempt to collect that Debt, the Defendant sent the Plaintiff a letter, an initial communication as defined by 15 U.S.C. Section 1692a(2). The letter listed an amount of $65.00 due to Crouse Hospital, and included a debtor number. After the Defendant failed to respond to the complaint, the Plaintiff filed a Request for Clerk's Certificate of Entry of Default. Pursuant to Federal Rule of Civil Procedure 55(a), the Clerk entered a default against the Defendant for failure to plead, answer, or otherwise defend. The Plaintiff now seeks default judgment individually and on behalf of all others similarly situated. Standard of Review Generally, Federal Rule of Civil Procedure 55 provides a two-step process that the Court must follow before it may enter a default judgment against a defendant. Under Rule 55(a), when a party fails to plead or otherwise defend the clerk must enter the party's default, upon request of the plaintiff, a default judgment may be entered by the clerk when (1) the plaintiff's claim against the defendant is for a sum certain, (2) the plaintiff has submitted an affidavit of the amount due and (3) the defendant has been defaulted for failure to appear. In the present matter, the Court finds that the Plaintiff complied with the procedural requirements necessary for the Court to grant the motion for default judgment. Specifically, the Plaintiff affirmed that the Defendant is not an infant or an incompetent person and that he is not in military service. Further, the Defendant was properly served in accordance with Rule 4(e)(2)(A) of the Federal Rules of Civil Procedure. Application To permit a court to enter default judgment there must be a sufficient basis in the pleadings for the judgment entered. Plaintiff brings this action pursuant to 15 U.S.C. Section 1692, et seq., contending that Defendant violated 15 U.S.C. Section 1692g(a)(5) by failing to communicate certain information as required by FDCPA. The question of whether a communication complies with the FDCPA is determined from the perspective of the least sophisticated consumer. The FDCPA requires, among other things, that within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. As an initial matter, it is noted that the Plaintiff's submissions are of little assistance. The majority of the argument provided is directed largely to the reasons why the Plaintiff's counsel should be awarded attorneys' fees at an hourly rate higher than those usually awarded in the Northern District. While the Plaintiff has parroted the statutory language and alleged that the letter at issue was confusing and constitutes a violation of the FDCPA, she has not provided any caselaw supporting her position. In the present matter, the Court shares the concerns identified by Judge Hurd, in what is undoubtedly an even weaker case than he was presented with. For instance, in the matter before Judge Hurd, the plaintiff was sent identical letters on March 26 and April 18, 2018, both alleging a debt of $70.00 owed to Crouse Hospital. In his first cause of action, the plaintiff alleges that the letters violated 15 U.S.C. Section 1692g because its collection letter was confusing from the perspective of the least sophisticated consumer. The plaintiff claimed that due to the language in both letters coupled with the lack of date of service and lack of itemization, he was unable to determine what the alleged debts represented. He further alleged that he was unsure whether the letters concerned a single debt or multiple debts, that he was confused and uncertain as to what the letters represented, that he was unable to determine the amount of the debts, he was unable to identify the debts or the actual amount of the debt. In his second cause of action, the plaintiff alleged that the letters violated 15 U.S.C. Section 1692e, in that they were reasonably susceptible to have two or more meanings, one of which is inaccurate. Finally, similar to the present action, the plaintiff in the case before Judge Hurd also brought suit on behalf of himself and all others similarly situated which is ironic considering this action. In the complaint in the present matter, the Plaintiff fails to adequately allege a violation of 15 U.S.C. Section 1692g. In fact, the Plaintiff's complaint fails to set forth a single cause of action. Rather, in the ALLEGATIONS section of the complaint, the Plaintiff simply alleges that the following line from the letter violates section 1692g(a)(5): "We will also provide you with the name and address of the original creditor if different from the current creditor." The Plaintiff provides no explanation as to why this statement would confuse the least sophisticated consumer. Attorneys' Fees What the Court finds troubling is in counsel's time records. For example, in both cases, counsel indicates that they spent 1.5 hours on July 23, 2018, performing the following task: Received new client contact regarding an FDCPA matter; met with client and discussed law and possibility of them having a case.Then, in both cases, albeit on separate listed dates, counsel indicates that it reviewed the letter from the debt collector, researched in Westlaw/Pacer for prior decisions against defendant; reviewed all recent and relevant decisions on point; reviewed internally for other client with similar letters in our system; drafted complaint. Counsel indicates that these tasks, which were performed in Judge Hurd's case on August 23, 2018, and in the present matter on September 4, 2018, took exactly 4.5 hours in each case. These cases involved the same parties and identically worded letters from the Defendant. As such, the Court struggles to understand how counsel could possibly need to repeat the exact same tasks, for the exact same amount of time. Assuming that the Plaintiff is capable of showing cause why this action should not be dismissed, counsel is now on notice that the Court, in its discretion, will likely decline to award attorneys' fees or award only nominal fees representing the time it took to change the name in the caption. Undoubtedly, when counsel met with his clients, it would have been made immediately clear that these cases should have been filed as a single case, thereby substantially reducing costs and fees. Although the Second Circuit has generally viewed the FDCPA's attorneys' fees provision as mandatory, Plaintiff's counsel has already been paid for its time prosecuting this case through the attorneys' fees awarded by Judge Hurd. Accordingly, the Plaintiff's Motion for Default Judgment is denied. A full-text copy of the District Court's July 11, 2019 Memorandum Decision and Order is available at https://tinyurl.com/y5jj2vxd from Leagle.com. Karen Muldowney, individually and on behalf of all those similarly situated, Plaintiff, represented by Craig B. Sanders -- csanders@barshaysanders.com -- Barshay Sanders, PLLC & David Michael Barshay -- dbarshay@sbglawny.com -- Barshay Sanders, PLLC. MIDLAND CREDIT: Roman-Negron Suit Moved to E.D. New York -------------------------------------------------------- The class action lawsuit styled as Lourdes Roman-Negron on behalf of herself and all others similarly situated, the Plaintiff, vs. Midland Credit Management, Inc., the Defendant, Case No. 603233/2019, was removed from the Supreme Court, Suffolk County, to the U.S. District Court for the Eastern District of New York (Central Islip) on July 12, 2019. The Eastern District of New York Court Clerk assigned Case No. 2:19-cv-04020. The suit alleges violation of the Fair Debt Collection Act demanding $501,000 worth of damages. Midland Credit Management, Inc. was founded in 1953. The company's line of business includes extending credit to business enterprises for relatively short periods.[BN] The Plaintiff appears pro se. Attorneys for the Defendant are: Ellen Beth Silverman, Esq. Matthew B Corwin, Esq. HINSHAW & CULLERTSON 800 Third Avenue, 13th Floor New York, NY 10022 Telephone: (212) 471-6229 Facsimile: (212) 935-1166 E-mail: esilverman@hinshawlaw.com mcorwin@hinshawlaw.com MONSANTO COMPANY: Myerses Sue over Sale of Herbicide Roundup ------------------------------------------------------------ ELLYN MYERS, and ARTHUR MYERS, the Plaintiffs, v. MONSANTO COMPANY and John Does 1-50, the Defendants, Case No. 2:19-cv-04033 (E.D.N.Y., July 12, 2019), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. Ellyn Myers' injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiffs are represented by: Wendy R. Fleishman, Esq. Kelly McNabb, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: (212) 355-9500 Facsimile: (212) 355-9592 E-mail: wfleishman@lchb.com kmcnabb@lchb.com - and - Jennifer A. Moore, Esq. Ashton Rose Smith, Esq. MOORE LAW GROUP, PLLC 1473 South 4th Street Louisville, KY 40208 Telephone: (502) 717-4080 Facsimile: (502) 717-4086 E-mail: jennifer@moorelawgroup.com ashton@moorelawgroup.com NATIONAL BEVERAGE: Court Denies Sanction in L. Rice Suit -------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, issued a Memorandum Opinion and Order denying Defendant's Motion for Sanction in the case captioned LENORA RICE, on behalf of herself and other persons similarly situated, Plaintiffs, v. NATIONAL BEVERAGE CORP. d/b/a LaCROIX SPARKLING WATERS, Defendants. Case No. 18 CV 7151. (N.D. Ill.). The Plaintiff brought state law claims for breach of warranty, unjust enrichment, and violating the Illinois Consumer Fraud and Deceptive Business Practices Act. The complaint summarized the case as a challenge to the defendant's practice of mislabeling their signature product, LaCroix Water, as all-natural. LaCroix Water is manufactured using non-natural flavorings and synthetic compounds, and Defendant continues to mislead consumers into believing that their product is natural when it is not. Defendant National Beverage Corp., doing business as LaCroix Sparkling Waters, asks the court to sanction plaintiff Lenora Rice and her counsel under Federal Rule of Civil Procedure (Rule) 11 for plaintiff's frivolous lawsuit, claiming that LaCroix Sparkling Water contains synthetic rather than natural ingredients. Defendant also accuses plaintiff of a public smear campaign that defendant claims is malicious and equivalent to financial terrorism. Rule 11 Does Not Apply to Pre-Removal Action Taken in State Court The defendant seeks Rule 11 sanctions.2 Initially, the court is concerned that defendant points to no federal conduct to which Rule 11 applies. The central purpose of Rule 11 is to deter baseless filings in [federal] district court and thus streamline the administration and procedure of the federal courts. Under Rule 11(b), a lawyer or party certifies four things by presenting a pleading, like a complaint, to a federal district court whether by signing, filing, submitting, or later advocating it. Among other things, the signer certifies that the paper is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation, that the legal claims are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law and that the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation. The Defendant incorrectly asserts that Rule 11 obligated plaintiff to dismiss the complaint immediately upon the case's removal to federal court. Rule 11 does not authorize a federal court to sanction a party for signing and filing a complaint in state court prior to removal. Rule 11 also does not require a plaintiff to update or amend a state court complaint after removal. Nor does Rule 11 reach the other activity discussed by defendant in its briefing: (1) statements in plaintiff's initial disclosures (2) statements made during the November 30, 2018, phone call to make a discovery plan (3) plaintiff's failure to withdraw the complaint after defendant provided, during discovery, a report defendant claims conclusively refutes plaintiff's allegations and (4) plaintiff's opposition to the motion for sanctions. The exclusion in Rule 11(d) covers items (1)-(3), which are discovery communications. This court therefore declines to decide defendant's sanctions motion on these grounds alone. Rule 11 Analysis The Defendant argues generally that the complaint fails to set forth any basis for its primary and central claim that the four compounds identified therein are synthetic. But the complaint need not do so. The issue before the court is whether plaintiff conducted a sufficient pre-suit inquiry and whether the complaint was filed for an improper purpose. Whether counsel did an appropriate amount of pre-filing investigation, and whether a legal position is far enough off the mark to be frivolous are fact-bound and fact-intensive questions. The court must determine whether the lawyer's pre-filing inquiry was objectively reasonable under the circumstances. Whether a party acted for an improper purpose is also determined objectively. The parties cite no Seventh Circuit case adopting a burden-shifting framework, and this court sees no need to resolve this issue today, particularly as the parties have not thoroughly briefed this rather complex issue. Regardless who must establish that sanctionable conduct occurred, this court finds that Rule 11 sanctions are unwarranted, primarily because defendant has failed to substantiate the key factual and legal claims made in its Rule 11 motion. Defendant's arguments are grouped as follows: legal and factual contentions about what makes a substance natural; attacks on the adequacy of plaintiff's pre-suit testing; and the allegedly nefarious purpose revealed by the press release sent by plaintiff's attorneys. "Natural" And "Synthetic" Substances There are numerous arrows in defendant's quiver, but perhaps the most important one is its claim, argued first and repeatedly, that plaintiff bases its suit on an incorrect, nonsensical interpretation of an FDA regulation, an interpretation of the law so misguided and so unreasonable that it can only be the product of bad faith. The court, however, sees nothing obviously misguided and unreasonable about plaintiff's view of what the regulation asserts, that two substances used in defendant's sparkling water, limonene and linalool, are synthetic. Plaintiff alleges that defendant's sparkling water contains four synthetic substances: ethyl butanoate, limonene, linalool and linalool propionate. Two of those substances, limonene and linalool, are listed in Title 21 CFR Section182.60, under the following heading: "Synthetic flavoring substances and adjuvants that are generally recognized as safe for their intended use are as follows: Limonene and Linalool." Disregarding the various listed forms of these substances (which defendant has not attempted to explain to the court), the court sees nothing obviously misguided and unreasonable about plaintiff's view that the regulation indicates that limonene and linalool are synthetic. The Defendant argues that the regulation refers only to the synthetic versions of these substances and not to their natural counterparts. But how is the court to know, at this early stage of the litigation, that there are natural counterparts? Or that the limonene and linalool found in defendant's water are invariably in a natural form? Before examining whether plaintiff's counsel should have known that the regulation means what defendant says it means, defendant should give the court some basis for believing that plaintiff's interpretation is unreasonable. Just saying so, even if repeatedly, does not do so. The Defendant points out that the FDA list does not include the two other substances identified in defendant's product, linalool propionate and ethyl butanoate. Defendant has not provided the court with evidence as to the nature of these substances, apparently assuming that the court will conduct its own internet analysis. It has done so, but it will not decide this motion based on such an off-the-record private search. In any event, this is what Wikipedia says about ethyl butanoate: "Ethyl butyrate, also known as ethyl butanoate, or butyric ether, is an ester with the chemical formula CH3CH2CH2COOCH2CH3. It is soluble in propylene glycol, paraffin oil, and kerosene. It has a fruity odor, similar to pineapple and is a key ingredient used as a flavor enhancer in processed orange juices. Not being a biologist and having no expert assistance, the court has no idea what this means as to the question of whether ethyl butyrate is natural or synthetic." The court has found nothing comparable describing linalool propionate, nor has defendant explained what it is. Pre-Suit Testing The next argument defendant asserts is that plaintiff and her counsel filed this lawsuit based upon the testing of only a single flavor of defendant's water. The court is hard-pressed to know what to make of this argument, particularly given that neither party makes any legal argument concerning it. Defendant does not indicate whether the substances listed in paragraph 18 of the complaint are found in other LaCroix Water flavors, and perhaps it need not do so. Does the complaint violate Rule 11 if only one of defendant's flavors advertised as all natural contains synthetic ingredients? Perhaps such an argument could be made, but at this preliminary stage in the litigation and lacking legal argument, the court has not been presented with any argument as to what it should do with a complaint that is well-grounded but only in part. The Defendant also argues that the form and type of testing performed by Plaintiff and her counsel on a single flavor would not even detect if LaCroix sparkling water contains synthetic ingredients. The Defendant asserts that it is impossible to `reverse engineer' an already-carbonated beverage to divine its original, pre-carbonation ingredients. If defendant is right, then its call for more pre-suit testing would not yield any useful information, and discovery would be required. The Defendant further argues that plaintiff's laboratory analysis was inadequate because it did not include either a gas chromatography or mass spectrometry analysis of the ingredients identified. But defendant fails to tell the court whether gas chromatography and mass spectrometry are essential to the identification of these four substances or whether they would answer the question of whether the substances are natural or synthetic. The court has no idea. Defendant has provided an exhibit, Ex. B to its motion, which indicates that plaintiff's laboratory conducted gas chromatography/mass spectrometry (GC/MS) and excluded the presence of various substances in defendant's water. The Plaintiff has not alleged the contrary. Press Release The Defendant complains, perhaps justifiably, that plaintiff issued a press release that claimed that substances in defendant's beverage appear in other non-consumable products, associated with insecticides, tumors, and cancer, causing significant damage to defendant and to its shareholders. Defendant has not suggested that these claims are untrue, nor has it provided the court with any authority suggesting what action it can take at this point for press releases issued before removal. The Plaintiff argues that it is common in cases attempting to demonstrate the synthetic nature of food additives to refer to their non-food uses. It appears that plaintiff's counsel, probably as defendant asserts to increase the settlement value of the case, has made true statements about non-consumable uses of the ingredients its laboratory identified in defendant's product. The press release might provide some evidence of a motive to shock the public and thus enhance the settlement value of the case, but without any indication that the statements were not true or that the complaint is without a reasonable basis, it is hard to know what to do if a plaintiff's lawyer makes true statements to maximize the value of his case. If there is a basis for doing anything, defendant has left it entirely to the court to try to figure out what it is. This is not the court's job. Because the defendant has failed to substantiate the key legal and factual claims made in its Rule 11 motion, the motion is denied. A full-text copy of the District Court's July 11, 2019 Memorandum Opinion and Order is available at https://tinyurl.com/y3dyasyy from Leagle.com/ Lenora Rice, on behalf of herself and other persons similarly situated, Plaintiff, represented by Roberto Luis Costales, Beaumont Costales, Jonathan Mille Kirkland, Beaumont Costales LLC, & William Henry Beaumont, Beaumont Costales LLC. 3801 Canal St 207, New Orleans, LA 70119. National Beverage Corp., doing business as, LaCroix Sparkling Waters Defendant, represented by April Lynn Boyer -- april.boyer@klgates.com -- K&l Gates LLP, pro hac vice, Desiree F. Moore -- desiree.moore@klgates.com -- K&L Gates LLP, Matthew Gordon Ball -- matthew.ball@klgates.com -- K&L Gates LLP, pro hac vice, Eric Corey Edison -- eedison@waldmanlawfirm.com -- Waldman Trigoboff Hildebrandt & Calnan, P.A., pro hac vice, Glenn Waldman -- gwaldman@waldmanlawfirm.com -- Waldman Trigoboff Hildebrandt & Calnan, P.A., pro hac vice & Matthew Allen Alvis -- matt.alvis@klgates.com -- K&l Gates LLP. NATIONAL COLLEGIATE: Fails to Protect Student-Athletes, Redd Says ----------------------------------------------------------------- ROBERT EARLY REDD v. THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, AND SOUTHWESTERN ATHLETIC CONFERENCE, Case No. 1:19-cv-02814-JPH-DML (S.D. Ind., July 9, 2019), is brought individually and on behalf of others similarly situated alleging that the Defendants failed to meet their legal responsibility to safeguard student-athletes. Mr. Redd alleges that despite the NCAA's and member conferences' assumption of this responsibility for player safety, the Defendants were negligent and failed to carry out this duty in that they failed to implement and enforce regulations that would properly protect student-athletes from the risks associated with concussions and/or manage those risks to properly respond to the medically proven fact that repetitive concussions would lead to brain injuries in many football players, including the Plaintiff and the Class. National Collegiate Athletic Association is an unincorporated association that acts as the governing body of college sports with its principal office located in Indianapolis, Indiana. NCAA is not organized under the laws of any State, but is registered as a tax-exempt organization with the Internal Revenue Service. Southwestern Athletic Conference is a corporation organized under the laws of the state of Alabama, with its headquarters and principal place of business located in Alabama.[BN] The Plaintiff is represented by: George Parker Young, Esq. Vincent P. Circelli, Esq. Kelli L. Walter, Esq. CIRCELLI, WALTER & YOUNG, PLLC Tindall Square Warehouse 500 E. 4th Street, Suite 250 Fort Worth, TX 76102 Telephone: (817) 697-4942 E-mail: gpy@cwylaw.com vinny@cwylaw.com kelli@cwylaw.com NATIONAL COLLEGIATE: Has Sacrificed Player Safety, Oubre Alleges ---------------------------------------------------------------- LOUIS B. OUBRE, III v. THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Case No. 1:19-cv-02812-RLY-MJD (S.D. Ind., July 9, 2019), is brought on behalf of the Plaintiff and other similarly situated putative class members alleging that the Defendant sacrificed player safety -- including the Plaintiff's and the Class' long-term health and well-being -- in favor of profits and self-promotion. As the governing body of college football, the NCAA held and holds itself out as the "guardian" of, and ultimate authority on player safety, the Plaintiff asserts. He contends that player safety is supposed to be safeguarded with rules, information, and best practices that protect the athletes as much as possible from short-term and long-term health risks. But they did not, because for the past several decades the NCAA and its member conferences placed profits far ahead of player safety, he alleges. National Collegiate Athletic Association is an unincorporated association that acts as the governing body of college sports with its principal office located in Indianapolis, Indiana. NCAA is not organized under the laws of any State, but is registered as a tax-exempt organization with the Internal Revenue Service.[BN] The Plaintiff is represented by: George Parker Young, Esq. Vincent P. Circelli, Esq. Kelli L. Walter, Esq. CIRCELLI, WALTER & YOUNG, PLLC Tindall Square Warehouse 500 E. 4th Street, Suite 250 Fort Worth, TX 76102 Telephone: (817) 697-4942 E-mail: gpy@cwylaw.com vinny@cwylaw.com kelli@cwylaw.com NATIONAL COLLEGIATE: Sued by Rangel for Sacrificing Player Safety ----------------------------------------------------------------- JONATHAN RANGEL v. THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, AND THE LONE STAR CONFERENCE, Case No. 1:19-cv-02813-JPH-MJD (S.D. Ind., July 9, 2019), is brought individually and on behalf of others similarly situated accusing the Defendants of sacrificing player safety. Despite the NCAA's and member conferences' assumption of this responsibility for player safety, the Defendants were negligent and failed to carry out this duty in that they failed to implement and enforce regulations that would properly protect student-athletes from the risks associated with concussions and/or manage those risks to properly respond to the medically proven fact that repetitive concussions would lead to brain injuries in many football players, including the Plaintiff and the Class, according to the complaint. National Collegiate Athletic Association is an unincorporated association that acts as the governing body of college sports with its principal office located in Indianapolis, Indiana. NCAA is not organized under the laws of any State, but is registered as a tax-exempt organization with the Internal Revenue Service. Lone Star Conference is an unincorporated association with its principal place of business located in Richardson, Texas. Lone Star Conference is not organized under the laws of any state, but is registered as a tax-exempt organization with Internal Revenue Service.[BN] The Plaintiff is represented by: George Parker Young, Esq. Vincent P. Circelli, Esq. Kelli L. Walter, Esq. CIRCELLI, WALTER & YOUNG, PLLC Tindall Square Warehouse 500 E. 4th Street, Suite 250 Fort Worth, TX 76102 Telephone: (817) 697-4942 E-mail: gpy@cwylaw.com vinny@cwylaw.com kelli@cwylaw.com NECESSARY CLOTHING: Pilikyan Sues Over Illegal Marketing Texts -------------------------------------------------------------- DONNA PILIKYAN, individually and on behalf of all others similarly situated v. NECESSARY CLOTHING, INC., a New York Corporation, Case No. 9:19-cv-80894-RAR (S.D. Fla., July 9, 2019), arises from the Defendant's alleged violation of the Telephone Consumer Protection Act in connection with its telemarketing text messages sent to the Plaintiff's cellular telephone number. Necessary Clothing is a New York corporation whose principal office is located at 470 Broadway, in New York City. The Company directs, markets, and provides its business activities throughout the state of Florida. The Defendant is an online clothing store. To promote its services, the Defendant engages in unsolicited marketing, harming thousands of consumers in the process.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 1205 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com gberg@shamisgentile.com - and - Scott Edelsberg, Esq. Jordan D. Utanski, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd #607 Aventura, FL 33180 Telephone: (305) 975-3320 E-mail: scott@edelsberglaw.com utanski@edelsberglaw.com NEW MEXICO: 10th Cir. Dismisses Amaro COA Petition -------------------------------------------------- The United States Court of Appeals, Tenth Circuit, issued an Opinion denying Plaintiff's Motion Seeking Certificate of Appealability in the case captioned PEDRO J. "PETE" AMARO, Petitioner-Appellant, v. ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO; R.C. SMITH, Warden, Respondents-Appellees. No. 19-2064. (10th Cir.). Mr. Pedro Amaro, proceeding pro se, seeks a certificate of appealability (COA) to appeal the district court's denial of his petition for a writ of habeas corpus under Section 2254 of the Antiterrorism and Effective Death Penalty Act (AEDPA). Mr. Amaro was convicted of various crimes in New Mexico state court. After an appeal to the New Mexico Supreme Court, his conviction became final in November 2005. Other than filing two motions for records and transcripts from the state criminal proceedings, Mr. Amaro took no action to challenge his conviction until he filed a state post-conviction petition in April 2015. That petition was denied later that same month, and his petition for a writ of certiorari to the New Mexico Supreme Court was denied in 2017. In August 2017, Mr. Amaro filed a § 2254 petition in federal court. The district court dismissed Mr. Amaro's class claims because a pro se litigant cannot represented or act on behalf of others and ordered Mr. Amaro show cause why his Section 2254 petition should not be dismissed as untimely. After receiving Mr. Amaro's response, the district court dismissed his petition as untimely and denied him a COA. Mr. Amaro filed a motion to reconsider, but that too was denied. Mr. Amaro timely appealed and now seeks a COA. Mr. Amaro argues that both the district court's rulings dismissing his class claims because he is proceeding pro se and dismissing his individual claims and Section 2254 petition as untimely are wrong. The district court denies a habeas petition on procedural grounds, the petitioner may obtain a COA by showing, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Mr. Amaro cannot satisfy this standard. Class Claims Mr. Amaro claims the district court erred and violated his due process rights when it dismissed the class action claims on grounds that a pro se litigant cannot represent or act on behalf of others. But Mr. Amaro bases his argument on the rules that govern AEDPA, not on due process. He contends that Habeas Rule 2(e) clearly allows an individual, advocate, and/or advocacy organization to submit a habeas petition on behalf of a person or person whose rights have been denied. But Rule 2(e) says no such thing. Rather, it says only that a petitioner who seeks relief from judgments of more than one state court must file a separate petition covering the judgment or judgments of each court. Nevertheless, the habeas rules are relevant here. Rule 12 provides that the Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules. So the question is whether Federal Rule of Civil Procedure 23, which governs class actions in federal court, permits Mr. Amaro to bring these class action claims. The district court held it did not. Because Mr. Amaro is proceeding pro se, he cannot adequately represent the interests of the putative class. Rule 23 thus forecloses him from bringing an action on the class's behalf. The district court held as much, and that holding is beyond debate. Timeliness A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. Relevant here, the one-year limitation period runs from the latest of the date on which the judgment became final, or the date on which the factual predicate of the claim presented could have been discovered through the exercise of due diligence. Although Mr. Amaro's conviction became final in November 2005, he argues his petition was still timely because the underlying cause of action [for Mr. Amaro's stated claims was not discoverable until the Supreme Court of New Mexico issued its decision in De Leon v. Harley, 316 P.3d 896 (N.M. 2013). Pet'r's Br. at 23. There the court held that an indictment must be quashed where a district attorney, rather than the trial judge, was permitted to excuse grand jurors. This argument is unavailing. As the district court noted, Section 2244(d)(1)(D) tolls the limitation period until the date on which the factual predicate of the claim could have been discovered through the exercise of due diligence. The factual predicate of any claim of irregularities in the grand jury process that Mr. Amaro might bring could have been discovered as early as when Mr. Amaro was indicted. Mr. Amaro makes one final timeliness argument: actual innocence. A credible showing of actual innocence may allow a prisoner to pursue his constitutional claims on the merits notwithstanding the one-year limitations period. Only when a petitioner supports his allegations of constitutional error with new reliable evidence that was not presented at trial will he be allowed to pass through the gateway of timeliness and argue the merits of his underlying claims. Before the district court, Mr. Amaro attempted to support his actual innocence claim by addressing the legal sufficiency of his convictions, but he offered no new evidence that was not presented to the jury.Mr. Amaro does no better on appeal. Although he makes a number of disturbing allegations, all of them address the legal issues or are facts known at the time of trial. These allegations do not establish Mr. Amaro's actual innocence. The Court denies Mr. Amaro a COA and dismisses his appeal. A full-text copy of the Tenth Circuit's July 11, 2019 Opinion is available at https://tinyurl.com/y2bj4o2r from Leagle.com. NEW MOOSEJAW: Dawson Asserts Breach of Disabilities Act ------------------------------------------------------- New Moosejaw, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Leshawn Dawson, on behalf of himself and all others similarly situated, Plaintiff v. New Moosejaw, LLC, Defendant, Case No. 1:19-cv-06625 (S.D. N.Y., July 16, 2019). New Moosejaw LLC is a DOT registered motor carrier located in Madison Heights, MI.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal ONE WORLD: Rouze Sues over Defective Chemical Sprayer ----------------------------------------------------- RICHARD ROUZE, individually and on behalf of all others similarly situated, the Plaintiff, vs. ONE WORLD TECHNOLOGIES, INC. d/b/a RYOBI OUTDOOR PRODUCTS, the Defendant, Case No. 2:19-cv-01291-TLN-DB (E.D. Cal., July 11, 2019), targets Defendant's manufacture, marketing, and sale of defective Ryobi Cordless Backpack Chemical Sprayer. According to the complaint, the sprayer wand can easily become detached from the hose causing weed killer and other dangerous chemicals to spray the user. The defect renders the Sprayer dangerous and unsuitable for its principal and intended purpose. The Plaintiff brings claims against Defendant individually and on behalf of a class of all other similarly situated purchasers of the Sprayer for fraud; unjust enrichment; violation of California's Consumers Legal Remedies Act; violation of California's Unfair Competition Law, Cal. Bus. & Prof.; and breach of implied warranty of fitness, the lawsuit says.[BN] Attorneys for the Plaintiff are: L. Timothy Fisher, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ltfisher@bursor.com OTG MANAGEMENT: Ernest et al Seek Minimum Wage, OT Pay ------------------------------------------------------ A class action complaint has been filed against OTG Management, LLC for alleged violations of the Fair Labor Standards Act (FLSA), the New York Labor Law, and the supporting New York State Department of Labor Regulations. The case is captioned RAQUEL ERNEST and CHANTEL LYNCH on behalf of themselves and all others similarly situated, Plaintiffs, -against- OTG Management, LLC, Defendant, Case No. 1:19-cv-03834 (E.D.N.Y., July 7, 2019). Plaintiffs allege that OTG Management failed and refused to pay them at the legally required minimum wage for all hours worked and one-and-one-half times this rate for work in excess of 40 hours per workweek, required tipped workers to engage in dual job duties and side work for more than twenty percent of their time at work, and failed to provide proper notice that they would be paid a subminimum wage. They assert that OTG Management also required them to work off-the-clock and without compensation in violation of the FLSA. OTG Management, LLC is a privately-owned company that owns and operates hundreds of restaurants, bars, and retail stores in airport terminals across North America, including Newark Liberty Airport in Newark, New Jersey and LaGuardia Airport and John F. Kennedy Airport in New York. [BN] The Plaintiffs are represented by: Molly A. Brooks, Esq. Jalise R. Burt, Esq. OUTTEN & GOLDEN LLP 685 Third Ave., 25th Floor New York, NY 10017 Telephone: (212) 245-1000 OZARK PIZZA: Willcutt Seeks Minimum Wage for Delivery Ddrivers -------------------------------------------------------------- ALLISON WILLCUTT, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, vs. OZARK PIZZA COMPANY, LLC, the DEFENDANT, Case No. 4:19-cv-00487-BRW (E.D. Ark., July 12, 2019), seeks to recover declaratory judgment, monetary damages, liquidated damages, prejudgment interest,and costs, including reasonable attorneys' fees as a result of Defendant's failure to pay Plaintiff and all others similarly situated as delivery drivers the legal minimum hourly wage for all hours that Plaintiff and all others similarly situated worked, under the Fair Labor Standards Act, and the Arkansas Minimum Wage Act. According to the complaint, the Defendant does not reimburse delivery drivers at a reasonable approximation of the drivers' actual expenses. As a result of the automobile and other job-related expenses incurred by Plaintiff and other similarly situated delivery drivers, the drivers were deprived of minimum wages guaranteed to them by the FLSA and AMWA. The Defendant has applied the same pay policies, practices, and procedures to all delivery drivers at their stores. Defendant's method of reimbursing delivery drivers' expenses has resulted in an unreasonable underestimation of delivery drivers' automobile expenses throughout the three years preceding the filing of Plaintiffs Original Complaint, causing systematic violations of the minimum wage laws, the lawsuit says. The Defendant owns and operates the Papa John's pizza franchise located at 700 West Main Street in Russellville. Joshua West, 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: west@sanfordlawfirm.com josh@sanfordlawfirm.com PACIFIC MERITAGE: Faces Velasquez Suit in California Super. Court ----------------------------------------------------------------- A class action lawsuit has been filed against Pacific Meritage, LLC, et al. The case is captioned as Samuel Velasquez, on behalf of all others similarly situated, the Plaintiff, vs. Pacific Meritage, LLC and Does 1-50, the Defendants, Case No. 34-2019-00259781-CU-OE-GDS (Cal. Super., July 2, 2019). The suit alleges employment related violation. Attorney for the Plaintiff is: William L. Marder, Esq. MARDER EMPLOYMENT LAW 6200 Stoneridge Mall Rd., Ste 300 Pleasanton, CA 94588 Telephone: 925 399 6227 Website: marderemploymentlaw.com PAPA MURPHY'S: Cottle Moves to Certify Class of Store Managers -------------------------------------------------------------- The Plaintiffs in the lawsuit entitled AMANDA COTTLE, Individually and on behalf of all others similarly situated v. PAPA MURPHY'S COMPANY STORES, INC., a foreign Corporation, Case No. 3:19-cv-00045-HES-MCR (M.D. Fla.), ask the Court to enter an order conditionally certifying a nationwide Fair Labor Standards Act Collective of Store Managers. On January 8, 2019, Plaintiff Amanda Cottle filed this lawsuit alleging violations of the FLSA on behalf of Plaintiffs and all other similarly situated SMs. To date 14 additional Opt-In Plaintiffs have joined the case by filing Consents to Join. The Plaintiffs all allege that due to the Defendant's unlawful policy of misclassifying them as employees exempt from overtime wages, the Defendant failed to pay them and other SMs overtime wages they are owed for the hours they worked over 40 in a workweek. Amanda Cottle and 14 Opt-In Plaintiffs also move for an order: (a) requiring the Defendant to produce in an electronic or computer-readable format the full name, address(es), work and personal telephone number(s), and e-mail address(es) (including personal email addresses to the extent they are available) for FLSA Collective members; (b) authorizing notice with a form of Consent to Join to the FLSA Collective members, disseminated by U.S. Mail, e-mail, text message and via website (returnable via mail, e-mail, fax, or via Web site); (c) authorizing reminder notices halfway through the 60-day notice period; and (d) requiring posting of the notice at a conspicuous location in each of its stores.[CC] The Plaintiffs are represented by: Gregg I. Shavitz, Esq. Logan A. Pardell, Esq. SHAVITZ LAW GROUP, P.A. 951 Yamato Road, Suite 285 Boca Raton, FL 33431 Telephone: (561) 447-8888 Facsimile: (561) 447-8831 E-mail: gshavitz@shavitzlaw.com lpardell@shavitzlaw.com - and - Michael J. Palitz, Esq. SHAVITZ LAW GROUP, P.A. 800 3rd Avenue, Suite 2800 New York, NY 10022 Telephone: (800) 616-4000 Facsimile: (561) 447-8831 E-mail: mpalitz@shavitzlaw.com - and - Richard Celler, Esq. CELLER LEGAL, P.A. 7450 Griffin Road, Suite 230 Davie, FL 33314 Telephone: (954) 903-7475 E-mail: Richard@floridaovertimelawyer.com The Defendant is represented by: Samuel Horovitz, Esq. ROGERS TOWERS, P.A. 1301 Riverplace Boulevard, Suite 1500 Jacksonville, FL 32207 Telephone: (904) 346-5774 E-mail: shorovitz@rtlaw.com - and - Edwin Harnden, Esq. Paula Barran, Esq. Richard Hunt, Esq. BARRAN LIEBMAN LLP 601 SW 2nd Avenue, Suite 2300 Portland, OR 97204 Telephone: (503) 276-2101 E-mail: eharnden@barran.com pbarran@barran.com rhunt@barran.com PHL VARIABLE: Susman Named Fan-Kenney/Advanced Trust Suits Counsel ------------------------------------------------------------------ In the cases, DEREK FAN, on behalf of himself and all others similarly situated, Plaintiffs, v. PHL VARIABLE LIFE INSURANCE COMPANY, Defendant. ADVANCE TRUST & LIFE ESCROW SERVICES, LTA AS NOMINEE OF LIFE PARTNERS POSITION HOLDER TRUST, and JAMES KENNEY, on behalf of themselves and all others similarly situated, Plaintiffs, v. PHL VARIABLE LIFE INSURANCE COMPANY, Defendant, Case Nos. 18 Civ. 1288 (PAC), 18 Civ. 3444 (PAC) (S.D. N.Y.), Judge Paul A. Crotty of the U.S. District Court for the Southern District of New York (i) consolidated the Fan and Kenney/Advanced Trust Actions pursuant to FRCP 42(a); and (ii) appointed Susman Godfrey L.L.P. as the sole interim class counsel for both actions. Both of these class actions challenge the legality of a cost of insurance ("COI") adjustment announced by PH in 2017. This is not, however, the first time PHL's COI increase has been challenged through class action litigation. Two lawsuits challenged the legality of PHL's 2010 and 2011 COI increases, Fleisher, et al. v. Phoenix Life Ins. Co., 11 Civ. 8405 (CM) and SPRR LLC v. PHL Variable Ins. Co., Case No. 14 Civ. 8714 (CM) (S.D.N.Y), and settled in 2015 for monetary and non-monetary relief of over $130 million. PHL agreed as part of the Fleischer/SPRR settlement not to raise COI rates on members of the settlement class until at least Dec. 31, 2020. The named Plaintiff in the Fan Action, Fan, is a PHL life insurance policy owner whose policy is already subject to the 2017 COI Increase, and he seeks certification of a class of PHL policyholders subject to the 2017 COI increase, but not subject to Fleisher/SPRR settlement. One of the named Plaintiffs in the Kenney/Advance Trust action, however, is an institutional policyholder whose policies are subject to the Fleisher/SPRR settlement, and who consequently will not have to pay the 2017 COI Increase until at least 2020. The Plaintiffs in the Kenney/Advance Trust Action seek to certify a class comprised of any PHL policyholder who received notice of the 2017 COI Increase, regardless of whether their policies are also subject to the Fleisher/SPRR settlement. The Plaintiff in the Fan Action is represented by Squitieri & Fearon, L.L.P.; Plaintiffs in the Kenney/Advance Trust Action are represented by Susman Godfrey L.L.P. Both firms prevailed on PHL's motions to dismiss for want of personal jurisdiction, which the Court denied on March 12, 2019. The instant motions for interim class counsel appointment followed. The Plaintiffs in these two related actions move to appoint interim class counsel to handle pre-class certification discovery and other pretrial matters. The Plaintiffs in the Kenney/Advanced Trust Action seek the appointment of Susman Godfrey L.L.P. as the sole interim class counsel, while Fan asks the Court to appoint Squitieri & Fearon, L.L.P. as either sole interim class counsel; or co-interim class counsel with Susman Godfrey L.L.P. Defendant PHL takes no position on these motions but asks that the two actions be coordinated for discovery purposes. Judge Crotty finds that although neither party has expressly moved for consolidation of the Fan and Kenney/Advanced Trust Actions, the need for consolidation is obvious. In both actions, the Plaintiffs challenge the same 2017 COI Increase implemented by the same Defendant, and the proposed class in the Kenney/Advanced Trust Action encompasses all the Plaintiffs encompassed in the proposed class in Fan. As PHL noted at the pretrial conference on April 24, 2019, if these cases are not consolidated, PHL will have to respond to two different sets of discovery requests largely about the same issue, resulting in needless duplication of effort and inefficiencies. Accordingly, absent an objection from any party, the Judge consolidates Fan and Kenney/Advanced Trust Actions pursuant to FRCP 42(a). Co-interim counsel is not a good fit for these cases. Judging from the brief litigation history of these cases, the Judget finds that a forced coupling of these two firms is unlikely to result in enhanced efficiency or better advocacy for the proposed class. The parties have been unable to reach consensus on issues as small as a briefing schedule for the instant motion, or whether the Plaintiffs in the Kenney/Advanced Trust action should be permitted to amend their Complaint -- a request unopposed by the only actual adversary of both the Plaintiffs in the action, Defendant PHL. Further, there is no demonstrable need for more than one firm. Because the proposed class in the Kenney/Advanced Trust encompasses all members of the Fan Action, and merely adds to it policyholders whose policies are subject to the Fleischer/SPRR settlement, the interests of both classes are not, at least at this preliminary stage, in conflict. There is no persuasive reason why one firm cannot advocate for the needs of all the class members simultaneously. Since the Judge will not appoint both Squitieri and Susman as the interim class counsel, Susman is the obvious choice under FRCP 23(g)(1)(A). He concludes that the law firm Susman Godfrey L.L.P. can best serve the interests of the proposed class members in both actions for purposes of pre-class certification discovery. Accordingly, he appoints Susman Godfrey L.L.P. the sole interim class counsel in both actions. In light of the foregoing, Judge Crotty consolidated the Fan and Kenney/Advanced Trust Actions pursuant to FRCP 42(a). The motion to appoint Susman Godfrey L.L.P. as the sole interim class counsel for both actions is granted, and the motion to appoint Squitieri & Fearon, L.L.P. as the sole interim class counsel, or, in the alternate, as co-interim class counsel is denied. A separate order confirming the appointment and outlining Susman's responsibilities will follow. The Clerk of the Court is instructed to close the motions at Dkts. 69, 74 & 75 on 18-cv-3444 and the motion at Dkt. 69 on 18-cv-1288. A full-text copy of the Court's May 29, 2019 Opinion and Order is available at https://is.gd/CUaZTg from Leagle.com. Derek Fan, on behalf of themselves and all others similarly situated & Robert Putz, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Paul Vincent Sweeny -- paul@sfclasslaw.com -- Squitieri & Fearon, LLP, James Stuart Notis, Gardy & Notis, LLP, Jennifer Sarnelli -- jsarnelli@gardylaw.com -- Gardy & Notis, LLP & Stephen John Fearon, Jr. -- stephen@sfclasslaw.com -- Squitieri & Fearon LLP. PHL Variable Insurance Company, Defendant, represented by Jarrett Earl Ganer -- jarrett.ganer@mhllp.com -- McDowell Hetherington LLP, Thomas F.A. Hetherington -- tom.hetherington@mhllp.com -- McDowell Hetherington LLP, pro hac vice, Michael Quinn Eagan, Law Offices of Michael Q. Eagan, LLP & Randy J. Duncan -- randy.duncan@mhllp.com -- McDowell Hetherington LLP. POWERCOMM CONSTRUCTION: $177K Atty's Fees in Randolph Reversed -------------------------------------------------------------- The United States Court of Appeals, Fourth Circuit, issued an Opinion reversing the District Court's Order granting Plaintiffs' Motion for Attorney's Fees in the case caption GREGORY RANDOLPH, on his own behalf and on behalf of all others similarly situated; DANA BROWN; TWANDA BANISTER; GREGORY EUBANKS; ARTHUR HINNANT; EZRA CHARLES CALLOWAY; RHASAAN DARK; RODNEY WILLIAMS; KENNETH JACKSON; GEORGE MILES; JAMAL DREW; KENNETH SEARLES; DEXTER ANDERSON; BERNARD BROWN; NATESHIA DECHE BEASLEY; EUNICE MELTON; ROBIN MELTON; EARNEST LEE ALLEN, JR.; SHANINA WASHINGTON; MELVIN L. WEBB-BEY; SYLVIOUS WILLIAMS; FASIL ALEMAYEHU; AMISHA BENNETT; EDWARD ROBINSON; DANIELLE SMITH; RONALD WALL; ROY BENNETT; MELQUIN GAINO; LESLIE GROSS; ANTONIO WALL; LAMONT NEWTON; ANTHONY WILLS; LAMARR YOUNG; MICHELLE BENNETT; RODNEY BROOKS; LARRY JEFFERSON; LENARD PRINGLE; JUSTIN FOSTER; EDDIE PERKINS; SEAN E. PITTMAN; JIMMIE MISSOURI; KEVIN SORRELL; TERENCE BROWN; TERRANCE DOVE; ERIC SHEFFEY; TERRELL TWITTY; JEFF JORDAN; SAMUEL HEGWOOD; JOHNNY BOYKIN; BERNARD BENNETT; LAVELLE GANT; DONALD RAY JONES; CORNELIUS REDFEARN; DARNELL MADDOX; RONALD YOUNG; CALVIN GORHAM, Plaintiffs-Appellees, and VAN EUBANKS; DAVID PETERSON; JACQUELINE RIDLEY; RALEIGH WALL; MICHAEL ALLEN; ANDRE ADAMS; REGINA FREEMAN; ALONZO E. MUDD; ROBERT L. WALL, JR.; WILLIAM HOLLAND, Plaintiffs, v. POWERCOMM CONSTRUCTION, INC.; DAVID KWASNIK, SR., Defendants-Appellants. No. 18-1728. (4th Cir.). PowerComm Construction, Inc., and its owner, David Kwasnik, Sr., appeal the district court's order awarding Appellants' employees or former employees the plaintiffs below $177,756.50 in attorney's fees. Gregory Randolph initiated this lawsuit by filing a proposed class action in the United States District Court for the District of Maryland pursuant to the Maryland Wage and Hour Law (MWHL) and the Fair Labor Standards Act (FLSA). Randolph alleged that Appellants, his former employers, failed to appropriately pay its employees for overtime work. In the complaint, Randolph sought relief in the form of unpaid overtime wages with interest, liquidated damages, attorney's fees, and a declaration that Appellants had violated both the MWHL and the FLSA. The Court reviews an award of attorney's fees for abuse of discretion. The Court must show enough deference to a primary decision-maker's judgment that the court does not reverse merely because it would have come to a different result in the first instance. The Appellants make two arguments in this second appeal. First, they assert that the district court failed to properly reduce the fee award in light of the ten plaintiffs dismissed at summary judgment. Second, the Appellants argue the district court failed to properly assess the Appellees' degree of success, given the disparity between the damages requested at the outset of litigation and the ultimate amount recovered in the settlement. In light of these asserted errors, Appellants request the Court vacates the district court's fee award and, rather than remanding a second time for another round of fee litigation, order that an appropriate fee be awarded. Pursuant to the FLSA, a prevailing plaintiff is entitled to an award of reasonable attorney's fees. To properly calculate an attorney's fees award, courts undertake a three-step process: (1) determine a lodestar figure (2) subtract fees for hours spent on unsuccessful claims unrelated to successful ones and (3) evaluate the degree of success of the plaintiffs. The Court concludes the district court abused its discretion at step three. Lodestar The Court begins at step one by determining the lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate. This figure is presumptively reasonable except in those rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee. The district court concluded that the lodestar figure in this case was $183,764.00. The Court has no quarrel with this figure. Unsuccessful Plaintiffs At the second step, the court must subtract fees for hours spent on unsuccessful claims unrelated to successful ones. But, where all claims involve a common core of facts much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Here, on this second appeal, after subtracting unspecified billing entries, the district court reduced the lodestar figure by approximately $6,000; a mere 3% of the lodestar figure to account for hours spent that were expressly billed to the ten unsuccessful plaintiffs (who represented 15% of the class). The district court concluded that the remainder of the time was intertwined with the litigation as a whole and was not appropriately subtracted. While we may not have reached the same outcome in the first instance, we nonetheless conclude the district court did not abuse its discretion at step two. Degree of Success At step three, after determining the lodestar amount and subtracting for fees related to unsuccessful claims, the court should award some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff. Here, the district court wholly failed to account for both the utterly unsuccessful plaintiffs and the meager victories. Thus, the Court concludes the district court failed to properly calculate the degree of success enjoyed by Appellees. Taking into account all of these factors, we conclude the district court abused its discretion when it erroneously failed to consider the ten dismissed plaintiffs and Appellees' limited degree of litigation success. There were ten plaintiffs 15% of the collective class who were entirely unsuccessful, and the district court failed to account for their dismissal in its step three analysis. While the district court did make a $6,007.50 reduction at step two (a mere 3% of the lodestar figure) to account for billing entries explicitly associated with the ten plaintiffs, it failed to incorporate the ten dismissed plaintiffs in its calculation of the degree of overall success at step three. In doing so, the district court effectively found 97%6 of the fees to be too "intertwined" to be deducted when it considered the overall success of the litigation. As a result, the district court excluded the ten dismissed plaintiffs (again, 15% of the plaintiffs) from consideration after step two, rather than properly deducting the billing entries associated with the unsuccessful plaintiffs and then considering the overall degree of success in light of the litigation as a whole including the dismissed plaintiffs. Here, Appellees were categorically unsuccessful in their recovery. At the outset of the litigation, Appellees sought far more than just unpaid overtime wages. Appellees also sought liquidated damages and a declaration that Appellants violated the FLSA and MWHL. It is indisputable that the 55 remaining plaintiffs after the ten plaintiffs were dismissed recovered only a single category of the damages sought unpaid overtime wages. Appellees failed to obtain liquidated damages or a declaration that Appellants had violated either the FLSA or the MWHL. Next, the district court abused its discretion by overstating Appellees' degree of success. Specifically, when comparing the relief sought to that recovered, it is clear the district court abused its discretion when it deemed Appellees to be sufficiently successful. The total settlement for all 55 remaining plaintiffs was $100,000.00. Each plaintiff except Dana Brown and Gregory Randolph received only 38% of their claimed unpaid overtime wages. And, in total, Appellees recovered only 6% of the damages sought at the outset of litigation and only 13% of that sought in their amended Rule 26(a) disclosures. The mere fact that, if the case proceeded to trial, Appellees were unlikely to recover more than the settlement amount does not automatically render the outcome categorically successful particularly given that the likelihood of a lower recovery was openly attributed to a lack of evidence supporting Appellees' damages. The Court do plaintiffs no service by rewarding their counsel for pursuing weak claims from the outset. Whereas the district court expressed concern that it did not wish to disincentivize plaintiffs' counsel from reaching reasonable settlements by reducing their attorney's fees awards in cases of more moderate amounts, the flip side is also of concern. That is, plaintiffs' counsel should not be incentivized to solicit clients with promises of riches when they do not have sufficient proof to support the claims. Finally, by failing to consider the degree of success and, rather, considering only whether Appellees achieved sufficient success the district court overstated Appellees' degree of success and erred in not making an attorney's fee award that would properly reflect their success in this case. Accordingly, the Court concludes the district court abused its discretion and vacate the award. Appropriate Award It is well accepted that a request for attorney's fees should not result in a second major litigation. Given that this case has now been before us twice for calculation of the attorney's fees award, the Court now vacates the attorney's fees award and direct that it be reduced by an appropriate amount in order to avoid further expense and the nonessential use of judicial resources associated with remand proceedings and other appeals. As such, the Court concludes a reduction of 25% of the district court's award ($177,756.50) is appropriate in this case and direct that an attorney's fees award of $133,317.38, exclusive of costs, be awarded. The Court concludes that the district court abused its discretion. Accordingly, we vacate the attorney's fees award and direct that an award of $133,317.38, exclusive of costs, be entered by the district court on remand. A full-text copy of the Fourth Circuit's July 11, 2019 Opinion is available at https://tinyurl.com/yy6fz4fu from Leagle.com. ARGUED: Geoffrey M. Bohn, BOHN & BATTEY, PLC, 2007 15th Street North Arlington, VA 22201, Virginia, for Appellants. Nicholas Woodfield, EMPLOYMENT LAW GROUP, P.C., 888 17th Street, NW 9th Floor. Washington, DC, 20006,, for Appellees. ON BRIEF: Robert A. Battey, BOHN & BATTEY, PLC, Arlington, Virginia, for Appellants. R. Scott Oswald, THE EMPLOYMENT LAW GROUP, P.C., 888 17th Street, NW 9th Floor. Washington, DC, 20006, for Appellees. PRESTIGE COSMETICS: Dawson Asserts Breach of Disabilities Act ------------------------------------------------------------- Prestige Cosmetics LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Leshawn Dawson, on behalf of himself and all others similarly situated, Plaintiff v. Prestige Cosmetics LLC, Defendant, Case No. 1:19-cv-06626 (S.D. N.Y., July 16, 2019). Prestige Cosmetics, LLC is in the Cosmetics business.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal QUEENS COUNTY, NY: Court Dismisses H. Best's Suit ------------------------------------------------- The United States District Court for the Eastern District of New York issued a Memorandum and Order dismissing the Pro Se Complaint in the case captioned HILARY A. BEST AND ALL PERSONS SIMILARLY SITUATED, Plaintiffs, v. RICHARD A. BROWN, His Estate and Successors in Office; THE QUEENS COUNTY DISTRICT ATTORNEYS OFFICE, Defendants. No. 19-CV-3724 (WFK) (LB). (E.D.N.Y.). Phe pro se plaintiff, Hilary A. Best, purportedly on behalf of himself and all others similarly situated, filed this action pursuant to 42 U.S.C. Section 1983 against the Office of the Queens County District Attorney, and the recently-deceased Queens County District Attorney, Richard A. Brown. He alleges the deprivation of his constitutional rights and seeks damages. The complaint alleges: the Defendants have practiced a policy of depriving the Plaintiffs of liberty without due process of law in violation of the 14th Amendment to the United States Constitution, by subjecting the Plaintiffs to indictment upon felony complaint without a preliminary hearing or waiver thereof, in violation of CPL secs. 100.05, 180.10 through 180.80, and 190.55(2)(a), and minimum due process of law requiring a hearing when a person faces a mass deprivation of liberty, as without bail pursuant to CPL 530.20. The Plaintiff does not make any personal claims. He provides no information about whether, when or with what crime he was charged and/or convicted, or of what type of preliminary hearing he was deprived. He seeks to bring this claim on behalf of persons who were indicted by the Office of the Queens County District Attorney because, he alleges, the office has been violating the cited provisions since 1991. Claims on Behalf of Others The Plaintiff is a non-attorney proceeding pro se purporting to represent other similarly situated persons. The Plaintiff may not bring this complaint on behalf of others without a lawyer. Thus, the complaint as to other plaintiffs is dismissed without prejudice. His class action certification request, to the degree he expresses one, is denied as moot. Defendants are Immune from this Action The Plaintiff's claim for damages against the Office of the District Attorney, Queens County and Richard Brown, District Attorney Queens County (Brown) in his official capacity are barred by the Eleventh Amendment to the United States Constitution. Stated as simply as possible, the Eleventh Amendment means that, as a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogated the states' Eleventh Amendment immunity when acting pursuant to its authority under Section 5 of the Fourteenth Amendment. To the extent plaintiff seeks to sue Brown for damages in his individual capacity, he has failed to allege any facts in support of his conclusion that Brown personally violated his constitutional rights. If Best seeks damages for Brown's decision to prosecute him, Brown would be entitled to absolute prosecutorial immunity. It is well-settled that prosecutors performing prosecutorial activities that are "intimately associated" with the judicial phase of the criminal process are entitled to absolute immunity from an action for damages under Section 1983.A prosecutor thus has absolute immunity in connection with the decision whether to commence a prosecution. The complaint is dismissed as frivolous because the defendants are absolutely immune from suit. A full-text copy of the District Court's July 11, 2019 Memorandum and Order is available at https://tinyurl.com/y5todaqe from Leagle.com. Hilary A. Best, Plaintiff, pro se. QUEST DIAGNOSTICS: Woods Sues over Data Breach ---------------------------------------------- The case captioned as MARK WOODS, individually and on behalf of all others similarly situated, the Plaintiff, vs. QUEST DIAGNOSTICS INCORPORATED, OPTUM360, LLC and AMERICAN MEDICAL COLLECTION AGENCY, INC., the Defendants, Case No. 2:19-cv-13446 (D.N.J., June 5, 2019), alleges that Defendants failed to properly secure and safeguard protected health information, as defined by the Health Insurance Portability and Accountability Act ("HIPAA"), medical information, and other personally identifiable information (collectively, "PII"); failed to provide timely, accurate, and adequate notice to Plaintiff and other Class Members that the integrity of their PII had been compromised; and failed to provide timely, accurate, and adequate notice to Plaintiff and other Class Members of the nature and scope of the PII that was exposed. On June 3, 2019, Quest publicly announced that approximately two weeks earlier on May 14, its billing collections vendor AMCA advised Quest of "unauthorized activity on AMCA's web payment page" which compromised the PII of approximately 11.9 million Quest patients. The exposed PII included "financial information (e.g., credit card numbers and bank account information), medical information and other personal information (e.g., Social Security 3 Numbers)". Quest further revealed that the exposure occurred between August 1, 2018, and March 30, 2019. Despite the breadth and sensitivity of the PII that was exposed and the attendant consequences to patients as a result thereof, the Defendants failed to disclose the Data Breach for nearly two months from the time it was first discovered, further exacerbating harm to patients. Moreover, to date, Defendants have not disclosed the full extent and nature of the Data Breach, nor offered anything to its patients to address and compensate the harm they have suffered. The Data Breach was a direct result of Defendants' failure to implement adequate and reasonable cyber-security procedures and protocols necessary to protect Patient PII. The Defendants disregarded the rights of Plaintiff and Class Members by: intentionally, willfully, recklessly, or negligently failing to take adequate and reasonable measures to ensure its data systems were protected against unauthorized intrusions; failing to disclose that it did not have adequately robust computer systems and security practices to safeguard Patient PII; failing to take 16 standard and reasonably available steps to prevent the Data Breach; failing to monitor and timely detect the Data Breach; and failing to provide Plaintiff and Class Members prompt and accurate notice of the Data Breach. As a result of Defendants' failure to implement and follow basic security procedures, Patient PII is now in the hands of thieves. Plaintiff and Class Members have had to spend, and will continue to spend, significant amounts of time and money in an effort to protect themselves from the adverse ramifications of the Data Breach and will forever be at a heightened risk of identity theft and fraud, the lawsuit says.[BN] Attorneys for the Plaintiff are: Bobby Saadian, Esq. Justin F. Marquez, Esq. Thiago M. Coelho, Esq. Robert J. Dart, Esq. Patty W. Chen, 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 justin@wilshirelawfirm.com thiago@wilshirelawfirm.com rdart@wilshirelawfirm.com patty@wilshirelawfirm.com QUOGUE CLUB: Fischler Files ADA Suit in E.D. New York ----------------------------------------------------- A class action lawsuit has been filed against The Quogue Club LLC et al. The case is styled as Brian Fischler Individually and on behalf of all other persons similarly situated, Plaintiff v. The Quogue Club LLC, Hallock House of Quogue LLC, Defendants, Case No. 1:19-cv-04058 (E.D. N.Y., July 13, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. The Quogue Club at Hallock House in Quogue, NY, is a luxury boutique hotel at the gateway to the Hamptons and the east end of Long Island.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. Lipsky Lowe LLP 630 Third Avenue Fifth Floor New York, NY 10017 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: chris@lipskylowe.com RBC CAPITAL: Court Dismisses Luis Couple's Securities Suit ---------------------------------------------------------- The United States District Court for the District of Minnesota issued an Order granting Defendant's Motion for Summary Judgment in the case captioned Gary and Caryl Luis, Gary A. Mentz, and Case Michael and Merri Vitse, individually and on behalf of all others similarly situated, Plaintiffs, v. RBC Capital Markets, LLC, Defendant. No. 16-cv-3873 (SRN/DTS). (D. Minn.). The Plaintiffs seek to represent a class of certain individuals who invested in reverse convertible notes (RCNs) and who lost money as a result of that investment. In their initial complaint, the Plaintiffs asserted claims of common law fraud, fraudulent concealment, two violations of the Minnesota Securities Act, common law negligence, breach of fiduciary duty and breach of contract. The seven claims all centered around the same allegations, namely, that RBC engaged in a series of actions designed to hide the true risk of RCNs from investors, while pushing them on individuals who had expressly indicated an unwillingness to partake in options trading or other risky investment strategies. RBC moved for summary judgment with respect to the named Plaintiffs. Specifically, RBC contended, the Plaintiffs' revised theory of the case failed to state an actionable breach of contract claim because (1) a party to a contract cannot use a provision like the Applicable Laws and Regulations paragraph to convert a statutory or regulatory violation into a breach of contract claim (2) even if that contractual provision did allow regulatory violations to be converted into a breach of contract claim, RBC did not violate any relevant FINRA rules, which, unlike the NTMs, are actually considered a law or regulation governed by the contractual provision), (3) even if the NTMs were treated as binding law or regulations, enforceable through the contract, RBC did not violate the NTMs, and, finally, (4) even if a reasonable juror could find that RBC violated the rules and guidance at issue, Plaintiffs' current breach claim more closely resembles their Luis I complaint than their Luis II complaint, and is therefore precluded under SLUSA. Here, the Court will solely discuss RBC's first proposed basis for summary judgment that a party to a contract cannot use a provision like the Applicable Laws and Regulations paragraph to convert a statutory or regulatory violation into a breach of contract claim because it is RBC's strongest argument, and because it single-handedly supports a grant of summary judgment here. Under Minnesota law, a breach of contract claim has four elements: (1) formation of a contract; (2) performance by plaintiff of any conditions precedent (3) a material breach of the contract by defendant; and (4) damages. Laws and Regulations provision of the Client Account Agreement required RBC to comply with certain Financial Industry Regulatory Authority (FINRA) rules and guidance, such that RBC could be held liable for breach of contract if it failed to comply with those rules and guidance. This law compels summary judgment in favor of RBC, for two different reasons. First, although the parties present starkly differing interpretations of the Applicable Laws and Regulations paragraph, the provision can only be read in the manner RBC proposes, that is, as an acknowledgement by the client that the transactions executed through their account will be subject to a complex legal framework. Under this reading of the contract, which the Court may reach as a matter of law, RBC was not under a duty to comply with FINRA rules and guidance, and, consequently, RBC cannot be held liable for breaching that non-existent contractual duty. Second, to the extent there is any doubt as to this first reason, the separation-of-powers concern noted above confirms that Plaintiffs cannot enforce FINRA rules and guidance through the Applicable Laws and Regulations paragraph, and that, consequently, Plaintiffs cannot advance a breach claim here. The Court will address each argument in turn, and will also address Plaintiffs' relevant counterarguments along the way. The Court will first focus on the plain and ordinary meaning of the Applicable Laws and Regulations provision, and on how other courts have interpreted similar language. For ease of reference, the Court will again set forth, in full, the provision's language: In consideration of RBC continuing to or now and hereafter opening an account or accounts (collectively, the Account) for the purchase and sale of securities and commodities for me, or in my name, I agree that all transactions with respect to any such Account shall be subject to the following terms. Applicable Laws and RegulationsAll transactions in my Account shall be subject to all applicable laws and the rules and regulations of all federal, state and self-regulatory agencies, including, but not limited to, the Securities and Exchange Commission, the Commodity Futures Trading Commission, the New York Stock Exchange, Inc., (NYSE), FINRA, the Board of Governors of the Federal Reserve System, and the constitution, rules, and customs of the exchange or market (and the related clearing facility or entity) where executed, as the same may be amended or supplemented from time to time. As is evident, this provision is written in the first person, from the vantage point of the client, e.g., All transactions in my Account, and is included in a list of terms the client is agreeing to, in consideration of RBC opening a securities trading account on their behalf. In other words, there is no indication in this provision that the broker, RBC, is agreeing to do anything on the client's behalf. Of course, the Plaintiffs offer a different interpretation of the Applicable Laws and Regulations provision. That is, in the Plaintiffs' view, the plain language of the Applicable Laws and Regulations provision should be interpreted as a promise from RBC to its clients that 'all transactions' in the [client's account] would comply with 'all applicable laws and regulations.' And if RBC made such a promise in its contract with the Plaintiffs, the argument goes, the Plaintiffs should be able to enforce FINRA regulations and rules by way of that contract. The Court acknowledges that there is some very limited legal support for this position. However, the problem with applying this argument here is that the Applicable Laws and Regulations provision does not contain any such promissory language; the words promise, will comply with, and shall act in accordance with, do not appear in the contract. Rather, the contract says, the Plaintiffs' transactions shall be subject to all applicable laws and regulations. And, this phrase merely memorializes the Plaintiffs' acknowledgment that their trades are subject to applicable rules and regulations and therefore cannot support a breach claim. The Plaintiffs primarily contend that the Applicable Laws and Regulations paragraph here does not state that what is to come is given in consideration of RBC's handling of the account; it does not memorialize the duty of the client, but rather states what a client can expect from RBC. This is not correct. The Applicable Laws and Regulations paragraph is a term agreed to by the client in consideration of RBC opening an investment account on the client's behalf. The paragraph is not offering assurances regarding what a client can expect from RBC. For these reasons, the unambiguous language of the Applicable Laws and Regulations provision favors RBC. That is, in contracting with the Plaintiffs, RBC did not promise to abide by the at-issue financial industry regulations, and, consequently, the Plaintiffs cannot base a breach of contract claim on RBC's failure to comply with those regulations. Second, to the extent there is any doubt about the contract's plain language, RBC is also entitled to summary judgment because allowing Plaintiffs to enforce FINRA rules and guidance through this breach action would vitiate Congress's intent not to allow private rights of action for violations of those rules and guidance, and would accordingly run against basic separation of powers principles. Indeed, almost every court cited in the prior section also made note of this separation of powers concern in the course of its ruling. Palmer v. Ill. Farmers Ins. Co. Palmer, 555 F.3d at 1084-85, which the Court mentioned in passing above, is instructive on this point, too. There, a class of insureds sued their auto insurance companies for failing to provide a discount for cars that have anti-theft devices, as required by Minnesota statute. Because their contracts with the insurers provided that the insurer will calculate a premium based on information the insurer has received from the insured or other sources, or from information in the insurer's possession and because the insurers possessed information that the insureds had anti-theft devices in their car, the insureds argued that failure to comply with the statutory anti-theft discount constituted a breach of contract. The Eighth Circuit rejected this argument as a matter of law. Because breach of contract claims relying on regulatory violations must be considered in the context of the comprehensive regulatory scheme and the historical deference courts have afforded the government] in enforcing the law in this area and because Minnesota's automobile insurance regulatory scheme clearly favored government enforcement over private rights of action, the Eighth Circuit declined to intervene in the administrative scheme of enforcement and create a contractual duty distinct from the statutory mandate. These principles apply with equal force here. The alleged eligibility/suitability violations occurred within the context of a comprehensive regulatory scheme, where courts have historically deferred to FINRA's internal enforcement mechanisms. Indeed, the consent decrees discussed in Plaintiffs' briefing show that FINRA and, to some extent, the SEC) are actively involved in enforcing the specific suitability rules and regulations at issue here. It is also notable that, although Congress has not provided investors a private cause of action by which to enforce FINRA rules and regulations, FINRA provides investors a specialized arbitration forum by which they can enforce such rules or regulations; this forum remains available to the putative class members here. The Court finds the Plaintiffs' arguments to the contrary are not persuasive. First, the Plaintiffs attempt to distinguish Palmer by emphasizing that that case centered around Minnesota state insurance regulations, as opposed to the federal financial regulations at issue here. But, because Palmer, along with all the other cases cited above, addressed a fundamental separation of powers concern, and not a concern tethered solely to state law, this distinction is immaterial. Second, the Plaintiffs also cite a number of cases for the proposition that, even if FINRA rules and guidance cannot be enforced by way of a private cause of action, courts may rely on such regulations for the applicable standards to determine the propriety of financial firms' conduct as an element of a common law claim. The problem, however, is that all of Plaintiffs' cited cases are negligence actions, and accordingly have no applicability to a contract action like this one. The Court grants RBC summary judgment. A full-text copy of the District Court's July 11, 2019 Opinion is available at https://tinyurl.com/y2p3cunq from Leagle.com. Gary Luis, individually and on behalf of all others similarly situated, Caryl Luis, individually and on behalf of all others similarly situated, Gary A. Mentz, individually and on behalf of all others similarly situated, Michael J. Vitse, individually and on behalf of all others similarly situated & Merri L. Vitse, individually and on behalf of all others similarly situated, Plaintiffs, represented by Daniel E. Gustafson -- dgustafson@gustafsongluek.com -- Gustafson Gluek PLLC, Daniel C. Hedlund -- dhedlund@gustafsongluek.com -- Gustafson Gluek PLLC, David A. Goodwin, Gustafson Gluek PLLC, 650 Northstar East, 445 Minnesota Street, 608 Second Avenue, South Suite 900, Minneapolis, Minnesota 55402, Eric S. Taubel -- etaubel@gustafsongluek.com -- Gustafson Gluek PLLC -- Gregg Martin Fishbein -- gmfishbein@locklaw.com -- Lockridge Grindal Nauen PLLP, Scott D. Hirsch, Scarlett & Hirsch, P.A., 7301 W. Palmetto Park Road, Suite 207A, Boca Raton, FL, 33433, pro hac vice &Vernon J. Vander Weide -- vjvanderweide@locklaw.com -- Lockridge Grindal Nauen PLLP. RBC Capital Markets, LLC, Defendant, represented by James K. Langdon -- langdon.jim@dorsey.com -- Dorsey & Whitney LLP, Kirsten E. Schubert -- schubert.kirsten@dorsey.com -- Dorsey & Whitney LLP & Michael E. Rowe -- rowe.michael@dorsey.com -- Dorsey & Whitney LLP. RHODE-NYC LLC: Slade Alleges Violation under Disabilities Act ------------------------------------------------------------- Rhode-NYC, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Linda Slade, individually and as the representative of a class of similarly situated persons, Plaintiff v. Rhode-NYC, LLC, Defendant, Case No. 1:19-cv-06627 (S.D. N.Y., July 16, 2019). Rhode-NYC, LLC is a feminine womenswear collection in vibrant prints, sophisticated colors & effortless shapes.[BN] The Plaintiff is represented by: Dan Shaked, Esq. Shaked Law Group, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Tel: (917) 373-9128 Email: shakedlawgroup@gmail.com RICKART COLLECTION: Simmons Files FDCPA Suit in New Jersey ---------------------------------------------------------- A class action lawsuit has been filed against RICKART COLLECTION SYSTEMS INC. The case is styled as KATANYA SIMMONS Individually and on Behalf of all Others Similarly Situated, Plaintiff v. RICKART COLLECTION SYSTEMS INC, John Does 1-25, Defendants, Case No. 3:19-cv-15253 (D. N.J., July 12, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Rickart Collection Systems (RCS) is a debt collection agency located in North Brunswick Township, New Jersey.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. Stein Saks, PLLC 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 ext 101 Fax: (201) 282-6501 Email: ysaks@steinsakslegal.com SMURFIT KAPPA: Court Narrows Class Claims in Chavez Suit -------------------------------------------------------- In the class action lawsuit styled as Eduardo Chavez, the Plaintiff, v. Smurfit Kappa North America LLC et al., the Defendants, Case No. 2:18-cv-05106-SVW-SK (C.D. Cal.), the Court entered an order on July 5, 2019: 1. granting in part and denying in part Plaintiff's motion for class certification comprising 5 subclasses: "all current and former hourly-paid or non-exempt employees who worked for [Smurfit Kappa] within the State of California at any time during the period from April 19, 2014 up to the deadline, to be determined by the Court at a later date"; a. granting the Rounding Subclass defined as: "all members of the class who were subject to Smurfit Kappa's rounding policy during the Class Period"; and b. granting the Meal Premium Subclass defined as: "all members of the class who were issued a meal period premium at any time during the Class Period; c. denying the Expense Reimbursement Subclass defined as: "all members of the class who purchased protective footwear during the Class Period to comply with Smurfit Kappa's dress code policy and who were not reimbursed for the full amount of the protective footwear"; d. denying the Meal Period Subclass defined as: "all members of the class who were issued a meal period premium at any time during the Class Period"; e. denying the Rest Period Subclass defined as: "all members of the class who worked at least one shift of three and one-half hours or more at any time during the Class Period". 2. appointing Plaintiff as the class representative; and 3. appointing Edwin Aiwazian, Arby Aiwazian, and Jill J. Parker of Lawyers for Justice, PC as class counsel. As to the Rounding Subclass and Meal Premium Subclass, the Court held that Smurfit Kappa does not engage in a standard Rule 23(a) analysis. The Court nevertheless does so and concludes that both subclasses satisfy the requirements of Rule 23(a). As to the Expense Reimbursement Subclass, the Court said class certification is not proper under Plaintiff's reimbursement claim pursuant to California Labor Code section 2800, either. California Labor Code section 2800 provides that an "employer shall in all cases indemnify his employee for losses caused by the employer's want of ordinary care." Neither party discusses this issue, but in any event it is clear that determining whether Smurfit Kappa caused losses for putative class members due to its "want of ordinary care" would occur predominantly on an individualized basis. Thus, class certification on this issue is precluded. As to the Meal Period Subclass, the Court explained that factual difference between the failed rest period subclass and the proposed meal period subclass is that there are timesheet data for meal periods. However, this distinction is ultimately not helpful to Plaintiff. Timesheets can explain only when putative class members missed or took shortened meal breaks. They cannot explain why they did so, and so do not bear on the question of whether Smurfit Kappa "provided" lawful meal periods as required by Brinker, 53 Cal. 4th at 1017, to all of the putative class members. Thus, timesheets do not resolve the significant manageability problems. The Plaintiff claims that it is "not relevant that different versions of the sheets contained different language." To the contrary, the Court continued, it is highly relevant given that Plaintiff is relying on the language in its cited Sheet as evidence of an unlawful and uniform policy. Individual inquiries predominate as to the meal period claim, precluding class certification on this issue. As to the Rest Period Subclass, the Court said that similar manageability problems arise in this case. Beyond arguing that the rest break policy is facially unlawful -- which may or may not be correct -- Plaintiff offers little to suggest that a common question predominates or that class resolution of the issue is the superior method. In his moving papers, Plaintiff refers to a bell system for rest periods but, as noted by Smurfit Kappa, not all of the facilities used a bell system. Furthermore, some employees who worked at the City of Industry facility, which did use a bell system, ignored the bell, staggered their breaks, or otherwise coordinated their breaks with other employees. Thus, despite the presence of an apparently uniform rest break policy, class certification on this issue is inappropriate because individualized questions -- who took rest breaks, when they did so (or not), and (most importantly) why they did so (or not) -- predominate over common questions. A jury trial on the certified issues will take place on October 29, 2019 at 9 a.m., with a pre-trial conference on October 21 at 3 p.m.[CC] SOUTH JERSEY: Class Certification Denial in Cameron Suit Flipped ---------------------------------------------------------------- The Superior Court of New Jersey, Appellate Division, issued an Opinion reversing the District Court's Order denying Plaintiffs' Motion for Class Certification in the case captioned ROBERT CAMERON on behalf of himself and all other similarly situated, Plaintiff-Appellant, v. SOUTH JERSEY PUBS, INC., d/b/a TGI FRIDAY'S, INC., Defendant-Respondent. Docket No. A-5177-17T2. (N.J. Super. Ct. App. Div). The Defendant is a franchisee of TGIF and owns and operates two TGIF restaurants, one in Toms River and the other in Manahawkin. The Plaintiff went to the defendant's restaurant in Toms River. He was given a menu, initially ordered a water, then his meal, and a beer, and then added a soda. He believed that all of this, plus tip, would cost about $20. After finishing his meal, the plaintiff was presented with the bill and was shocked to see that he had been billed over $5 for a mass produced beer and close to $3 for a soda. On his way out, the plaintiff looked at a menu and noticed that the drink prices were not listed. The Plaintiff stated that he never would have ordered the drinks if the prices were listed. In the amended complaint, the plaintiff alleged that the defendant violated the CFA and the TCCWNA based on its failure to list certain beverage prices on its menu. The Plaintiff's motion for class certification under Rule 4:32-1(b)(2) claiming similarity to those considered by the New Jersey Supreme Court in Dugan v. TGI Fridays, Inc., 231 N.J. 24(2017). In Dugan, the Court held that class certification under Rule 4:32-1(b)(3) was not appropriate based on a price-inflation theory. The Dugan plaintiffs argued that TGI Friday's, Inc. (TGIF), the restaurant chain, violated the Consumer Fraud Act (CFA) and the Truth in Consumer Contract, Warranty and Notice Act (TCCWNA), by failing to disclose the prices it charged for beverages on its menus. The motion judge heard argument and afterward denied plaintiff's (b)(2) class certification motion, placing his reasons on the record that day. Initially, the judge opined that the CFA violations here were not clearly established, which would warrant injunctive relief, but that was not dispositive. He also observed that the CFA was not all about a litigant being able to pursue comprehensive injunctive proceedings brought on behalf of thousands of individuals who are now being told they don't have to worry about whether they've been damaged. On appeal, plaintiff contends that the motion judge erred and abused his discretion in not certifying the class based upon the judge's consideration of whether plaintiff is entitled to the relief demanded in his complaint, the ultimate merits of the case and the judge's perception that injunctive relief was not necessary because defendant alleged it voluntarily agreed to disclose beverage prices on its menus going forward. Moreover, plaintiff asserts that the judge incorrectly believed that in order to certify the class, plaintiff was bound to come forward with evidence that all putative class members sustained an ascertainable loss under the CFA. Finally, plaintiff argues that the motion judge conflateed cohesion and predominance. The Defendant contends that the motion judge correctly denied class certification. The thrust of the defendant's response is that proposed class members may have decided to purchase beverages from the defendant on any given date for reasons totally unrelated to the lack of menu pricing. According to the defendant, even if one assumes that patrons viewed the same menus, there is simply no way of knowing which individuals ordered beverages without knowing the prices in advance, and what information about prices they had even in the absence of menu pricing. When considering a motion by plaintiff for class certification, a court is required to examine the claims, defenses, relevant facts, and applicable substantive law. It must accept as true all of the allegations in the complaint and consider the remaining pleadings, discovery and any other pertinent evidence in a light favorable to the plaintiff. To certify a class action, the putative class plaintiff must first establish the requirements in Rule4:32-1(a). This Rule states: (1) the class is so numerous that joiner of all members is impracticable (2) there are questions of law or fact common to the class (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Here, it is obvious that the putative class meets the Rule's requirements. The members of the class are far too numerous for individual joinder. The class members' claims arise from the same events, practice, or conduct, and are based on the same legal theory, as those of other class members. The unlawful conduct alleged here is a violation of the CFA and the TCCWNA arising from the failure to list beverage prices on menus given to plaintiff and the putative class members. Finally, plaintiff can adequately represent the class even if his interests are not identical to all class members, as he doesnot have interests antagonistic to those of the class. Turning first to his CFA claim, plaintiff alleges that defendant knowingly and/or intentionally failed to disclose the prices of various beverages it offers for sale, thereby engaging in a knowing omission in violation of N.J.S.A. 56:8-2.2's prohibition against bait and switch advertising, and N.J.S.A. 56:8-2.5's requirement for merchandise to be price marked at the point of purchase. As stated previously, plaintiff seeks injunctive relief for the class compelling disclosure of beverage prices and declaratory relief confirming that the failure to do so is an unlawful commercial practice under the CFA. In addition to demonstrating that a defendant engaged in an unlawful practice, a private plaintiff asserting a claim under the CFA must also allege that he or she suffered an ascertainable loss, and a causal relationship between the unlawful conduct and the ascertainable loss. An `ascertainable loss' is one that is quantifiable or measurable and not hypothetical or illusory. Applying these guiding principles to the motion judge's decision, it is evident that he conflated various concepts regarding plaintiff's CFA claim. First, he questioned plaintiff's ability to maintain a CFA action for injunctive relief as compared to the Attorney General's. As discussed, that concern had no legal basis because plaintiff pled a viable claim that he suffered such a loss. Second, the judge misconstrued the requirement for cohesiveness to include a requirement that plaintiff had to prove that the class members could all establish damages or an ascertainable loss. This consideration too has no place in determining (b)(2) class certification. Likewise, the judge's consideration of plaintiff's ultimate success on the merits of his class claim for a permanent injunction was not appropriate. Also, contrary to the motion judge's conclusion, Dugan does not bar plaintiff's CFA claims for injunctive relief. In Dugan, the Court also addressed claims for injunctive relief made in the companion case that it decided, Bozzi v. OSI Restaurant Partners LLC, (A-93-15). Addressing Dugan's claims, the Court held that under (b)(3), the plaintiff failed to establish the predominance with respect to their CFA claims, because our CFA class action jurisprudence rejects price-inflation theories for a class numbering in the millions, where plaintiff claimed that TGIF charged each member of the class $1.72 more than the fair or reasonable prices that it would have charged had it disclosed its beverage prices on the menu. As the Court stated, it reached a different conclusion in Bozzi. It explained that for the (b)(3) predominance requirement to be met, a more limited class was required. It stated the following: "Although Bozzi asserts general claims that the defendant's restaurants failed to disclose prices, his allegations focus primarily on a specific pricing practice. He alleges that the defendant's restaurants violated the CFA by increasing the price charged to a customer for the same brand, type, and volume of beverage in the course of the customer's visit to the restaurant, without notifying the customer of the change. Bozzi's counsel represents that this price-shifting claim is supported by claimant-specific receipts showing that each customer making this claim was charged different prices for the same brand, type, and volume of beverage in the course of a single visit to one of the defendant's restaurants. We hold that if the Bozzi class is redefined to include only customers who make that specific CFA claim, and the claim is limited accordingly, plaintiff Bozzi has met the requirements of Rule 4:32-1 and may attempt to prove that claim on behalf of the class." The Court directed that on remand, the trial court should certify the class solely for the purpose of pursuing CFA claims based upon the defendant restaurants' alleged practice of charging a customer different prices for beverages of the same brand, type, and volume during the same restaurant visit. Although the Court also vacated the injunctive relief that the trial court granted in Bozzi compelling the defendant to list beverage prices, it did so only because the injunction applied to too broad of a class and because Bozzi offered no argument in support of the trial court's injunctive relief. However, it specifically preserved Bozzi's claim for injunctive relief under the CFA, directing the trial court to consider the application anew after the certification of the more limited class. The fact that Bozzi did not satisfy the (b)(3) predominance requirement did not therefore persuade the Court that injunctive relief could not be granted. The Court concludes that the plaintiff's CFA claim was appropriate for class certification and raised the precise type of claim that, if proven, was amenable to a single injunction that would afford relief to the entire class, as contemplated by (b)(2). For that reason, the Court reverses the motion judge's determination as to plaintiff's CFA claim. The Court reaches a similar conclusion regarding plaintiff's other (b)(2) claim that defendant violated the TCCWNA, which is intended 'to prevent deceptive practices in consumer contracts.' Under the TCCWNA, a plaintiff must establish: First, that the defendant was a seller, lessor, creditor, lender or bailee or assignee of any of the aforesaid; second, that the defendant offered or entered into a written consumer contract or gave or displayed any written consumer warranty, notice or sign; third, that at the time that the written consumer contract is signed or the written consumer warranty, notice or sign is displayed, that writing contains a provision that violates any clearly established legal right of a consumer or responsibility of a seller, lessor, creditor, lender or bailee as established by State or Federal law; and finally, that the plaintiff is an aggrieved consumer. Under the TCCWNA, there must be a written consumer contract, notice, or sign and the statute does not apply when a defendant fails to provide the consumer with a required writing. However, when a consumer contract contains language prohibited by a regulation, that alone may constitute a violation of a clearly established legal right of a consumer or responsibility of a seller under N.J.S.A. 56:12-15, and thus may provide a basis for relief under the TCCWNA. Indulging plaintiff's contentions here with a liberal construction, a menu is at least an offer to contract. Moreover, while the TCCWNA speaks to inclusion of a prohibited clause or provision, it clearly applies where the offer to contract intentionally omits information that is at least in this case, alleged to be required under the law. To be an aggrieved consumer under the TCCWNA, a consumer must have suffered some form of harm as a result of the defendant's conduct. The harm is not limited to injury compensable by monetary damages.. In Dugan, the Court did not determine whether a defendant restaurant's presentation of a menu that omits beverage prices gives rise to a TCCWNA claim. Rather, it determined that the Dugan and Bozzi plaintiffs could not satisfy the predominance requirement for (b)(3) certification. It found that the plaintiffs could not be aggrieved consumers without proof that they each actually received menus from defendant because the TCCWNA addresses contracts, warranties, notices and signs and does not apply when a defendant fails to provide the consumer with a required writing. The Court also rejected plaintiff's claim under the TCCWNA because there was no evidence, as required by the Act, that the failure to post beverage prices on a menu violated a clearly established legal right. It observed that there were no published opinions or actions taken by the Attorney General that established the failure to list beverage prices on a menu violated N.J.S.A. 56:8-2.5 as alleged by the plaintiffs. Finally, the Court concluded that the Legislature did not intend that the TCCWNA's civil penalties should be imposed as the plaintiffs suggested. It stated that nothing in the legislative history of the TCCWNA, which focuses on sellers' inclusion of legally invalid or unenforceable provisions in consumer contracts, suggests that when the Legislature enacted the statute, it intended to impose billion-dollar penalties on restaurants that serve unpriced food and beverages to customers. The concerns raised in Dugan regarding the TCCWNA claims do not come in to play in plaintiff's case here. First, as noted, the Court did not address the TCCWNA claim for (b)(2) certification, which does not require a focus on each purported class member's individual dining experience. By definition, as plaintiff identified the class, plaintiff and each member of the class received a menu and ordered a beverage. Second, the granting of (b)(2) class certification here does not raise concerns about the Legislature's intention to not impose extreme financial hardship for TCCWNA violations. The focus is rather on whether a single injunction and declaratory relief, if either is warranted, can provide a remedy to the entire class or none of them in order to compel the inclusion of beverage prices on menus, if their omission gives rise to a violation of law. Moreover, if required, the cost of altering menus for the two restaurants is minimal compared to the costs of the penalties addressed by the Dugan Court. Third, although we agree that the Dugan Court correctly observed that there is no case law or Attorney General opinions declaring the failure to include beverage prices on a menu to be a violation of the TCCWNA or any other law, we note that there is no legal authority that holds to the contrary that the omission is in fact lawful. Finally, plaintiff's class is narrowly drawn to include only those who ordered off menus without beverage prices. Whether one or all members of the class did so is of no moment if defendant was required to include the price in order to not violate the law. If a court were to find that the failure to disclose prices on a menu given to plaintiff and the class members was a violation of the TCCWNA because a required provision to a consumer contract was not included, we cannot envision any circumstances where declaratory and injunctive relief would not be valid remedies to consider, if necessary, to secure future compliance with the law. To hold otherwise, would allow a merchant to intentionally violate the law without being subjected to any action brought under (b)(2) or (b)(3) seeking to enforce the CFA and the TCCWNA. Accordingly, the Court is reversed and remanded for entry of an order vacating the denial of class certification and ordering (b)(2) class certification. A full-text copy of the N.J. App. Div.'s July 11, 2019 Opinion is available at https://tinyurl.com/y2p3cunq from Leagle.com. Wesley G. Hanna 125 N Route 73, Law Ofc Sander D Friedman Llc, West Berlin, NJ, 08091-9225, argued the cause for appellant (Law Office of Sander D. Friedman, LLC, attorneys; Sander D. Friedman, 125 N Route 73, Law Ofc Sander D Friedman Llc, West Berlin, NJ, 08091-9225 and Wesley G. Hanna, of counsel and on the briefs). Joseph A. Gallo -- jgallo@mkclaw.us.com -- argued the cause for respondent (McGivney, Kluger & Cook, PC, attorneys; Joseph A. Gallo and William D. Sanders -- wsanders@mkclaw.us.com -- of counsel and on the brief). SPEEDY CASH: Seeks Ninth Circuit Review of Ruling in Delisle Suit ----------------------------------------------------------------- Defendant Speedy Cash filed an appeal from a Court ruling in the lawsuit entitled Cindy Delisle, et al. v. Speedy Cash, Case No. 3:18-cv-02042-GPC-RBB, in the U.S. District Court for the Southern District of California, San Diego. As reported in the Class Action Reporter on July 1, 2019, the District Court issued an Order denying the Defendant's Motion for Arbitration. Speedy Cash offers loans through its physical stores, as well as through online loan portals. Plaintiffs Cindy Delisle and Robert Dougherty (Plaintiffs) filed a First Amended Complaint alleging a putative class action against Defendant Speedy Cash on behalf of themselves and all others similar situated. The Plaintiffs assert claims under California's Unfair Competition Law (UCL) and California's Consumer Legal Remedies Act (CLRA). The appellate case is captioned as Cindy Delisle, et al. v. Speedy Cash, Case No. 19-55794, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant Speedy Cash's opening brief is due on September 9, 2019; -- Appellees Cindy Delisle and Robert Dougherty's answering brief is due on October 9, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellees CINDY DELISLE and ROBERT DOUGHERTY, Individually and On Behalf of All Others Similarly Situated, are represented by: Jason Ibey, Esq. KAZEROUNI LAW GROUP, APC 169 W 2710 S Circle, Suite 204F St. George, UT 84790 E-mail: jason@kazlg.com - and - Abbas Kazerounian, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue Costa Mesa, CA 92626 Telephone: (800) 400-6808 E-mail: ak@kazlg.com - and - Joshua Swigart, Esq. HYDE & SWIGART 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 E-mail: josh@westcoastlitigation.com - and - Ahren A. Tiller, Esq. BLC LAW CENTER, APC 1230 Columbia St., Suite 1100 San Diego, CA 92101 Telephone: (619) 894-8831 E-mail: ahren.tiller@blc-sd.com Defendant-Appellant SPEEDY CASH is represented by: Paul L. Gale, Esq. TROUTMAN SANDERS LLP 5 Park Plaza, Suite 1400 Irvine, CA 92614-2545 Telephone: (949) 622-2700 E-mail: paul.gale@troutman.com STARBUCKS: George et al Suit Transferred to S.D.N.Y. ---------------------------------------------------- The case, CHRISTOPHER GEORGE, JESSICA CHANDRA, LISA JAME, CHELSEA MALEY, APRIL BODDIE, MICKAEL LOUIS, EDUARDO LEACH, JOSH FOLAN, LOGAN VAIRO, and BASMA ATTIEH, on behalf of themselves and a class of similarly situated individuals, Plaintiffs, v. STARBUCKS CORPORATION d/b/a STARBUCKS COFFEE COMPANY, Defendant, Case No. 653015/2019 (Filed on May 21, 2019), was transferred from the New York Supreme Court to the United States District Court for the Southern District of New York on July 2, 2019. It is now assigned to Hon. Judge Alison J. Nathan. The United States District Court for the Southern District of New York assigned Case No. 1:19-cv-06185 to the proceeding. In this complaint, Plaintiffs allege that the Defendant has violated the New York General Business Law by engaging in false advertising and deceptive customer-oriented conduct in connection with its representations to the public that it provides clean, comfortable stores that are a safe environment for its customers. Plaintiffs also contend that the Defendant's statements about its so-called premium products were knowingly false and misleading because it allowed its employees to use a poisonous pesticide in its stores knowing Dichlorvos (2,2-dichlorovinyl dimethyl phosphate or DDVP), an active ingredient in the product sold under the name "Hot Shot No-Pest 2" strips, is highly poisonous and completely unfit for use in proximity to food, beverages and people. Starbucks is a foreign business corporation organized and existing under the laws of the state of Washington with a principal place of business at 2401 Utah Avenue South, Seattle, Washington 98134. The company owns and operates a global chain of coffee shops, comprising over 13,000 stores in more than 70 countries. [BN] The Plaintiffs are represented by: Douglas H. Wigdor, Esq. David E. Gottlieb, Esq. Renan F. Varghese, Esq. WIGDOR LLP 85 Fifth Avenue New York, NY 10003 Telephone: (212) 257-6800 Facsimile: (212) 257-6845 E-mail: dwigdor@wigdorlaw.com dgottlieb@wigdorlaw.com rvarghese@wigdorlaw.com STATION SPORTS: Ruggeiro Seeks Unpaid Overtime Compensation ----------------------------------------------------------- FRANCIS E. RUGGEIRO, on behalf of himself, FLSA Collective Plaintiffs and the Class Members, the Plaintiffs, vs. THE STATION SPORTS BAR AND LOUNGE CORP. d/b/a MR. P'S SOUTHERN SKILLET & ANTHONY PALLINO, the Defendants, Case No. 2:19-cv-04010 (E.D.N.Y., July 11, 2019), seeks to recover unpaid overtime compensation, liquidated damages, prejudgment and post-judgment interest, and attorneys' fees and costs under the Fair Labor Standards Act and the New York Labor Law. According to the complaint, the Defendant knowingly and willfully failed to pay the Plaintiff wages and his lawfully earned overtime compensation in direct contravention of the FLSA and NYLL.[BN] Attorneys for the Plaintiffs are: Anneeba Rehman, Esq. Nadia M. Perez, Esq. PERVEZ & REHMAN, P.C. 68 South Service Road, Suite 100 Melville, NY 11747 Telephone: (631) 427 0700 E-mail: arehman@pervezrehman.com STEMGENEX MEDICAL: Appeals Decision in Moorer Suit to 9th Circuit ----------------------------------------------------------------- Defendants Stem Cell Research Centre, Inc., Stemgenex Medical Group, Inc. and Stemgenex, Inc., filed an appeal from a Court ruling in the lawsuit styled Selena Moorer, et al. v. Stemgenex Medical Group, Inc., et al., Case No. 3:16-cv-02816-AJB-NLS, in the U.S. District Court for the Southern District of California, San Diego. As previously reported in the Class Action Reporter, the class action lawsuit (assigned Case No. 37-02016-00028994-CU-NP-CTL) was removed from the Superior Court of California, County of San Diego, to the District Court. The Defendants operate a medical center in San Diego, California. The appellate case is captioned as Selena Moorer, et al. v. Stemgenex Medical Group, Inc., et al., Case No. 19-80083, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiffs-Respondents SELENA MOORER, JENNIFER BREWER, REBECCA KING and ALEXANDRA GARDNER, individually and on behalf of all others similarly situated, are represented by: Stephanie Reynolds, Esq. Timothy Garr Williams, Esq. POPE, BERGER, WILLIAMS & REYNOLDS, LLP 401 B Street, Suite 2000 San Diego, CA 92101 Telephone: (619) 595-1366 E-mail: reynolds@popeberger.com williams@popeberger.com Intervenor-Pending ANDRE P. LALLANDE is represented by: Matthew Levinson, Esq. COLE PEDROZA LLP 2295 Huntington Drive San Marino, CA 91108 Telephone: (626) 431-2787 E-mail: mlevinson@colepedroza.com Defendants-Petitioners STEMGENEX MEDICAL GROUP, INC., a California Corporation; STEMGENEX, INC., a California Corporation; RITA ALEXANDER, an individual; and STEM CELL RESEARCH CENTRE, INC., a California Corporation, are represented by: Christina Lucio , Esq. JAMES HAWKINS APLC 9880 Research Drive Irvine, CA 92618 Telephone: (909) 908-3059 E-mail: christina@jameshawkinsaplc.com SUMMIT APPAREL: Dawson Alleges Violation under Disabilities Act --------------------------------------------------------------- Summit Apparel, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Leshawn Dawson, on behalf of himself and all others similarly situated, Plaintiff v. Summit Apparel, Inc., Defendant, Case No. 1:19-cv-06613 (S.D. N.Y., July 16, 2019). Summit Apparel, Inc., doing business as Royal Apparel, manufactures knit apparel. The Company offers knitting, art design, heat transfer, embroidery, sewing, printing, welding, and cutting services. Royal Apparel operates in the United States.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal SUN COMMUNITIES: Asbury Seeks to Certify Mobile Homeowners Class ---------------------------------------------------------------- The Plaintiffs in the lawsuit styled Gene Asbury, James LeMonnier, Bonnie Lohmeyer, Fred Osier, Harry Rush, Laurie Skemp, and Royal Palm Village Residents, Inc., on behalf of themselves, the class of current and former mobile homeowners in the Park and all others similarly situated v. Monica Slider, Sheri Woodworth, Belinda Lawson, Sun Communities, Inc., Royal Palm Village, LLC, American Land Lease, Inc., Asset Investors Operating Partnership, L.P., Richard Lee, and Lutz, Bobo & Telfair, P.A., d/b/a Lutz, Bobo, Telfair, Eastman & Lee, f/k/a Lutz, Webb & Bobo, P.A., Case No. 8:19-cv-00874-CEH-SPF (M.D. Fla.), seek class certification under Rule 23 of the Federal Rules of Civil Procedure. The Plaintiffs' proposed class definition is: ". . . [A]ll persons who are or were mobile home owners in the Park from 2009 to the present and were victimized by the fraudulent and conspiratorial acts of Defendants Monica Slider, Sheri Woodworth, Belinda Lawson, Sun Communities, Royal Palm Village, American Land Lease, and Asset Investors Partnership since 2015 to illegally and unreasonably deceive over 400 elderly mobile home owners and the Royal Palm HOA that their mobile home park was lawfully purchased by the Defendants Sun Communities and Royal Palm Village. Subsequently, the Defendants Monica Slider, Sheri Woodworth, Belinda Lawson, Sun Communities, Royal Palm Village, American Land Lease, and Asset Investors Partnership acted and conspired to circumvent statutory regulations under the Florida Mobile Home Act and engaged in further deceit as alleged in the Background and Statement of Facts, supra. Gene Asbury, et al., also ask the Court that they should be permitted to circulate a class action notice to all putative class members. The Plaintiffs request that the Court order the Defendants to produce a complete and accurate list of all mobile homeowners (including contact information: names, address, e-mail, and phone number) who have owned a home in the Park during the ten years preceding this action up until the date this Court decides this Motion.[CC] The Plaintiffs are represented by: Daniel W. Perry, Esq. LAW OFFICE OF DANIEL W. PERRY 4767 New Broad St., #1007 Orlando, FL 32814-6405 Telephone: (407) 894-9003 E-mail: dan@danielperry.com SUNEDISON SEMICONDUCTOR: Dismissal of Usenko ERISA Suit Affirmed ---------------------------------------------------------------- In the case, Alexander Y. Usenko, Derivatively on Behalf of the SunEdison Semiconductor Ltd. Retirement Savings Plan, Plaintiff-Appellant v. MEMC LLC; The Investment Committee of the SunEdison Semiconductor Ltd. Retirement Savings Plan, Hemant Kapadia; Penny Cutrell; Steve Edens; Karen Steiner; Cheng Yang; Ben Llorico, Defendants-Appellees, John Does 1-10, Defendants, Case No. 18-1626 (8th Cir.), Judge Jane L. Kelly of the U.S. Court of Appeals for the Eighth Circuit affirmed the judgment of the district court dismissing Usenko's complaint, without leave to amend. Usenko is a former employee of SunEdison Semiconductor, LLC ("Semi"). Semi, once a wholly owned subsidiary of SunEdison, Inc., made a defined-contribution retirement savings plan available to its employees, including Usenko, that offered SunEdison stock as a retirement investment option. On April 21, 2016, SunEdison filed for bankruptcy. In August 2017, Usenko brought suit derivatively on behalf of the plan and, in the alternative, as a putative class action on behalf of plan participants. Usenko claims that Semi, the investment committee of Semi's retirement savings plan, and the members of the investment committee breached their fiduciary duties under the Employee Retirement Income Security Act of 1974 ("ERISA"). Usenko alleges that between July 20, 2015, and April 21, 2016, the Defendants knew or should have known that SunEdison was in poor financial condition and faced poor long-term prospects and therefore should have removed SunEdison stock from the plan's assets. The district court dismissed Usenko's complaint as to all the Defendants for failure to state a claim -- other than Penny Cutrell and Karen Steiner, who were dismissed for lack of timely service -- and denied Usenko leave to amend his complaint. Usenko appeals the dismissal for failure to state a claim and the denial of leave to amend. Judge Kelly finds that Usenko, like the Plaintiffs in Fifth Third Bancorp v. Dudenhoeffer, alleges that the Defendants breached their fiduciary duties because they failed to outperform the market based solely on their analysis of publicly available information and to conclude that, because SunEdison stock was excessively risky, the plan should divest from SunEdison. As explained by the Supreme Court in Dudenhoeffer, as well as several of the sister circuits examining similar claims, such allegations are insufficient to plausibly allege that ERISA fiduciaries breached the duty of prudence. Accordingly, Usenko fails to plausibly allege that the defendants breached the duty of prudence and dismissal for failure to state a claim is proper. Usenko's attempts to evade Dudenhoeffer are unavailing. The Judge rejects Usenko's argument that Tibble v. Edison International, saves his deficient duty-of-prudence allegations. The Supreme Court's acknowledgment in Tibble that an ERISA fiduciary has a continuing duty to monitor trust investments and remove imprudent ones, does not exempt Usenko's complaint from meeting Dudenhoeffer's pleading requirements. And Usenko cannot distinguish Dudenhoeffer on the basis that it only applies to duty-of-prudence claims in the context of employer securities. The Court in Dudenhoeffer explicitly rejected the contention that fiduciaries of employee stock ownership plans are entitled to a special presumption of prudence. As such, the Judge sees no indication that the Court intended to limit Dudenhoeffer to employer securities. Finally, the Judge will affirm the denial of Usenko's motion for leave to amend his complaint because he failed to submit a proposed amended complaint with his motion. Accordingly, Judge Kelly affirmed the judgment of the district court. A full-text copy of the Court's June 4, 2019 Order is available at https://is.gd/2pMvP9 from Leagle.com. Glenn Eugene Davis -- Glenndavislaw@aol.com -- for Defendant-Appellee. Don R. Lolli -- dlolli@DysartTaylor.com -- for Plaintiff-Appellant. Thomas James McKenna -- tjmckenna@gme-law.com -- for Plaintiff-Appellant. Mark Bruce Blocker -- MBLOCKER@SIDLEY.COM -- for Defendant-Appellee. Gregory Michael Egleston -- gegleston@gme-law.com -- for Plaintiff-Appellant. Chris K. Meyer -- CMEYER@SIDLEY.COM -- for Defendant-Appellee. Robert I. Harwood -- rharwood@hfesq.com -- for Plaintiff-Appellant. Daniella Quitt -- dquitt@hfesq.com -- for Plaintiff-Appellant. Charles Noah Insler -- cinsler@heplerbroom.com -- for Defendant-Appellee. Sarah A. Hemmendinger -- SHEMMENDINGER@SIDLEY.COM -- for Defendant-Appellee. THIRTY-ONE GIFTS: Dawson Alleges Violation under ADA ---------------------------------------------------- Thirty-One Gifts LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Leshawn Dawson, on behalf of himself and all others similarly situated, Plaintiff v. Thirty-One Gifts LLC, Defendant, Case No. 1:19-cv-06621 (S.D. N.Y., July 16, 2019). Thirty-One Gifts, LLC, is a direct-selling organization offering purses, wallets, totes, accessories, home decor and organizing solutions, thermal bags, jewelry most of which can be personalized, that are sold through Independent Sales Consultants in the U.S.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (929) 575-4175 Fax: (929) 575-4195 Email: joseph@cml.legal TRANS WORLD: Rovinelli Suit Goes to Massachusetts Federal Court --------------------------------------------------------------- The case, Adam Rovinelli and Jennifer Carlos, individually and on behalf of all other persons similarly situated, the Plaintiffs, vs. Trans World Entertainment Corporation, the Defendant, Case No. 1979cv00331, was removed from the Hampden County Superior Court to the U.S. District Court for the District of Massachusetts (Springfield) on June 12, 2019. The District of Massachusetts Court Clerk assigned Case No. 3:19-cv-11304-DPW to the proceeding. The suit seeks $5,000,000,000. The case is assigned to the Hon. Judge Douglas P. Woodlock. Trans World Entertainment Corporation is an American company which operates entertainment media retail stores across the United States of America. As of August 2018 it operated 240 freestanding and shopping mall-based stores under several brand names, down from about 540 in August 2010.[BN] Attorneys for the Plaintiffs are: Angela M. Edwards, Esq. LAW OFFICE OF ANGELA EDWARDS 72 Canterbury Circle East Longmeadow, MA 01028 Telephone: (413) 525-3820 E-mail: angelaedwards@charter.net - and - Mark J. Albano, Esq. ALBANO LAW, LLC One Monarch Place 1414 Main Street, Suite 1150 Springfield, MA 01144-1150 Telephone: (413) 736-6971 Facsimile: (413) 746-9224 E-mail: mark@albanolawllc.com Attorneys for Trans World Entertainment Corporation are: Christopher J. Marino, Esq. DAVIS, MALM & D'AGOSTINE, P.C. One Boston Place, 37th Floor Boston, MA 02108 Telephone: (617) 589-3833 Facsimile: (617) 305-3114 E-mail: cmarino@davismalm.com TREVENA INC: Block & Leviton Named Lead Counsel in Securities Suit ------------------------------------------------------------------ In the case, DR. WILLIAM TOMASZEWSKI, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. TREVENA, INC., MAXINE GOWEN and ROBERTO CUCA, Defendants, Civil Action No. 18-4378 (E.D. Pa.), Judge Cynthia M. Rufe of the U.S. District Court for the Eastern District of Pennsylvania appointed Trevena Group as the Lead Plaintiff for the class, and approved its selection of Block & Leviton LLP as its choice of Lead Counsel and Kaufman Coren & Ress, P.C. as Liaison Counsel. The case is a federal securities class action brought on behalf of investors against Trevena and its former executives for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended by the Private Securities Litigation Reform Act of 1995 ("PSLRA"), and Rule 10b-5 promulgated thereunder. Trevena is a clinical stage biopharmaceutical company that discovers, develops, and seeks to commercialize therapeutics by utilizing a novel approach to treating moderate to severe acute pain intravenously. Trevena allegedly issued a press release on May 2, 2016, announcing that it had reached a general agreement with the FDA on key elements of its clinical development program for one of its products, Olinvo (oliceridine). Based on those statements and omissions as to the strength of the program, the design of its Phase III trial, and its prospects for obtaining FDA approval, the price of Trevena's stock began to increase. On Oct. 9, 2018, however, two days before the FDA would meet with Trevena to determine whether Olinvo would be granted approval, the FDA publicized a briefing document which contained minutes from its 2016 meeting with Trevena that it previously criticized the design of the Phase III trial and that the FDA's Advisory Committee was recommending rejection of Olinvo's new drug application. As a result, the price of Trevena's stock dropped 64% by the time the market closed on October 9. The Plaintiffs are comprised of investors who purchased Trevena common stock between May 2, 2016 and Oct. 8, 2018. As a Lead Plaintiff and a Lead Counsel must be appointed pursuant to 15 U.S.C. Section 78u-4, Plaintiffs Huseyin Erenoglu, a group of five individual members ("Trevena Group"), and Lanphie Ping have each moved for such appointment and for approval of their choice of lead counsel. The Court has previously consolidated the three separate lawsuits against Trevena and its former executives, and now must decide whether Erenoglu, Trevena Group, or Ping will serve as the Lead Plaintiff. A hearing was held on Feb. 20, 2019, after which the Court required Erenoglu to produce his trade confirmations from the Class Period to the Court and to the other Moving Plaintiffs, and permitted further briefing upon receipt of the trade confirmations. As the investor with the largest financial loss, Erenoglu asserts that his similar interests with those of the class in recovering a maximum amount of damages, his lack of conflict in his adequacy to represent the class, and his choice of counsel render him the prevailing Lead Plaintiff. The other Moving Plaintiffs argue that there are errors in Erenoglu's sworn certifications and declarations when compared to his trade confirmations, and that although Erenoglu's certification and declaration accurately reflect the number of shares purchased and sold, they do not accurately reflect the number of trades and the price per share. Judge Rufe agrees with the other Moving Plaintiffs that the errors in Erenoglu's sworn statements amount to a substantial degree of carelessness and raise doubt as to whether he will fairly and adequately represent the best interests of the class. Sworn declarations are integral to the PSLRA process, as they assure district courts that the proposed Plaintiff (1) has suffered financial harm; (2) is not a serial litigant; and (3) is interested and able to serve as the Lead Plaintiff. Although Erenoglu submits that his errors are minor or inadvertent mistakes in absolute terms, they nonetheless speak to a level of carelessness especially where the errors were repeated. Particularly given that these errors were made at the outset of the case, the causes the Court to doubt whether Erenoglu possesses the necessary adequacy and sophistication to be the Lead Plaintiff. Trevena Group comprises five individuals who lost a substantial amount of monetary funds, and who have indicated a willingness to serve the role of lead plaintiff. Because the PSLRA expressly permits groups to serve as the Lead Plaintiff, Trevena Group argues that it is entitled to do so in the case. Trevena Group has selected Block & Leviton to serve as the Lead Counsel, and Kaufman Coren & Ress, P.C. to serve as the Liaison Counsel, both with sufficient experience in securities litigation. The other Moving Plaintiffs attempt to rebut Trevena Group's presumptive lead plaintiff status by contending that the group is too large, and that the lack of knowledge as to its members' pre-existing relationships raises doubt in terms of whether Trevena Group is lawyer-driven or whether its members can function cohesively and collectively as a group. The Judge finds that the other Moving Plaintiffs have produced no evidence, as opposed to merely speculation, that Trevena Group would not be able to function as a cohesive and independent group, or that it will not able to fairly and adequately protect the interests of the class. Having reviewed the submissions from Trevena Group as to its selection of Block & Leviton LLP as its choice of lead counsel and Kaufman Coren & Ress, P.C. as liaison counsel, the Judge finds that there is no basis to interfere with the strong presumption in favor of approving counsel. Both of these law firms have extensive and substantial experience in class action securities litigation, as reflected in their firm biographies which highlight their numerous successful prosecutions of such cases. Accordingly, she approves Trevena Group's selection of counsel. For the foregoing reasons, Judge Rufe appointed Trevena Group as the Lead Plaintiff for the class, and approved its selection of Block & Leviton LLP as its choice of Lead Counsel and Kaufman Coren & Ress, P.C. as Liaison Counsel. An appropriate order follows. A full-text copy of the Court's May 29, 2019 Memorandum Opinion is available at https://is.gd/X9x3rb from Leagle.com. TREVENA GROUP, COMPRISED OF ALBERT KOCH, WHITTIER PIERCE, CHRISTOPHER BEYERS, KEVIN WALSH AND PETER PALMER, Lead Plaintiff, represented by DEBORAH R. GROSS -- dgross@kcr-law.com -- KAUFMAN, COREN & RESS, PC, JACOB A. WALKER -- jake@blockesq.com -- BLOCK & LEVITON LLP & JEFFREY C. BLOCK -- jeff@blockesq.com -- BLOCK & LEVITON LLP. DR. WILLIAM TOMASZEWSKI, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by DEBORAH R. GROSS, KAUFMAN, COREN & RESS, PC, LAURENCE J. HASSON, BERNSTEIN LIEBHARD LLP, CHRISTOPHER L. NELSON, THE WEISER LAW FIRM, P.C., DAVID SEAMUS KASKELA , KASKELA LAW LLC, JACOB A. GOLDBERG, THE ROSEN LAW FIRM, MICHAEL J. HYNES, HYNES KELLER & HERNANDEZ & PHILLIP C. KIM, THE ROSEN LAW FIRM, PA. TREVENA, INC., Defendant, represented by ANDREW W. STERN -- ASTERN@SIDLEY.COM -- SIDLEY AUSTIN LLP, CHARLOTTE K. NEWELL -- CNEWELL@SIDLEY.COM -- SIDLEY AUSTIN LLP, HILLE R. SHEPPARD -- HSHEPPARD@SIDLEY.COM -- SIDLEY AUSTIN LLP, JACOB A. WALKER, BLOCK & LEVITON LLP & JEFFREY C. BLOCK, BLOCK & LEVITON LLP. MAXINE GOWEN & ROBERTO CUCA, Defendants, represented by ANDREW W. STERN, SIDLEY AUSTIN LLP, CHARLOTTE K. NEWELL, SIDLEY AUSTIN LLP & HILLE R. SHEPPARD, SIDLEY AUSTIN LLP. DAVID A. LEWEIN, Movant, represented by JONATHAN F. NEUMANN, KESSLER TOPAZ MELTZER & CHECK & NAUMON A. AMJED, KESSLER TOPAZ MELTZER & CHECK, LLP. UNITED FEDERAL: Settlement in Gunter Suit Has Final Approval ------------------------------------------------------------ In the case, TONYA GUNTER, individually, and on behalf of all others similarly situated, Plaintiff, v. UNITED FEDERAL CREDIT UNION, DOES 1-5, inclusive, and ROE CORPORATIONS 6-10 inclusive, Defendants, Case No. 3:15-cv-00483-MMD-WGC (D. Nev.), Judge Miranda M. Du of the U.S. District Court for the District of Nevada granted final approval of the Settlement Agreement and Release. The Court granted preliminary approval of the Settlement on Feb. 14, 2019. It previously found on Sept. 25, 2017, on a contested motion for class certification, that the Classes meet all of the requirements for certification under the Federal Rules of Civil Procedure and applicable case law and certified the following classes: a. Sufficient Funds class, which is comprised of those members of the Defendant whose accounts were on the Miser System, and who received an overdraft fee on a transaction which resulted in a positive ledger balance between Oct. 3, 2011 and Sept. 30, 2018. b. The Regulation E class, which is comprised of those members of the Defendant who opted in to the overdraft program, whose accounts were on the Miser System, and who were charged an overdraft fee on a debit transaction between Aug. 15, 2010 and Sept. 30, 2018. However, for purposes of the proposed settlement and the release which the Defendant is to receive from the settlement and for purposes of final approval, for the "Regulation E" class, the release and class definition are narrowed only to include Oct. 3, 2011 through Sept. 30, 2018. No Regulation E claims prior to Oct. 3, 2011, are being released. Judge Du (i) appointed Named Plaintiff Tonya Gunter as the Class Representative; (ii) approved Richard McCune of McCune Wright Arevalo LLP and Taras Kick of The Kick Law Firm, APC, as the Class Counsel; and (iii) appointed Kurtzman Carson Consultants, LLC ("KCC") as the Claims Administrator. The Judge overruled the objection of the single objector Timothy Walker as the objection itself does not specify any way in which the class relief is inadequate, and does not suggest a higher monetary number for which the case should have settled. She granted final approval of the terms set forth in the Settlement and finds that the Settlement is, in all respects, fair, adequate, and reasonable, and directs the parties to effectuate the Settlement according to its terms. The Judge finds the requested attorneys' fees of $833,000 to be reasonable. The requested fees are approved and this amount to be paid to the Class Counsel from the Settlement Fund by the deadline specified in the Settlement. She further finds that the request for reimbursement of litigation costs in the amount of $86,500, as set forth and detailed in the declarations of the Class Counsel, is reasonable based on the work necessary to achieve this favorable class settlement, and is to be paid to the Class Counsel from the Settlement Fund by the deadline specified in the Settlement Agreement. The Judge also finds that Named Plaintiff Tonya Gunter assisted with the prosecution and litigation of the case, including producing documents, responding to written discovery, sitting for deposition, and having been willing to testify at trial. She therefore awarded a service award in the amount of $10,000 to be paid to Named Plaintiff Tonya Gunter from the Settlement Fund by the deadline specified in the Settlement Agreement. She approved Public Citizen as the cy pres recipient of any residue in the Settlement Fund. She also approved payment of the Claims Administrator's fees and costs of up to $70,000 to be paid to the Claims Administrator from the Settlement Fund by the deadline specified in the Settlement Agreement. Within 10 days of the date of this order, Defendant United Federal Credit Union will distribute the Settlement Fund to the Claims Administrator, less amounts advanced to the Claims Administrator and less the total amount that will be credited to the Class Members by the Defendant as provided in the Settlement Agreement. A full-text copy of the Court's June 4, 2019 Order is available at https://is.gd/uGjfol from Leagle.com. Tonya Gunter, individually, and on behalf of all others similarly situated, Plaintiff, represented by Jae Eddie K. Kim -- jkk@mccunewright.com -- McCune Wright Arevalo LLP, pro hac vice, James Strenio -- James@kicklawfirm.com -- The Kick Law Firm, APC, Richard D. McCune- rdm@mccunewright.com -- McCune Wright Arevalo LLP, pro hac vice, Robert James Dart -- robert@kicklawfirm.com -- The Kick Law Firm, APC, Taras Kick -- Taras@kicklawfirm.com -- pro hac vice, Thomas A. Segal -- Thomas@kicklawfirm.com -- The Kick Law Firm, APC, pro hac vice & Gregory G. Gordon, Glen Lerner Injury Attorneys. United Federal Credit Union, Defendant, represented by James A. Kohl, Howard & Howard Attorneys, PLLC, Robert W. Hernquist, Howard & Howard Attorneys PLLC, Stephen Paul Dunn, Howard & Howard Attorneys PLLC, pro hac vice & Brandon J. Wilson, Howard & Howard. UNITED STATES: Court Defers Ruling in Banos Final Order Relief Bid ------------------------------------------------------------------- In the case, ARTURO MARTINEZ BAÑOS, et al., Plaintiffs-Petitioners, v. ELIZABETH GODFREY, et al., Defendants-Respondents, Case No. C16-1454 JLR (W.D. Wash.), Judge James L. Robart of the U.S. District Court for the Western District of Washington, Seattle, deferred ruling on Defendants-Respondents Elizabeth Godfrey, Lowell Clark, Thomas D. Homan, James McHenry, William Barr, and Kevin McAleenan ("Government")'s Federal Rule of Civil Procedure 60 motion for relief from the Court's final order. On Sept. 14, 2016, the Petitioners filed a habeas corpus petition and class action complaint on behalf of themselves and other similarly-situated detained noncitizens in withholding of removal only proceedings under 8 C.F.R. Section 1208.31(e), challenging the Government's refusal to provide them with custody redetermination hearings. On Dec. 11, 2017, the Court certified a class comprising of all individuals who (1) were placed in withholding only proceedings under 8 C.F.R. Section 1208.31(e) in the Western District of Washington after having a removal order reinstated, and (2) have been detained for 180 days (a) without a custody hearing or (b) since receiving a custody hearing. On Jan. 23, 2018, Magistrate Judge Brian A. Tsuchida issued a report and recommendation concluding that the Plaintiffs were entitled to summary judgment on their statutory claim that the Immigration and Nationality Act ("INA") provides class members with custody redetermination hearings before an immigration judge after six months of detention. A proposed order, declaring that the Government violated 8 U.S.C. Section 1231(a)(6) by failing to provide custody hearings to class members, accompanied the report and recommendation. The proposed order required the Government to (1) provide custody hearings to each class member as soon as the individual's detention reaches 180 days; (2) provide periodic custody hearings to the class members at every 180-day mark of their detention; (3) provide simultaneous notice of the class members' custody hearings to both the class members and the class counsel; and (4) notify the class members in the event the Government determines that an individual is not a class member even though the individual meets the criteria outlined by the class definition. The proposed order did not contain an end date or time limit for these requirements. On Feb. 7, 2018, the Government filed its objections to the report and recommendation but did not object to any specific aspect of the proposed order. On April 4, 2018, the Court adopted the Jan. 23, 2018, report and recommendation "in its entirety," including the proposed order. The parties filed a stipulated motion to extend to the deadlines for the Government to begin conducting bond hearings pursuant to the order, which the court granted. Since May 23, 2018, the Government has emailed the class counsel once a week notifying the class counsel of the bond hearings provided to the class members, if any, pursuant to the court's order. There is no allegation that the Government has not fully complied with the Court's April 4, 2018, order. On May 30, 2018, the Government appealed the Court's judgment to the Ninth Circuit Court of Appeals. The Government now seeks relief from the Court under Rule 60 from the reporting requirements under paragraphs 13 and 14 of its final order. Judge Robart finds that the Government fails to demonstrate that termination should occur prior to the completion of its Ninth Circuit appeal. Indeed, the Government provided no evidence to support its allegations of "exceptional burden" when it initially filed its motion. The descriptions in its declarations do not support the conclusion that the final order's reporting requirements create an undue or excessive burden. DOJ refers to itself as "the world's largest law office, employing more than 10,000 attorneys nationwide." Given these vast DOJ resources, the Judge declines to find that the minimal resources that the Government devotes to the final order's reporting requirements are unduly burdensome. As a result, he declines the Government's invitation to alter the injunction while the Government's appeal is pending. Instead, he defers until the Government's appeal is complete. Following the Ninth Circuit's ruling or other termination of the Government's appeal, the Government may renote its motion for the Court's consideration if appropriate at that time. Based on the foregoing analysis, Judge Robart deferred ruling on the Government's motion. He further directed the clerk to terminate the motion. Following completion of the Government's appeal, the Government may renote its motion for the Court's consideration if appropriate at that time. A full-text copy of the Court's June 4, 2019 Order is available at https://is.gd/SJvjre from Leagle.com. Edwin Flores Tejada & German Ventura Hernandez, on behalf of themselves as individuals and on behalf of others similarly situated, Petitioners, represented by Matt Adams, NORTHWEST IMMIGRANT RIGHTS PROJECT, Glenda Melinda Aldana Madrid, NORTHWEST IMMIGRANT RIGHTS PROJECT & Leila Kang, NORTHWEST IMMIGRANT RIGHTS PROJECT. Nathalie Asher, Field Office Director, Thomas D Homan, Acting Director of U.S. Immigration and Customs Enforcement, John F Kelly, Secretary of the Department of Homeland Security; Lowell Clark, Warden, James McHenry, Director of Executive Office for Immigration Review & Jefferson B. Sessions, Acting Attorney General of the United States, Respondents, represented by Gladys M. Steffens Guzman, DEPARTMENT OF JUSTICE CIVIL DIVISION & Sairah G. Saeed, US DEPT. OF JUSTICE OFFICE OF IMMIGRATION LITIGATION. UNITED STATES: Lohmann Sues Over Unlawful Denial of Per Diem ------------------------------------------------------------ PAUL LOHMANNN, DAVID CARPENTER, JOE DUCKWORTH, JOSEPH FIELDS, MIGUEL A. LOPEZ, NANCY PATRICK, MILES SAMUEL, THOMAS VAUGHN, MARIO VILLEGAS, and MARK WILLIFORD on behalf of themselves and all other individuals similarly situated, Plaintiffs v. THE UNITED STATES OF AMERICA, Defendant, Case No. 1:19-cv-00994-LAS filed on July 11, 2019 in the U.S. Court of Federal Claims, is a case arising from the unlawful decision of the United States Department of the Army to deny a significant subset of its Soldiers their authorized meals and lodging reimbursement (hereinafter "per diem") (Travel and Transportation Allowances). Plaintiffs were all released from active duty and ordered to return to their home of record (HOR) at the conclusion of every temporary tour of duty. All of the Plaintiffs served on Temporary Change of Station (hereinafter "TCS") orders that authorized them per diem at a rate of 55% of the locality rate. Plaintiffs submitted claims for per diem payment and such claims were wrongfully denied. The Army based its denial of Plaintiffs' per diem on a rule erroneously propounded in an Army Audit Agency report that required that Soldiers must have a multi-day break (sometimes claimed to be 30-days other times claimed to be 90-days) between two duty assignments at the same installation, even where that installation was not the Soldier's HOR, in order to be authorized per diem. This rule had no statutory or regulatory basis—in fact, it was in direct contravention to applicable statute and regulation. This denial forced hundreds of RC soldiers to maintain two households with only one entitlement, i.e.: 1) their homes from which they were activated and to which they returned annually when they were released from active duty; and 2) their residence where they were assigned on temporary active duty. The Army's unlawful denial of per diem entitlements amounts to thousands of dollars improperly refused to each of these Soldiers, in fact exceeding six figures for most, says the complaint. Plaintiffs were all reserve component (hereinafter "RC") Soldiers who were temporarily mobilized from the RC to active duty and assigned to Fort Hood, Texas for multiple, temporary tours of duty between fiscal years (hereinafter "FY") 2014 and 2017. Defendant is the United States of America, acting by and through the Department of the Army and IMCOM, both of which are United States Government Agencies.[BN] The Plaintiffs are represented by: Michael E. Silverman, Esq. HAFEMANN, MAGEE & THOMAS, LLC 21 W. Park Avenue Savannah, Georgia 31401 Phone: (912) 221-4441 Email: mike@hhm.law - and - Jeremy S. McKenzie, Esq. C. Dorian Britt, Esq. KARSMAN, MCKENZIE & HART 21 W. Park Avenue Savannah, GA 31401 Phone: (912) 335-4977 Email: Jeremy@kmtrial.com Dorian@kmtrial.com VILLAS PAPILLON: Class Certification Order in Fernandez Vacated --------------------------------------------------------------- In the case, VICTOR FERNANDEZ et al., Plaintiffs and Respondents, v. VILLAS PAPILLON, LLC, Defendant and Appellant, Case No. A151765 (Cal. App.), Judge Sandra Margulies of the Court of Appeals of California for the First District, Division One, vacated the trial court's judgment, including the order voiding the release agreements, and the class certification order. Plaintiffs Fernandez and Aburas filed a putative class action complaint on behalf of current and former tenants against Villas Papillon, alleging unlawful rent increases. Villas Papillon is the owner of a residential apartment complex located in Fremont, California. In 1997, the City of Fremont enacted a "Residential Rent Increase Dispute Resolution Ordinance" (ordinance), which requires landlords to comply with certain notice requirements when imposing rent increases. Since enactment of the ordinance, Villas Papillon has increased rents by issuing notices of change of terms to its tenants (rent increase notices). The parties do not appear to dispute the rent increase notices omitted certain language required by the ordinance. In 2013, the Plaintiffs filed a class action complaint alleging Villas Papillon collected unlawful rent increases from its tenants. After the complaint was filed, Villas Papillon presented release agreements to its tenants. The release agreements provided a rent reduction and one-time rent concession in full and final settlement of any and all claims by the Tenant against the Landlord relating to the Notices of Change of Terms and any issues associated with the Notice of Change of Terms. The release agreements also contained a broad release, which released Villas Papillon from any and all actions, causes of actions, claims, demands, rights, injuries, debts, obligations, liabilities, contracts, duties, damages, costs, attorneys' fees, expenses or losses of every kind, nature, character, or description whatsoever, that accrued at any time prior to execution of the Agreement, whether known or unknown, anticipated or unanticipated. Additionally, the release agreements contained a Civil Code section 1542 waiver of unknown claims. Of approximately 61 households, 47 executed release agreements. The Plaintiffs, however, did not execute release agreements. The Plaintiffs subsequently filed an amended class action complaint. In addition to the allegations contained in the original complaint, the amended complaint asserted Villas Papillon attempted to enforce the illegal rent increases by offering to return portions of those illegal rent increases via the release agreements, and that Villas Papillon separately violated the ordinance by doing so. In 2014, the Plaintiffs filed their motion for class certification. Villas Papillon opposed the motion, arguing in part the proposed class is not "sufficiently numerous," and the Plaintiffs could not establish a community of interest. Specifically, Villas Papillon argued tenants who signed a release agreement would have distinct factual and legal issues -- namely, the enforceability of those release agreements -- from the Plaintiffs who did not sign such agreements. The trial court continued the hearing for class certification in order to solicit additional briefing as to whether the validity of the release agreements raised common legal and factual issues. Following supplemental briefing, the trial court subsequently granted in part the motion for class certification. It restated its prior holding, including its conclusion that the Plaintiffs' claims were typical of the class. The court found the validity of the release agreements could be tried on a class basis, apart from the Plaintiffs' theory that the release agreements were unconscionable. The parties submitted a stipulation to bifurcate trial, which was granted by the court. Pursuant to that stipulation, the enforceability of the release agreements was tried in the first phase. Following a bench trial, the court held the release agreements constituted a rent increase as defined in the ordinance, and the release agreements did not have a lawful object and violated public policy. Phase II subsequently awarded damages to the class members. The court entered judgment in favor of the Plaintiffs and the class. Villas Papillon timely appealed. It asserts the trial court erroneously certified the class because the Plaintiffs cannot demonstrate their claims or defenses are typical of the class. Judge Margulies agrees. She opines that the Plaintiffs fail to demonstrate their claims are typical of the class and thus have not established such claims are appropriate for class treatment. On remand, the trial court should consider how the Plaintiffs' lack of typicality impacts the class certification analysis, particularly the question of numerosity. The Judge further notes at oral argument the Plaintiffs' counsel represented that only three of the 14 tenants who did not sign release agreements still reside at the premises. While no set number is required as a matter of law for the maintenance of a class action, the trial court should consider the size of the class as well as the nature of the action, the size of the individual claims, the inconvenience of trying individual suits, and any other factor relevant to the practicability of joining all the putative class members. The Plaintiffs request an order directing the trial court to grant leave to amend to add new class representatives. In response, Villas Papillon argues the Plaintiffs should not be allowed to amend because they are misusing discovery to locate a new class representative, there is no evidence a releasor would want to serve in such a capacity, and the statute of limitations has run on such claims. The Judge declines to resolve this dispute. Leave to amend a complaint is entrusted to the sound discretion of the trial court. More importantly, the discretion to be exercised is that of the trial court, not that of the reviewing court. Accordingly, the trial court should determine in the first instance whether the circumstances of the case warrant granting the Plaintiffs leave to amend. For these reasons, Judge Margulies vacated the judgment of the trial court, including the order voiding the release agreements, and the order granting class certification. She remanded the matter for the trial court to reconsider the Plaintiffs' request for leave to amend and their motion for class certification consistent with the Opinion. Villas Papillon may recover its costs on appeal. A full-text copy of the Court's May 29, 2019 Opinion is available at https://is.gd/b1CWf3 from Leagle.com. WAL-MART: Alston, et al. Sue for Equal Pay for Female Staff ----------------------------------------------------------- A class action lawsuit has been filed against Wal-Mart Stores, Inc. alleging that the retailer has engaged in, and continues to engage in, unlawful gender discrimination by denying female employees equal pay for hourly retail store positions and denying female employees equal pay for certain salaried management positions. The case is an action under Title VII of the Civil Rights Act of 1964, seeking to correct unlawful employment practices that discriminate on the basis of gender and to provide appropriate relief to female employees who were adversely affected by such practices. The action springs from Dukes v. Wal-Mart, the national class action filed more than 10 years ago. In Dukes, the United States District Court for the Northern District of California certified a national class of female Wal-Mart and Sam's Club employees challenging Wal-Mart's retail store pay policies as discriminatory against women. On June 20, 2011, the United States Supreme Court reversed that class certification order, imposing new guidelines for class actions in Title VII employment discrimination cases. All damages which the Plaintiffs have sustained as a result of Wal-Mart's conduct, including back pay, front pay, compensatory damages, and damages for lost compensation and job benefits that they would have received but for the discriminatory practices of Wal-Mart, the lawsuit says. Wal-Mart is an American multinational retail corporation that operates a chain of hypermarkets, discount department stores, and grocery stores, headquartered in Bentonville, Arkansas. The case is captioned JEWEL PRICE, CARLA ALSTON, KIMBERLY AUSTIN-JOHNSON, NANCY BAISDEN, CYNTHIA BOSS, BILLIE BRENDLINGER, LATONYA BRISCO-THOMPSON, MYRA BROWN, TONI BURTON, RENEE CHILES, MARY-KAY DOBBS, MARYELLEN DUNNE, LIOUDMILA DYER, FAWN EHRENREICH, RHONDA GALLIPOLI, CONNIE GAMARRA, ZOMORA GRANT, MARGARET HAMMELL, DEBORAH HOLLOWAY, CAROLYN HOLMES, CATHERINE JACOBSON, SUSAN JEFFERS, LUCILLE KLINE, FRANCES LIVINGSTON, CINDY LYMAN, GLORIA MAIMONE, IRIS CASSETT MARCHAND, TANISHA MATTHEWS-WRIGHT, TAMIKO MCNURLAN, LYNN MILLER, MARGO OWENS-WOOTEN, PAMELA PECK, LUCY GIACOBBI SOTOMAYOR RAY, RACHEL RAY, CATHY REUSS, SHERRY RICHARDSON, BARBARA SOLOMON, ANGEL STUMP-WOLFE, BARBARA SYMANSKI, RONDA THOMSON-SPEARS, MONICA URBAN-KLOHN, TIFFANY WELCH, DONNA WILLIAMS, and COLLEEN WOOL, the Plaintiffs, vs. WAL-MART STORES, INC., the Defendant, Case No. 9:19-cv-80923-RNS (S.D. Fla., July 15, 2019).[BN] Attorneys for the Plaintiffs are: Cathleen Scott, Esq. Lindsey Wagner, Esq. SCOTT WAGNER AND ASSOCIATES, P.A. Jupiter Gardens 250 South Central Boulevard, Suite 104 Jupiter, FL 33458 Telephone: (561) 653-0008 Facsimile: (561) 653-0020 E-mail: Cscott@scottwagnerlaw.com lwagner@scottwagnerlaw.com - and - Leslie M. Kroeger, Esq. Diana L. Martin, Esq. Joseph M. Sellers, Esq. Christine E. Webber, Esq. COHEN MILSTEIN SELLERS & TOLL, PLLC 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Telephone: (561) 515-1400 Facsimile: (561) 515-1401 E-mail: lkroeger@cohenmilstein.com dmartin@cohenmilstein.com JSellers@cohenmilstein.com Cwebber@cohenmilstein.com WELLS FARGO: Loughran Moves to Certify Classes and Subclasses ------------------------------------------------------------- The Plaintiffs move the Court to enter an order certifying the lawsuit styled DANIEL LOUGHRAN & MARGARET LOUGHRAN, On their own behalf and on behalf Of all others similarly situated v. WELLS FARGO & COMPANY, WELLS FARGO BANK, N.A. d/b/a WELLS FARGO HOME MORTGAGE, MCCALLA RAYMER LIEBERT PIERCE, LLC, Individually and as Successor in interest to Pierce & Associates, PIERCE & ASSOCIATES, P.C., MAYER BROWN LLP, John Does 1-100, Case No. 1:19-cv-04023 (N.D. Ill.), as a class action pursuant to Rule 23(a) and (b) of the Federal Rules of Civil Procedure. The classes are defined as: 1. Foreclosure Class: All Consumer Homeowners in the United States who, (i) after implementation of HAMP, (ii) were sued in a judicial foreclosure action (iii) by Plaintiffs identified in caption as "Trustee" for Wells Fargo Asset Securities Corporation Mortgage Pass-Through Certificates, or a Pooling and Servicing Agreement for any Wells Fargo [Asset Securities Corporation] Mortgage-backed securities Trust, (iv) where the "Trustee" was not also the "Custodian," and (v) Wells Fargo was the "Custodian," (vi) Wells Fargo was Originator or Seller or Depositor or Guarantor or Sponsor or Securitization Trustee or Securities Underwriter for the Trust, and (vi) Wells Fargo had a right to "repurchase" the underlying promissory notes at any specified time after a foreclosure action was filed, including but not limited to a potential sub-class of cases in which (vii) Wells Fargo's foreclosure attorneys filed with the courts affidavits falsely claiming that the "Trustee" had possession of the original promissory note and/or filed with the courts or local county land records (Recorders') offices "assignments of mortgage" that failed to assign the promissory note, and/or (viii) were subjected to the same conduct ("predicate acts" of mail fraud and wire fraud) of the Enterprise described in the Amended Complaint at Paragraphs 508-509 and Counts VI & VII; * Illinois Foreclosure Subclass: All individuals in the Foreclosure Class who reside in the State of Illinois; 2. HAMP Class: All Consumer Homeowners in the United States who, (i) after implementation of HAMP, (ii) applied for a HAMP affordable modification through Wells Fargo Bank or Wells Fargo Home Mortgage ("Wells Fargo"); (iii) who were told by Wells Fargo that Wells Fargo serviced the Consumer Homeowners' loan for "your investor" or something conveying the same idea (the homeowners' investor); (iv) for the "Trustee" for "WFMBS" or "Wells Fargo Asset Securities Corporation" or a trust created by Wells Fargo as Depositor or Originator or similar; (v) with any series of certificates; and (iv) who were told they were denied a HAMP modification because Wells Fargo does not have contractual authority to modify the loan due to limitations in Wells Fargo's servicing agreement * Illinois HAMP Subclass: All individuals in the HAMP Class who reside in the State of Illinois; and 3. "Software Error" Class: All Consumers who (i) were identified by Wells Fargo in August, 2018, (ii) as having been improperly denied a HAMP modification and/or improperly foreclosed on and/or lost their homes (iii) because of the so-called "software error" and (iv) were sent a check for any monetary amount based on having been so identified; and * Illinois "Software Error" Subclass: All individuals in the "Software Error" Class who reside in the State of Illinois. These people are excluded from the Classes: (1) any Judge or Magistrate presiding over this action and members of their families; (2) Defendants, Defendants' subsidiaries, parents, successors, predecessors, and any entity in which the Defendant or its parents have a controlling interest and its current or former employees, officers and directors; (3) persons who properly execute and file a timely request for exclusion from the Classes; (4) persons whose claims in this matter have been finally adjudicated on the merits or otherwise released (other than those who may have signed a release based on "software error" and/or are members of "Software Error" Class); (5) Plaintiff's counsel and Defendant's counsel; and (6) the legal representatives, successors, and assigns of any excluded persons. Daniel Loughran and Margaret Loughran also ask the Court to appoint them as representative of the Class and to appoint their counsel as class counsel.[CC] The Plaintiffs are represented by: John Smith, Esq. LAW OFFICE OF JOHN SMITH 5062 Rockrose Court, Suite 4 Roscoe, IL 61073 Telephone: (815) 552-0031 E-mail: john@johnsmithlawyer.com WISCONSIN: 8th Amendment & Due Process Claims in King May Proceed ----------------------------------------------------------------- In the case, CARLOS KING, THADDEUS KAROW, JAMES PRICE, CRAIG ALAN SUSSEK, and VICTORIANO HEREDIA, on behalf of themselves and all others similarly situated, Plaintiffs, v. STEVEN LANDREMAN, Acting Chairperson and Commissioner of the Wisconsin Parole Commission; DANIELLE LACOST, Commissioner of the Wisconsin Parole Commission; DOUGLAS DRANKIEWICZ, Commissioner of the Wisconsin Parole Commission, KEVIN CARR, Secretary-Designee of the Wisconsin Department of Corrections; and MARK HEISE, Director of the Bureau of Classification and Movement, in their official capacities, Defendants, Case No. 19-cv-338-jdp (W.D. Wis.), Judge James D. Peterson of the U.S. District Court for the Western District of Wisconsin granted the Plaintiffs leave to proceed on their Eighth Amendment and due process claims. Plaintiffs King, Karow, Price, Sussek, and Heredia have filed a proposed class action on behalf of themselves and other similarly situated Wisconsin prisoners who committed crimes as juveniles and were sentenced to life in prison before 2000. The Plaintiffs allege that they have all reached their parole eligibility date, but state officials have denied them a meaningful opportunity to obtain release, in violation of their right to due process under the Fourteenth Amendment, their right to be free from cruel and unusual punishment under the Eighth Amendment, and their right to a jury trial under the Sixth Amendment. They allege that the Defendants are Wisconsin officials who have input into parole decisions and procedures. Because the Plaintiffs are prisoners, Judge Peterson must screen the complaint to determine whether it states a claim upon which relief may be granted. He will allow them to proceed on claims under the Eighth Amendment and Fourteenth Amendment. But the Plaintiffs must more fully explain the basis for their claim under the Sixth Amendment. As a threshold matter, the Judge finds that it does not appear that the Plaintiffs' claims are barred by the rule in Heck v. Humphrey, 512 U.S. 477, which prohibits prisoners from challenging the validity of their confinement in the context of a federal civil action. In the case, the Plaintiffs are seeking to be reevaluated for parole consideration under different criteria, which is not barred by Heck. The Plaintiffs' Eighth Amendment claim relies on Montgomery v. Louisiana, Miller v. Alabama, and Graham v. Florida, which, taken together, hold that it is cruel and unusual under most circumstances to impose a sentence of life imprisonment without the possibility of parole on those who were under the age of 18 at the time they committed their crimes. They cite the statement in Graham that the state must provide "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation," and they allege that the Defendants have failed to provide that meaningful opportunity by failing to consider the factors required by the Supreme Court. That is sufficient to state a claim under the Eighth Amendment, the Judge finds. The Plaintiffs' due process claim relies on the same case law. Although the Supreme Court has held that the Due Process Clause does not apply to discretionary parole decisions, the Plaintiffs contend that the Supreme Court has narrowed the Defendants' discretion by requiring them to provide a meaningful opportunity for them to obtain release if they have demonstrated maturity and rehabilitation. Other courts have accepted that contention. Because the Plaintiffs allege that Wisconsin's procedures do not provide them a meaningful opportunity to make the necessary showing, the Judge concludes that the Plaintiffs have stated a plausible claim under the Due Process Clause. The Plaintiffs' claim under the Sixth Amendment relies on a line of cases beginning with Apprendi v. New Jersey. Those cases stand for the proposition that the Sixth Amendment reserves to juries the determination of any fact, other than the fact of a prior conviction, that increases a criminal defendant's maximum potential sentence. The Plaintiffs allege that the Defendants have denied them parole based on facts about their crimes that were not found by a jury or established by a guilty plea. But all of the cases the Plaintiffs cite are challenges to a prisoner's sentence, not to a parole decision. Accordingly, the Judge will direct the Plaintiffs to show cause why their claim under the Sixth Amendment should not be dismissed for failure to state a claim upon which relief may be granted. Based on the foregoing, Judge Peterson granted the Plaintiffs leave to proceed on the following claims: (1) the Defendants have failed to provide them a meaningful opportunity for release, in violation of the Eighth Amendment; and (2) the Defendants' procedures for making parole decisions are not sufficient to give the Plaintiffs a meaningful opportunity to obtain release, in violation of the Due Process Clause. The Plaintiffs may have until June 18, 2019, to show cause why their claim under the Sixth Amendment should not be dismissed for failure to state a claim upon which relief may be granted. The Court will defer service until it makes a decision on whether the Plaintiffs may proceed on their Sixth Amendment claim. A full-text copy of the Court's June 4, 2019 Opinion and Order is available at https://is.gd/RItuvI from Leagle.com. Carlos King, On behalf of himself and all others similarly situated, Thaddeus Karow, On behalf of himself and all others similarly situated, James Price, On behalf of himself and all others similarly situated, Craig Alan Sussek & Victoriano Heredia, On behalf of himself and all others similarly situated, Plaintiffs, represented by Asma Imtiazali Kadri -- akadri@aclu-wi.org -- American Civil Liberties Union of Wisconsin Foundation, Avery Gilbert -- avery@agilbertlaw.com -- Carly S. Conway -- carly.levin@quarles.co -- Quarles & Brady LLP, Emma Smith Shakeshaft -- eshakeshaft@aclu-wi.org -- ACLU of Wisconsin Foundation, Inc., Gregory T. Everts -- greg.everts@quarles.com -- Quarles & Brady, Heather Holden Brooks -- hbrooks@foley.com -- Foley & Lardner LLP, Issa Kohler-Hausmann -- issa.kohler-hausmann@yale.edu -- Yale Law School, Joseph R. Santeler -- Joseph.Santeler@quarles.com -- Quarles & Brady, Laurence J. Dupuis -- ldupuis@aclu-wi.org -- Aclu of Wisconsin Foundation, Inc., Maria Lyon -- mlyon@foley.com -- Foley & Lardner, Martha Jahn Snyder -- mjahn@quarles.com -- Quarles & Brady, Patrick John Proctor-Brown -- patrick.proctor-brown@quarles.com -- Quarles & Brady LLP & R. Timothy Muth -- tmuth@aclu-wi.org -- Aclu of Wisconsin Foundation, Inc.. ********* 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 ***