/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190807.mbx C L A S S A C T I O N R E P O R T E R Wednesday, August 7, 2019, Vol. 21, No. 157 Headlines ABC CORP: Zhen Suit Seeks to Recover Unpaid Overtime Wages ADLER WALLACH: McCorkle Files FDCPA Suit in E.D. Tennessee AIRWAY CLEANERS: Court Certifies Class in Burgess Labor Suit ALIZ GROUP: Duncan Files ADA Suit in S.D. New York ASCENA RETAIL: Schall Law Firm Files Securities Class Suit AUTOMATIC LOFTS: Fails to Give Summary on Deposits, Farhat Claims BANK OF AMERICA: Josh Thomas Sues over Background Checks BONNIER CORP: $2.15MM Settlement in Friske Suit Has Prelim Approval BRIDGECREST ACCEPTANCE: Canady Sues Over Auto-dialled Calls CHAMPION PETFOODS: Court Narrows Claims in Simpson Suit CIMAREX ENERGY: Court Narrows Claims in Reirdon Suit CONAGRA FOODS: Court Denies Nationwide Class Certification in Allen CONSTRUCTION SOLUTIONS: Fields Sues Over Laborers' Unpaid Wages CREATIVE HAIRDRESSERS: Anderson Seeks Over Unpaid Overtime Wages CRYSTAL ENTERPRISES: Underpays Production Managers, Backman Says CVS HEALTH: Staff Labor Suit Removed to E.D. Cal. DALLAS, TX: Prelim Injunction Bid as to Section 552.007 Granted DEMARK INC: Bid to Certify Class in Griffin Suit Denied as Moot DIVYA DRISHTI: Fails to Pay Minimum, Overtime Wages, Peralta Says DURHAM D&M: Removes Gardner Labor Class Suit to C.D. California DUVAL COUNTY, FL: Schatzel Files Civil Rights Suit v. School Board EAGLE CREEK: Dennis Claims Website Not Blind-Friendly EQUIFAX INFORMATION: Bruno FCRA Suit Dismissed With Prejudice EVENTBRITE INC: Barbieri Sues Over Text Ads re Cinco De Mayo Fest EVERALBUM INC: Figueroa Appeals N.D. Cal. Decision to 9th Circuit EXPEDIA INC: Court Narrows Claims in Woodell Suit EXTREME NETWORKS: $7MM Class Settlement in Securities Suit OK'd FACEBOOK INC: Court Narrows Claims in Bass Data Breach Suit FORD MOTOR CO: Arendt Files Fraud Class Suit in Minn. GAW MINERS: Court Certifies Class in Audet Securities Suit GRAGIL ASSOCIATES: Navarro Suit Asserts FDCPA Violation GRAND CANYON: Webb Klase Files Class Action Lawsuit HEARTLAND FINANCIAL: Bangart Seeks to Recover Unpaid Overtime HELIUS MEDICAL: Bronstein Gewirtz Files Class Action Lawsuit HENRY COUNTY, IN: Court Certifies Class in Bell Prisoners Suit HIGHMARK HEALTH: Court Narrows Claims in Antitrust Suit IDEANOMICS INC: Pomerantz Files Securities Class Action Lawsuit JOHNSON & JOHNSON: Hernandez Sues Over Tylenol's Misleading Labels KCG HOLDINGS: Bid to Dismiss Amended Chester Suit Denied KIDS BEHAVIORAL: Bonanini Seeks to Recover Damages Under WARN Act KIEWIT CORP: Avila Labor Suit Remanded to California State Court LANNETT COMPANY: Class Action Survives Motion to Dismiss LEE LAW OFFICES: Shanahan FDCA Suit Settlement Has Final Approval LOS LUNAS CENTER: Settlement in Jackson Suit Has Final Approval LYNDON DINER WEST: Brown Labor Suit Hits FLSA Breach MALLARD COMPLETIONS: Does not Properly Pay Workers, Parks Says MANTEI & ASSOCIATES: Removes Black et al. Suit to D. S.C. MDL 2672: Court Denies Bosch's Bid for Lone Pine CMO MIDLAND FUNDING: Can Compel Arbitration in George FDCPA Suit MIDLAND FUNDING: Can't Compel Arbitration in Ramirez FDCPA Suit MLB HOTEL MANAGER: Nelson Sues Over Unpaid Minimum, Overtime Wages MONSANTO COMPANY: Brogan Sues over Sale of Herbicide Roundup MONSANTO COMPANY: Browns Sue over Sale of Herbicide Roundup MONSANTO COMPANY: Case Sues over Sale of Herbicide Roundup MONSANTO COMPANY: D'Heur Sues over Sale of Herbicide Roundup MONSANTO COMPANY: Hineses Sue over Sale of Herbicide Roundup MONSANTO COMPANY: Mitchells Sue over Sale of Herbicide Roundup MUTUAL FUND: Emerson Securities Suit Dismissed With Prejudice NATIONAL RURAL: Sued over Mismanagement of 401(k) Pension Plan NAVY FEDERAL: Bid to Reconsider Expert Fees in Plemons Suit Denied NETSHOES (CAYMAN): Securities Class Action Claim Dismissed NEW YORK: $2.9MM Attorney's Fees OK'd Willowbrook Litigation NINTENDO CO: Class Action Over Drifting Joy-Con Controllers NRG ENERGY: Removes Tejero Labor Class Suit to N.D. California OHIO EQUITY PLUS: Brett Sues Over Illegal Telemarketing Calls OMNICELL INC: Bernstein Liebhard Files Securities Class Suit OMNICELL INC: Federman & Sherwood Files Securities Class Action OMNICELL INC: Glancy Prongay Files Securities Fraud Class Action OMNICELL INC: Hagens Berman Files Securities Class Action OMNICELL INC: Sept. 16 Lead Plaintiff Bid Deadline ONE WORLD TELECOM: Has Made Unsolicited Calls, Boriskin Claims ONLINE INFORMATION: Freeman Files FDCPA Suit in E.D. New York OWL INC: Perez Appeals M.D. Florida Decision to Eleventh Circuit PER.SE BEAUTY: Kiler Files ADA Suit in E.D. New York PETSMART INC: Delsalvo Claims Website not Blind-Friendly PREMIERE CREDIT: Ward Files FDCPA Suit in M.D. Florida PROCOLLECT INC: Bradswell Files FDCPA Suit in Connecticut PROGRESSIVE SELECT: Lopez's Class Cert. Bid Denied as Moot PSP DISTRIBUTION: Ash Sues over Mislabeled Cat Food Products PURDUE PHARMA: Poughkeepsie City Opioid Row Removed to S.D.N.Y. QUOGUE CLUB: Duncan Files ADA Suit in S.D. New York RBS CITIZENS: Renewed Bid to Decertify Reinig FLSA Class Denied RECOLOGY SAN FRANCISCO: Dwelle Files Suit in Cal. Super. Ct. SHOWS CALI: Court Dismisses Calogero FDCPA Suit With Prejudice SIRIUS XM: Removes Parrella Suit to New Jersey District Court SOUTHAMPTON VILLAGE: Duncan Files ADA Suit in S.D. New York SPIROS PARTNERS: Bailey Hits Misclassification, Unpaid Wages STANFORD INTERNATIONAL: 5th Cir. Affirms Bar Orders in Zacarias STEMGENEX MEDICAL: Court Certifies 2 Subclasses in Moorer Suit STUDENT LOANS: Garcia TCPA Suit Asserts Invasion of Privacy TECH RABBIT: Zarrabian Remanded to California State Court UNITED AIRLINES: Seeks 9th Circuit Review of Ruling in Brown Suit UNITED COLLECTION: Israel Files FDCPA Suit in E.D. New York UNITED STATES: Sweet Moves to Certify Borrowers' Class & Subclass UNIVERSAL PROTECTION: Underpays Security Officers, Griffith Says US BANK: Casper Files Suit Over Illegal Fees VACO TECHNOLOGY: Google's Bid to Junk Bush Wage & Hour Suit OK'd VITA-MIX CORP: $41K in Costs Awarded in Linneman Suit WALGREEN PHARMACY: Epstein Labor Suit Removed to C.D. Cal. WYETH: Denial of Browning's Claims in Diet Drugs Suit Affirmed XPO LOGISTIC: Sept. 4 Hearing on Kramer Deal Prelim Approval Bid ********* ABC CORP: Zhen Suit Seeks to Recover Unpaid Overtime Wages ---------------------------------------------------------- Zhen Ming Chen, individually and on behalf of all other employees similarly situated, Plaintiff, v. ABC Corporation, Yiming Peng and John Doe 1-10, Defendants, Case No. 19-cv-06673, (S.D. N.Y., July 17, 2019), seeks unpaid wages for overtime compensation due, liquidated damages, reasonable attorney's fees, costs and expenses of this action and such other relief under the Fair Labor Standards Act and New York labor laws. Defendant operates as "Taco Today" located at 1659 First Avenue, New York where Zhen worked as a delivery person but was required to perform non-tipped side work, including taking out the trash, cleaning, cutting, and preparing items to be used for delivery orders. He claims to be denied overtime for time worked in excess of 40 hours in any given workweek.[BN] Plaintiff is represented by: Vincent S. Wong. Esq. LAW OFFICES OF VINCENT S. WONG 39 East Broadway, Suite 306 New York, NY 10002 Tel: (212) 349-6099 Fax: (212) 349-6599 Email: VW@WongESQ.com ADLER WALLACH: McCorkle Files FDCPA Suit in E.D. Tennessee ---------------------------------------------------------- A class action lawsuit has been filed against Adler Wallach & Associates, Inc. The case is styled as Travis McCorkle individually and on behalf of all others similarly situated, Plaintiff v. Adler Wallach & Associates, Inc., John Does 1-25, Defendants, Case No. 1:19-cv-00220 (E.D. Tenn, July 31, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Adler Wallach & Associates, Inc. (AWA) is a collection agency that was established in 1991. AWA offers customized delinquent accounts receivable solutions.[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 AIRWAY CLEANERS: Court Certifies Class in Burgess Labor Suit ------------------------------------------------------------ In the case, SHANETTAY BURGESS, SHANAE BURTON, JEAN CAYEMITTE, YAYA KARRIEM, ALL OTHERS SIMILARLY SITUATED Plaintiff, v. AIRWAY CLEANERS, LLC, Defendant, Docket No. 158584/2014, Motion Seq. No. 002 (N.Y. Sup.), Judge Nancy M. Bannon of the Supreme Court of New York County granted the Plaintiffs' motion to certify a settlement class, to preliminarily approve the settlement dated Dec. 18, 2018, to approve the forms for notices and claims, and to appoint the Plaintiff's counsel as the class counsel. In the class action to recover unpaid wages and benefits, the Plaintiffs move for the certification of the settlement class, approval of a settlement of the class action, approval of the forms of notices and claims, and the appointment of the Plaintiff's counsel as the class counsel. The Defendant does not oppose the motion. The Plaintiffs, Burgess, Burton, Cayemitte, and Karriem, individually and on behalf of others similarly situated, commenced the action against Airway, alleging that, beginning or about September 2008, Airway violated Labor Law Sections 650 et seq., Labor Law Sections 190 et seq., and 12 NYCRR 142-2.1 by failing to pay its employees for all hours worked, failing to pay its employees for an additional hour of time at the minimum wage rate for all days during which the spread of hours exceeded 10 hours or a split shift occurred, and failing to pay its employees for the supply, maintenance or laundering of required uniforms. The class sought to be certified consists of all individuals employed by Airway at its JFK airport location between Sept. 3, 2008, and April 5, 2015. The proposed class settlement will require the defendant to pay $500,000 into a settlement fund, of which $166,666.66 thereof is allocated to pay the fees of the Plaintiff's attorneys. Judge Bannon finds that the representatives have demonstrated that they can fairly and adequately protect the interests of the class, as they have no claims potentially adverse to other class members. The class action procedure appears to be superior to other available methods of adjudicating the controversy, since the amount that might be recovered by an individual class member in a separate lawsuit might be quite modest. She also finds that the Plaintiffs have demonstrated that, in light of the fact that the membership in the class is not overwhelmingly large, the class members performed the same job, and the claims cover only a limited period of time, the claims as set forth in the complaint can be efficiently and economically managed by the Court on a classwide basis. She further finds that the affidavit of the Plaintiffs' counsel describes dozens of class actions that his firm has litigated successfully, which amply demonstrated its experience and skill in class action litigation, and that it will adequately represent the interest of all the class members. Finally, the Plaintiffs also seek an order scheduling a "fairness hearing" pursuant to Fed. R. Civ. P. 23(a)(2), a procedure which has been adopted in CPLR article 9 class actions in New York. That application is granted, the hearing is scheduled, and all parties will appear on Oct. 3, 2019, at 2:30 p.m. Accordingly, Judge Bannon granted the Plaintiffs' motion to certify a settlement class, to preliminarily approve the settlement, to approve the forms for notices and claims, and to appoint the class counsel. Without opposition, she certified the class, preliminarily approved the agreement, and approved the forms. A fairness hearing will be conducted on Oct. 3, 2019, at 2:30 p.m. The decision and order constitutes the Decision and Order of the Court. A full-text copy of the Court's June 25, 2019 Decision and Order is available at https://is.gd/C90j9e from Leagle.com. ALIZ GROUP: Duncan Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Aliz Group, LLC. The case is styled as Eugene Duncan AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, Plaintiff v. Aliz Group, LLC, Defendant, Case No. 1:19-cv-07168 (S.D. N.Y., July 31, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Aliz Group, LLC is a privately owned and operated property management, acquisition, and development company headquartered in New York City.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. The Marks Law Firm PC 175 Varick Street 3rd Floor New York, NY 10014 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: bmarkslaw@gmail.com ASCENA RETAIL: Schall Law Firm Files Securities Class Suit ---------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, announces the filing of a class action lawsuit against Ascena Retail Group, Inc. (NASDAQ: ASNA) for violations of Sec. 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission. Investors who purchased the Company's shares between Sept. 16, 2015 and June 8, 2017, inclusive (the "Class Period"), are encouraged to contact the firm before August 6, 2019. We also encourage you to contact Brian Schall of the Schall Law Firm, 1880 Century Park East, Suite 404, Los Angeles, CA 90067, at 424-303-1964, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at brian@schallfirm.com. The class, in this case, has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the Complaint, the Company made false and misleading statements to the market. Ascena's acquisition of ANN, Inc. developed into a disaster for the Company based on ANN's operations to be in far worse condition than was generally believed to be the case. The Company improperly delayed the recognition of an impairment charge related to ANN's goodwill to mask the true extent of this problem. Based on this delay, the Company's income and assets were overstated and its financial results were not in conformity with GAAP. Ascena overvalued many of the brands in the ANN acquisition as they were in serious decline. Based on these facts, the Company's public statements were false and materially misleading throughout the class period. When the market learned the truth about Ascena, investors suffered damages. Join the case to recover your losses. The Schall Law Firm represents investors around the world and specializes in securities class action lawsuits and shareholder rights litigation. CONTACT: Brian Schall, Esq. The Schall Law Firm Office: 310-301-3335 Cell: 424-303-1964 Website: www.schallfirm.com E-mail: info@schallfirm.com brian@schallfirm.com [GN] AUTOMATIC LOFTS: Fails to Give Summary on Deposits, Farhat Claims ----------------------------------------------------------------- NATALIE FARHAT & MAGIDA FARHAT, Individually And As Representatives of a Class of Similarly Situated Persons v. AUTOMATIC LOFTS, LLC & JMG REALTY, INC., Case No. 2019CH08530 (Ill. Cir., Cook Cty., July 22, 2019), accuses the Defendants of violating the Chicago Residential Landlord and Tenant Ordinance, Section 5-12-170 by failing to provide the Plaintiffs with a separate summary describing the respective rights, obligations, and remedies of landlords and tenants with respect to security deposits. The Plaintiffs were tenants of dwelling units located at 410 S. Morgan Street, in Chicago, Illinois. The subject building is a large residential apartment building in Chicago containing over 200 residential rental dwelling units. Automatic Lofts, was an owner, lessor, and landlord of 410 Morgan. JMG Realty was a lessor, authorized agent for the owner, and landlord of 410 Morgan. JMG Realty was hired and paid by Automatic Lofts to manage 410 Morgan.[BN] The Plaintiffs are represented by: Aaron A. Krolik, Esq. AARON KROLIK LAW OFFICE, P.A. 225 W. Washington St., Suite 2200 CHICAGO, IL 60606 Telephone: (312) 924-0278 Facsimile: (312) 650-8241 E-mail: akrolik@securitydepositlaw.com - and - Mark Silverman, Esq. MARK SILVERMAN LAW OFFICE LTD. 225 W. Washington St., Suite 2200 Chicago, IL 60606 Telephone: (312) 775-1015 Facsimile: (312) 256-2055 E-mail: mark@depositlaw.com BANK OF AMERICA: Josh Thomas Sues over Background Checks -------------------------------------------------------- JOSH THOMAS, individually and on behalf of all others similarly situated, Plaintiff v. BANK OF AMERICA CORPORATION, Defendants, Case No. 3:19-cv-05689-TLF (W.D. Wash., July 26, 2019) alleges violations of the Fair Credit Reporting Act. The case is assigned to Judge Theresa L. Fricke. Bank of America Corporation accepts deposits and offers banking, investing, asset management, and other financial and risk-management products and services. The Company has a mortgage lending subsidiary, and an investment banking and securities brokerage subsidiary. [BN] The Plaintiff is represented by: Chris Rosfjord, Esq. ROSFJORD LAW, PLLC 6725 22nd Ave NW Seattle, WA 98117 Telephone: (206) 321-4849 E-mail: rosfjordlaw@gmail.com BONNIER CORP: $2.15MM Settlement in Friske Suit Has Prelim Approval ------------------------------------------------------------------- In the case, REBECCA FRISKE, Plaintiff, v. BONNIER CORPORATION, Defendant, Case No. 16-12799 (E.D. Mich.), Judge David M. Lawson of the U.S. District Court for the Eastern District of Michigan, Southern Division, granted the Plaintiff's unopposed motions to certify a settlement class and for preliminary approval of the proposed settlement agreement and procedure for providing the class notice. The named Plaintiff, Friske, brought the action under Michigan's Video Rental Privacy Act ("VRPA"), alleging that the Defendant, a Delaware corporation that sells subscriptions to magazines nationwide, sold and disclosed customer data to third parties in violation of that state law. She seeks damages and injunctive relief to prevent further disclosure of her and other similarly situated class members' personal information. The Plaintiff filed a second motion to conditionally certify a settlement class and a motion to preliminarily approve a class settlement agreement, appoint a settlement administrator, authorize notice of a class action settlement, and set a date for a final fairness hearing. These motions are unopposed. The Court previously conditionally certified a class for settlement purposes, but after the first motion to approve a proposed settlement on behalf of the class was denied, it decertified the class. After a third party attempted unsuccessfully to intervene, the parties returned to mediation and negotiated a revised settlement. On March 18, 2019, the Plaintiff filed the instant, unopposed motions to conditionally certify the settlement class and appoint class counsel and for preliminary approval of the class action settlement. They propose a settlement class defined as all Michigan residents who subscribed to or received one or more subscriptions to a magazine published by Bonnier between July 28, 2010 and the date of Preliminary Approval of the Agreement, and who did not purchase such subscriptions through a Third-Party Subscription Agent. The parties now anticipate that the class would consist of approximately 164,509 Michigan residents. The terms of the proposed settlement include the following features: a. A non-reversionary settlement fund of $2,150,000 furnished by the Defendant. b. The class members who submit a claim form will receive a pro rata cash payment that the Plaintiff's counsel estimates to be between $43 and $86 (based on claim-submission optin rates of 20% and 10%, respectively). c. If a class member does not submit a claim form, he or she will receive a voucher or purchase code for a free, one-year subscription to one of Bonnier's magazines. d. Bonnier will retain disclosure language contained in all its publications and undertake commercially reasonable measures to honor the request of any individual who submits a request to opt out of the subscriber list occasionally made available to third parties. e. Bonnier will undertake commercially reasonable measures to include disclosure language in informational materials used to establish a new magazine subscription so that disclosure is available to consumers before subscribing. f. The costs of administration will not exceed $100,000, but they will be paid from settlement fund. g. The named Plaintiff's incentive award will be no more than $2,500, paid from settlement fund. h. The class counsel will seek attorney's fees of no more than $625,000 or 29% of the settlement fund. Judge Lawson heard the parties' arguments on June 11, 2019. No one appeared in opposition. The Plaintiff has presented an adequate basis to recertify a settlement class, and she has shown that the new settlement proposal merits approval. Therefore, he will recertify the settlement class, grant preliminary approval of the proposed settlement, authorize the notice (with some minor modifications), and set a date for a final hearing. Accordingly, The Judge granted the Plaintiff's unopposed motions to certify a settlement class and for preliminary approval of the proposed settlement agreement and procedure for providing class notice. The proposed settlement agreement is preliminarily approved, subject to objections by absent class members and except for the determination of the attorney's fees and costs. Pursuant to Federal Rule of Civil Procedure 23(b)(3), the following settlement class is conditionally certified in the case: All Michigan residents who subscribed to or received one or more subscriptions to a magazine published by Bonnier between July 28, 2010 and the date of Preliminary Approval of the Agreement, and who did not purchase such subscriptions through a Third-Party Subscription Agent. The counsel of record for the named Plaintiff, namely attorneys Gary Lynch, Jamisen Etzel, and Daniel Myers, are appointed as the counsel for the designated settlement class. Plaintiff Rebecca Friske is appointed as the class representative. Angeion Group is approved as the claims administrator for the settlement. The Judge further approved the deposit within 30 days of the settlement funds into an escrow account to be held pending final disposition of all settlement claims, or until further order of the Court, and the Court orders the Defendant's compliance with the term. On July 10, 2019, the Defendant shall provide notice of the proposed class settlement to the appropriate state and federal authorities. The Defendant must file proof that it has provided the required notice with the Court, in compliance with the Class Action Fairness Act. The Plaintiff's counsel or their designated representative shall cause notice of the proposed settlement to be given to the class members in the following manner: (a) On July 10, 2019, a copy of the Notice of Class Action Settlement Agreement must be mailed to each class member. The class administrator shall ensure that the creation of a claims website is accomplished by that same date. (b) The notice to the class members must explain that objections to, and requests to be excluded from, the class settlement must be filed with the Court and the parties' counsel on Aug. 26, 2019. (c) In lieu of the notice described, an abbreviated notice, may be mailed to each class member for whom the Plaintiff's counsel or his designated representative can confirm has an active email account with access to the Internet. The Plaintiff's counsel shall file proof of mailing of the class notice in conformity with the Order on July 17, 2019. The expenses of printing and mailing and publishing all notices required shall be paid as described in the settlement agreement. The notice of class settlement must inform the absent class members that Proofs of Claim and supporting documentation must be submitted on Aug. 23, 2019. The Proofs of Claim sent by mail shall be deemed submitted when postmarked if mailed by first class, registered or certified mail, postage prepaid, addressed in accordance with the instructions in the Proof of Claim. All other Proofs of Claim shall be deemed submitted at the time of actual receipt. The Judge ordered that on Sept. 3, 2019, the Plaintiff's counsel must file a motion for final approval of the settlement identifying absent class members who opt out or object. The Defendant's response, if the motion is opposed, must be filed by Sept. 10, 2019, and the Plaintiff's reply, if any, must be filed by Sept. 17, 2019. The Fairness Hearing shall be held at 1:00 p.m. on Sept. 23, 2019. No class member shall be entitled to be heard or entitled to contest the approval of the terms and conditions of the proposed settlement or the judgment to be entered pursuant thereto approving the same, or the Plaintiff's counsel's fee, expense and incentive award application, unless, by Aug. 23, 2019, such person: (a) has filed with the Clerk of Court a notice of such person's intention to appear, together with a statement that indicates the basis for such opposition along with any supporting documentation, and (b) has served copies of such notice, statement, and documentation, together with copies of any other pleadings that such person has filed with the Clerk of the Court and each parties' counsel at the following addresses: Clerk of the Court United States District Court 231 Lafayette Boulevard Detroit, MI 48226 Re: Rebecca Friske v. Bonnier Corporation Case Number 16-12799 Counsel for the Plaintiff Gary Lynch and Jamisen A. Etzel Carlson Lynch Sweet & Kilpela, LLP 36 N. Jefferson St. P.O. Box 7635 New Castle, PA 16107 724-656-1555 Fax: 724-656-1556 Daniel Myers The Law Offices of Daniel O. Myers 4020 Copper View Ste. 225 Suite 225 Traverse City, MI 49684 231-943-1135 Counsel for the Defendant Daniel T. Stabile and Francis A. Zacherl Shutts & Bowen LLP 200 South Biscayne Blvd Suite 4100 Miami, FL 33131 305-415-9063 Fax: 305-347-7714 John J. Gillooly Garan Lucow 1155 Brewery Park Blvd., Suite 200 Detroit, MI 48207-2641 313-446-5501 The applications for incentive awards, attorney's fees, or reimbursable expenses under Rule 23(h) must be filed by Sept. 3, 2019. The counsel must provide notice to class members in accordance with Fed. R. Civ. P. 23(h)(1). The class counsel shall be responsible for maintaining a file of all responses to the notice of settlement and any and all other written communications received from the class members. The class counsel immediately shall provide copies of such responses and communications to the Defendant's counsel. A full-text copy of the Court's June 25, 2019 Order is available at https://is.gd/5Pjx99 from Leagle.com. Rebecca Friske, Plaintiff, represented by Daniel O. Myers, The Law Offices of Daniel O. Myers & Gary Lynch -- glynch@carlsonlynch.com -- Carlson Lynch Sweet & Kilpela, LLP. Bonnier Corporation, Defendant, represented by Daniel T. Stabile -- DStabile@shutts.com -- Shutts & Bowen LLP, Francis A. Zacherl -- FZacherl@shutts.com -- Shutts Bowen LLP & John J. Gillooly -- jgillooly@garanlucow.com -- Garan Lucow. BRIDGECREST ACCEPTANCE: Canady Sues Over Auto-dialled Calls ----------------------------------------------------------- Tonya Canady, on behalf of herself and others similarly situated, Plaintiff, v. Bridgecrest Acceptance Corporation, Defendant, Case No. 19-cv-04738 (D. Ariz., July 19, 2019), seeks statutory damages and injunctive relief for violations of the Telephone Consumer Protection Act. Bridgecrest is a provider and servicer of Auto Loans where Plaintiff's husband availed of financing to purchase a car. Bridgecrest began calling Plaintiff's cellular telephone number in an attempt to reach her husband using an automatic telephone dialing system and would have long delays before an agent came on the line and often used an artificial or prerecorded voice. [BN] Plaintiff is represented by: Trinette G. Kent, Esq. LEMBERG LAW, LLC 3219 E. Camelback Rd., #588 Phoenix, AZ 85018 Tel: (855) 301-2100 Email: tkent@lemberglaw.com - and - Keith J. Keogh, Esq. KEOGH LAW, LTD 55 West Monroe Street, Suite 3390 Chicago, IL 60603 Tel: (312) 726-1092 Fax: (312) 726-1093 Email: Keith@KeoghLaw.com - and - Max Story, Esq. 328 2nd Avenue North Jacksonville Beach, FL 32250 Telephone: (904) 372-4109 Facsimile: (904) 758-5333 CHAMPION PETFOODS: Court Narrows Claims in Simpson Suit ------------------------------------------------------- In the case, TRACY SIMPSON ET AL., Plaintiffs, v. CHAMPION PETFOODS USA, INC. ET AL., Defendants, Civil Action No. 2:18-CV-74 (WOB-CJS) (E.D. Ky.), Judge William O. Bertelsman of the U.S. District Court for the Eastern District of Kentucky, Northern Division, Covington, granted in part and denied in part the Defendants' motion to dismiss. Defendant Champion Petfoods LP owns and controls Defendant Champion Petfoods USA, Inc. Champion manufactures, markets, and sells premium-priced dog food throughout the United States, including in Kentucky and Virginia, where, respectively, Plaintiff Simpson and Danika Lolles purchased Champion's dog food from various third-party pet food stores. Champion's dry dog food products are sold under two brand names: "Orijen" and "Acana," both of which contain substantially similar representations on the package label. The proposed class action involves alleged misrepresentations on the package labeling for dog food. The Plaintiffs allege in particular that Defendant Champion Petfoods misrepresented the quality of its premium dry dog food by labeling it as containing "fresh, raw, or dehydrated ingredients" that are "regional" and "deemed fit for human consumption prior to inclusion." According to the Plaintiffs, their injury stems from the fact that they believed Champion's products were "healthy, quality products for their pets, and they paid a premium price they would not have paid had they been aware of the alleged facts pertaining to Champion's products. They seek compensation for their loss and classwide treatment for the thousands of estimated class members in Kentucky and Virginia. The Plaintiffs assert the following seven counts: (i) Count I - Violation of the Kentucky Consumer Protection Act; (ii) Count II - Violation of the Virginia Consumer Protection Act of 1977; (iii) Count III - Breach of express warranty under Kentucky law; (iv) Count IV - Breach of express warranty under Virginia law; (v) Count V - Breach of implied warranty; (vi) Count VI - Fraudulent omission; and (vii) Count VII - Unjust enrichment. On Jan. 8, 2019, the Court heard oral argument on the Defendants' first motion to dismiss. At the end of the hearing, the Plaintiffs' counsel made an oral request to amend the complaint. That request was granted. The matter is now before the Court on the Defendants' motion to dismiss the amended complaint. The Court dispenses with oral argument at this stage because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. Accordingly, the matter is ripe for disposition. Judge Bertelsman finds that the claims Simpson has asserted against Champion fail under Kentucky law. The only remaining claims in the case are those arising under Virginia law that pertain to Lolles and the proposed class of Virginia Plaintiffs she intends to represent (Counts II, IV, and V). As a result, "the interests of justice" and the "convenience of the parties and witnesses" suggest that it would be appropriate to transfer the action pursuant to 28 U.S.C. Section 1404(a) to the U.S. District Court for the Eastern District of Virginia, Norfolk Division. Accordingly, the parties are notified that the Court is considering a sua sponte transfer of the case based on the various factors to be weighed. Consistent with the accompanying Memorandum Opinion, Judge Bertelsman granted in part and denied in part the Defendants' motion to dismiss the amended complaint. All of Plaintiff Simpson's claims (Counts I, III, V, VI, and VII), are dismissed with prejudice. Plaintiff Lolles' claims under Counts VI and VII are also dismissed with prejudice. The parties will file simultaneous briefs by July 8, 2019, addressing the appropriateness of transferring the action under 28 U.S.C. Section 1404(a). A full-text copy of the Court's June 21, 2019 Memorandum Opinion and Order is available at https://is.gd/NmYbR3 from Leagle.com. Tracy Simpson & Danika Lolles, Plaintiffs, represented by Adam S. Brown -- abrown@blfohio.com -- Brown Law Firm LLC, Ben Barnow -- b.barnow@barnowlaw.com -- Barnow and Associates, P.C., pro hac vice, Joseph J. Braun -- jjbraun@strausstroy.com -- Strauss & Troy Co., LPA, pro hac vice, Phyllis E. Brown -- pbrown@blfohio.com -- Brown Law Firm LLC, Richard S. Wayne -- rswayne@strausstroy.com -- Strauss & Troy, LPA, pro hac vice & Robert R. Sparks -- rrsparks@strausstroy.com -- Strauss & Troy Co., LPA. Champion Pet Foods USA Inc. & Champion Petfoods LP, Defendants, represented by David A. Coulson -- coulsond@gtlaw.com -- Greenberg Traurig, P.A., pro hac vice & John W. Hays -- jwhays@jacksonkelly.com -- Jackson Kelly PLLC. CIMAREX ENERGY: Court Narrows Claims in Reirdon Suit ---------------------------------------------------- In the case, DORSEY J. REIRDON, Plaintiff, v. CIMAREX ENERGY COMPANY, AND CIMAREX ENERGY CO. OF COLORADO, Defendants, Case No. CIV-16-445-SPS (E.D. Okla.), Magistrate Judge Steven P. Shreder of the U.S. District Court for the Eastern District of Oklahoma granted in part and denied in part Defendants Cimarex Energy Co. and Cimarex Energy Co. of Colorado's Partial Motion for Summary Judgment on Plaintiff's Non-Contract Claims and Brief in Support. The Plaintiff filed the case in the Court on Oct.14, 2016. On Jan. 19, 2017, the Court held a status and scheduling conference, at which time the Court granted the parties leave to file a series of partial summary judgment motions without prejudice to ultimately filing a summary judgment motion on the main merits of the case. The Plaintiff filed an Amended Class Action Complaint on Oct. 11, 2017, following the Court's ruling on a partial Motion to Dismiss. The Defendants then filed a series of partial summary judgment motions. The Court then stayed the case on June 26, 2018, pending formal mediation by the parties, and the case was thereafter reopened following the conclusion of mediation on Sept. 25, 2018. The Plaintiff contends in the Amended Class Action Complaint that Cimarex used, caused to be used, and/or allowed third parties to use natural gas from Oklahoma wells, but that despite express provisions in the oil and gas leases, Cimarex knowingly and systematically underpaid royalty to him through a policy of not paying royalties for fuel gas, and that Cimarex failed to disclose on monthly royalty check stubs that it was not paying royalty on the full volume and value of production from the Oklahoma wells. In addition to the personal allegations, the Plaintiff asserts that he is acting as a representative of a class defined as all non-excluded persons or entities who are or were royalty owners in Oklahoma wells where Cimarex, including its predecessors or affiliates, is or was the well operator and working interest owner (or, as a non-operating working interest owner, Cimarex separately marketed gas), and who, from Jan. 1, 2013 are or were entitled to share in royalty proceeds payable under oil and gas leases that contain an express provision stating that royalty will be paid on gas used off the lease premises and/or in manufacture of products. The class allegations indicate that the common questions of fact include: (a) whether, under express terms of the oil and gas leases under which Reirdon and the putative Class are entitled to be paid royalty, Cimarex has or had a duty to pay royalty on Fuel Gas; (b) whether Cimarex has paid the full amount of royalty owed on Fuel Gas; and (c) whether Cimarex's uniform royalty payment methodology breaches Cimarex's express duties to pay royalty on Fuel Gas. The Plaintiff's First Amended Class Action Complaint sets out the following enumerated causes of action: (I) breach of contract, (II) unjust enrichment, and (III) fraud (actual and constructive) and deceit, as well as enumerated claims for (IV) an accounting and (V) an injunction. Having filed separate summary judgment motions as to the Plaintiff's breach of contract claim, the Defendants now move for summary judgment on the Plaintiff's non-contract claims, Counts II-V (unjust enrichment, constructive fraud, actual fraud, accounting, and injunction). Cimarex asserts that it is entitled to summary judgment as to the Plaintiff's claims for unjust enrichment, constructive fraud, accounting, and injunction, because the Plaintiff has an adequate remedy at law, i. e., his breach of contract claim. Additionally, Cimarex contends that the Plaintiff's claim of actual fraud fails because the alleged breach of duty is not recognized under Oklahoma law. Magistrate Judge Shreder granted in part and denied in part the Defendants' Partial Motion for Summary Judgment. He granted in part as to the Plaintiff's equitable, quasi-contract claims of unjust enrichment, constructive fraud, accounting, and injunction. He denied as to the Plaintiff's claim of actual fraud and deceit. The Judge finds that the Plaintiff's claim for breach of contract in the case is an adequate remedy at law. As such, he declines to exercise its equitable jurisdiction as to the Plaintiff's claim for unjust enrichment. This likewise applies to the Plaintiff's claims for an accounting and an injunction, as success on both claims is contingent upon there being no adequate remedy at law. Because the Plaintiff has an adequate remedy at law, he may not pursue a claim for an accounting or injunction. He further finds that genuine issues of material fact remain and that reasonable jurors could find that Cimarex "misrepresented and/or concealed information" required to be disclosed. A full-text copy of the Court's June 25, 2019 Opinion and Order is available at https://is.gd/8FIGPs from Leagle.com. Dorsey J. Reirdon, Plaintiff, represented by Bradley E. Beckworth -- bbeckworth@nixlaw.com -- Nix Patterson, LLP, Cody L. Hill, Nix Patterson, LLP, Jeffrey J. Angelovich, Nix Patterson, LLP, Lisa P. Baldwin, Nix Patterson, LLP, pro hac vice, Susan R. Whatley, Nix Patterson, LLP, pro hac vice, Trey Duck -- tduck@nixlaw.com -- Nix Patterson, LLP, pro hac vice, Lawrence R. Murphy, Jr., Lawrence R. Murphy, Jr., PC, Michael Burrage, Whitten Burrage, Patranell Lewis, Barnes & Lewis, LLP & Robert N. Barnes, Barnes & Lewis, LLP. Cimarex Energy Company & Cimarex Energy Co. of Colorado, Defendants, represented by Bradley W. Welsh -- bwelsh@gablelaw.com -- GableGotwals & Nathan K. Davis -- ndavis@swlaw.com -- Snell & Wilmer, pro hac vice. CONAGRA FOODS: Court Denies Nationwide Class Certification in Allen ------------------------------------------------------------------- The United States District Court for the Northern District of California issued an Order granting in part and denying in part Plaintiffs' Motion for Class Certification in the case captioned ERIN ALLEN, et al., Plaintiffs, v. CONAGRA FOODS, INC., Defendant. Case No. 3:13-cv-01279-WHO. (N.D. Cal.). The Plaintiffs in this case bring various claims against defendant Conagra Brands, Inc., on the grounds that the Parkay Spray label misrepresents its true fat and calorie contents. Plaintiffs Erin Allen, Ofelia Frechette, Shelley Harder, Deana Marr, Tammie Shawley, Brian Smith, and Betty Vazquez bring this proposed class action against Conagra alleging unjust enrichment, violations of various states' consumer protection laws, and violations of California law. They argue that Conagra incorrectly and misleadingly labels Parkay Spray as Fat Free Zero Calories and 0g Fat 0 Calories per serving and charges a premium price based on those misrepresentations. The Plaintiffs seek to certify a nationwide class along with various subclasses of consumers who purchased Parkay Spray in states across the country. RULE 23(A) Numerosity The Plaintiffs assert that their class is so numerous that joinder is impracticable because Conagra sold millions of units of Parkay Spray during the class period . ConAgra counters that plaintiffs have failed to present any evidence of the number of potential class members who in fact have Article III standing based on their use of a serving size of greater than five sprays. Because Conagra's argument is based on a mischaracterization of the injury plaintiffs assert, it fails for the same reasons articulated above. Commonality Rule 23 requires that there be questions of law or fact common to the class. Plaintiffs must show that the class members have suffered the same injury, meaning their claims depend upon a common contention that is of such a nature that determination of its truth or falsity will resolve an issue that is central to the validity of each claim in one stroke. Plaintiffs must demonstrate not merely the existence of a common question, but rather the capacity of classwide proceedings to generate common answers apt to drive the resolution of the litigation. Plaintiffs assert the following common questions: (1) whether the Fat Free Zero Calories and 0g Fat 0 Calories per serving representations violate federal and state labeling laws (2) whether Conagra received a benefit that it would be inequitable for it to retain without compensating plaintiffs and (3) whether the representations were likely to deceive consumers. Conagra does not oppose plaintiffs' contention that there are at least these questions in common. Typicality The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct. Class certification is not appropriate if unique defenses threaten to preoccupy the class representatives and thus cause absent members to suffer. But, the defense of non-reliance is not a basis for denial of class certification. The Plaintiffs assert that their claims are typical of other class members because they purchased Parkay Spray with both labels, believed it did not contain any fat or calories, paid a price premium based on that belief, and now seek restitution of that price premium. Conagra counters that the named plaintiffs have in fact had a variety of unique experiences with Parkay Spray. None of Conagra's challenges to typicality overcome plaintiffs' showing. First it asserts that the plaintiffs are subject to non-reliance defences. The Ninth Circuit has foreclosed Conagra's non-reliance argument as a basis for denying class certification. Adequacy Finally, to establish adequacy under Rule 23(a)(4), named plaintiffs must show that they will fairly and adequately protect the interests of the class. To determine whether named plaintiffs will adequately represent a class, courts must resolve two questions: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class? Conagra argues that the individual state subclasses are not certifiable because the named representatives for each state cannot adequately represent a class in that state. First, named plaintiffs lack standing to pursue injunctive relief because they have no desire to purchase Parkay Spray in the future. But plaintiffs raise deposition testimony that indicates they continue to seek reduced fat and calorie products while grocery shopping and would buy Parkay Spray if they could trust its labeling. Conagra next argues that plaintiffs Allen, Shawley, Marr, and Frechette would be inadequate class representatives because they failed to read or rely on the per serving" language on the Parkay Spray label. This argument fails for the reasons laid out in the discussion of typicality. Conagra does not challenge Gutride Safier's competence to represent the class, and the Court finds that they are competent. Having found that named plaintiffs have met their burden on Rule 23(a)'s requirements, I must also evaluate whether they meet the requirements for certification under Rule 23(b)(3) for damages and Rule 23(b)(2) for injunctive relief. Nationwide Unjust Enrichment Class Conagra asserts that plaintiffs fail the predominance requirement on their unjust enrichment claim because they have not met their burden to show that it would be constitutional to apply California law to a nationwide class. Because each state's law would have to apply, individualized issues predominate over common ones. The Plaintiffs cannot meet their initial burden under California's choice of law rules. California does not have constitutionally sufficient contact or aggregation of contacts to the claims of each class member. Plaintiffs do not contend that ConAgra is headquartered in California, that Conagra is incorporated under California's laws, or that the challenged statements originated in California. Plaintiffs' reply brief does not address Conagra's arguments on this issue. Because plaintiffs do not make the threshold showing, the burden does not shift to Conagra and there is no need to assess whether other states' interests outweigh California's. Given that it would be unconstitutional to apply California unjust enrichment law to the claims of a nationwide class, the laws from all 50 states would have to apply. Accordingly, plaintiffs cannot meet their burden to show that common questions of fact or law predominate over individualized questions as required by Rule 23(b)(3). The Court will deny plaintiffs' motion for certification of a nationwide unjust enrichment class. Plaintiffs have not sought certification of any other classes to pursue unjust enrichment claims. Multistate Consumer Protection Subclasses Conagra argues plaintiffs have failed to meet their burden for certification of the proposed consumer protection subclasses because: (1) common questions into materiality and reliance do not predominate (2) plaintiffs have not shown that damages are capable of calculation on a classwide basis (3) there are material differences between the laws of the states in the various subclasses and (4) it is neither manageable nor superior to proceed on a classwide basis. Materiality and Reliance Conagra argues that individualized questions into materiality and reliance will predominate over common questions. Specifically, plaintiffs cannot show that the alleged misrepresentations would be material to a reasonable consumer, and therefore they will not be entitled to a classwide presumption of reliance under the state laws that permit such a presumption. Under California law, questions of materiality and reliance are determined based upon the reasonable consumer standard, not the subjective understandings of individual plaintiffs. A class of plaintiffs can make the required materiality showing without individualized proof by establishing with, for example, market research) that the statements would be material to a reasonable member of the purchaser class. For the state laws that follow a reasonable person standard for assessing materiality, plaintiffs present sufficient evidence to show that they could be entitled to a presumption of reliance. They put forth their own survey evidence, which shows that consumers were willing to pay a 34-40% premium based on their understanding that the food topping was fat free and had 0g Fat' and Zero Calories. Plaintiffs also raise testimony from Conagra witness Patrick Fitzgerald, who acknowledged that health-conscious consumers are looking for products with reduced calories, less cholesterol, zero cholesterol and less fat. Conagra also argues that plaintiffs are not entitled to a classwide presumption of reliance because the challenged statements were not uniform; instead, in 2009 Conagra approved a new label that added the language per serving. As Judge Chhabria previously concluded, a jury could find that the first label was misleading while the second label was not. Class Cert. Order 2. But this does not defeat plaintiffs' showing on materiality and reliance; rather, it requires that each class be divided into two time periods -- one before and another after the label change -- as plaintiffs suggest in their reply. Conagra next argues that individualized inquiries will be necessary because each person will likely have a different interpretation of the challenged statements. In addition, those who viewed the label as a whole would have realized that the statements were limited to the serving size articulated on the bottle, while understanding that, given the ingredients, the bottle as a whole contained some fat and calories. Where individuals are likely to have different understandings for a word with no fixed meaning, this lack of cohesion can prevent plaintiffs from satisfying the predominance requirement. Conagra's arguments are not persuasive. By contrast with the word natural, zero means zero just as per serving means per serving; the interpretation of the challenged statements is susceptible to common proof. At this stage, the plaintiffs have presented sufficient to allow a fact finder to conclude that a reasonable consumer would have considered the challenged statements material. Finally, Conagra argues that named plaintiffs' own testimony would make a classwide presumption of reliance impossible because they did not in fact rely on the challenged statements. It alleges some did not read the per serving language, and plaintiff Shawley purchased Parkay Spray after another person recommended it, not because of the label. Conagra can raise these and other arguments later in the litigation, but plaintiffs have made a sufficient showing at the class certification stage. Plaintiffs have put forth evidence to allow a fact finder to conclude they are entitled to a classwide presumption of reliance in the states that permit one.] Key to the Court’s conclusions in this Order is the absence of any arguments by plaintiffs that common issues would predominate even if a state's law requires proof of individual reliance. Instead, they argue that the states in their proposed subclasses either do not require reliance or use an objective test for establishing it on a classwide basis. Accordingly, for plaintiffs' subclasses, where they do not successfully show either that (1) reliance is not required under a state's law or (2) the state's law allows them to prove reliance on a classwide basis, plaintiffs have not met their Rule 23 burden. Differences in States' Laws Conagra argues that there are material differences between the state laws invoked by the plaintiffs in their various subclasses, and these differences predominate. In response to some of Conagra's critiques, plaintiffs in their reply agreed to eliminate the first subclass and remove certain states that Conagra challenged. Subclass #2 Plaintiffs seek to certify a class of individuals who purchased Parkay Spray in the following states: Alabama, Alaska, Michigan, Minnesota, Mississippi, and Ohio, subject to the applicable statutes of limitations. Subclass #2 will pursue claims arising under the following consumer protection statutes: Alabama Plaintiffs seek to pursue claims under Alabama's Deceptive Trade Practices Act, Ala. Code § 8-19-5(27). But that law provides, A consumer or other person bringing an action under this chapter may not bring an action on behalf of a class. Instead, only the Attorney General or district attorney may bring class actions. Courts have found differences such as this one material. Plaintiffs do not address Conagra's arguments that it would be inappropriate to certify a class to proceed under Alabama law in this Court when Alabama courts would not allow the same. This subclass cannot include individuals who purchased Parkay Spray in Alabama. Mississippi Plaintiffs seek to pursue claims under Mississippi's Consumer Protection Act. But that law provides: Nothing in this chapter shall be construed to permit any class action or suit, but every private action must be maintained in the name of and for the sole use and benefit of the individual person. Again, plaintiffs do not address Conagra's arguments that it would be inappropriate to certify a class to proceed under Mississippi law in this Court when Mississippi courts would not allow the same. This subclass cannot include individuals who purchased Parkay Spray in Mississippi. Ohio Plaintiffs seek to pursue claims under Ohio's Deceptive Trade Practices Act (ODTPA). Although there is disagreement in Ohio over whether consumers have standing to sue under this law, most courts have determined they do not. One court recently laid out for reasons why it would side with the majority and find no consumer standing. First, courts have found that the ODTPA should be interpreted consistently with the Lanham Act, under which individual consumers lack standing to sue. Second, the court cited the Sixth Circuit's decision in Holbrook. Third, the court concluded that the Ohio Supreme Court would likely agree with the Ohio court of appeal decision Dawson v. Blockbuster, Inc., 2006-Ohio-1240. Fourth, the court determined that if consumers could sue under the ODTPA, the Ohio Consumer Sales Practices Act would be superfluous. The plaintiffs have not met their burden to show Ohio can be part of this subclass because they have not shown that the Ohio Supreme Court would likely disagree with the Ohio courts of appeal. Plaintiffs cannot proceed under Ohio law. Michigan Plaintiffs seek to pursue claims under the Michigan Consumer Protection Act (MCPA).. Plaintiffs contend that none of the states in this subclass require reliance, yet they cite to a case in which the court determined that a class could proceed by showing that a reasonable person would have relied on the representations. In response to the other cases Conagra cites, plaintiffs contend only that they were wrongly decided. Plaintiffs have not met their burden to show Michigan can be part of this subclass because they have not shown that the statute does not require reliance. In the alternative, plaintiffs request certification of a Michigan subclass. The Court will grant this request. Plaintiffs can show reliance and intent to deceive on a representative basis. Minnesota Plaintiffs seek to pursue claims under Minnesota's Deceptive Trade Practices Act (DTPA). Under the DTPA, a person may not, among other things, (1) represent goods as having characteristics they do not have or (2) represent that goods are of a standard that they are not. It is well-settled that monetary damages are not available under the DTPA the sole statutory remedy for deceptive trade practices is injunctive relief. While the subclass can include plaintiffs who purchased Parkay Spray in Minnesota, they may only pursue injunctive relief. Alaska Plaintiffs seek to pursue claims under Alaska's Unfair Trade Practices and Consumer Protection Act (UTPA). To establish a prima facie case of unfair or deceptive acts or practices under the UTPA, a plaintiff must prove two elements: (1) that the defendant engaged in trade or commerce and (2) that in the conduct of trade or commerce, an unfair act or practice has occurred. The plaintiffs need only show that the acts and practices were capable of being interpreted in a misleading way. The subclass can include plaintiffs who purchased Parkay Spray in Alaska. For these reasons, plaintiffs have met their burden to show that it is appropriate to certify a subclass to pursue claims under Alaska and Minnesota law, the latter for injunctive relief only. But with the states eliminated above, plaintiffs lack a class representative who purchased Parkay Spray in either of the states that remain. Without an adequate representative, this subclass cannot proceed. Subclass #3 Plaintiffs seek to certify a class of individuals who purchased Parkay Spray in the following states: District of Columbia, Florida, Missouri, Montana, New Jersey, New York, Rhode Island, Vermont, and Washington, subject to the applicable statutes of limitations. Plaintiffs support this grouping as follows: All states in this class broadly prohibit deceptive conduct. For each state in the class, the misrepresentation must be likely to deceive reasonable consumers. No state requires reliance, knowledge or intent; all require proximate causation. Conagra's challenges to this subclass go to predominance; it argues that some of the states require proof of actual reliance by an individual consumer. As noted above, plaintiffs do not meaningfully counter Conagra's argument that where actual reliance is required, that individualized inquiry would predominate over issues common to the class. District of Columbia Plaintiffs seek to pursue claims under the District of Columbia Consumer Protection Practices Act (DCCPPA). In a case Conagra cites, the court found it unnecessary to resolve the reliance question but did determine that the plaintiff would have to show that defendants' allegedly deceptive trade practices caused her injuries, whether by virtue of her reliance on those practices or by virtue of some other reason. The court noted that causation could be established independently of reliance although the concepts of reliance and causation will often be intertwined. Because plaintiffs could meet their burden by showing causation without a showing of individual reliance, the subclass can include plaintiffs who purchased Parkay Spray in the District of Columbia. Florida Plaintiffs seek to pursue claims under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). A claim under the FDUTPA has three elements: (1) a deceptive or unfair practice; (2) causation; and (3) actual damages. The Act does not require individual proof of reliance.The subclass can include plaintiffs who purchased Parkay Spray in Florida. Missouri Plaintiffs seek to pursue claims under Missouri Merchandising Practices Act (MMPA). Plaintiffs must prove four elements: (1) the use or employment of a deception, a fraud, a false pretense, a false promise, a misrepresentation, an unfair practice, or a concealment, suppression or omission of a material fact (2) in connection with the sale or advertisement of any merchandise in trade or commerce (3) that results in ascertainable loss of money or real or personal property (4) to a person who purchases merchandise primarily for personal, family or household purposes. The subclass can include plaintiffs who purchased Parkay Spray in Missouri. Montana Plaintiffs seek to pursue claims under the Montana Consumer Protection Act, Mont. Code Section 30-14-103. According to the Act, unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful. Plaintiffs do not address Conagra's arguments that it would be inappropriate to certify a class to proceed under Montana law in this Court when Montana courts would not allow the same. Plaintiffs have not met their burden with regard to Montana. New Jersey Plaintiffs seek to pursue claims under the New Jersey Consumer Fraud Act (CFA). To state a CFA claim, a plaintiff must allege three elements: (1) unlawful conduct (2) an ascertainable loss and (3) a causal relationship between the defendants' unlawful conduct and the plaintiff's ascertainable loss. But plaintiffs' theory of classwide ascertainable loss is that the challenged statements permitted Conagra to charge a premium price for Parkay Spray, and the Supreme Court of New Jersey has rejected this theory in the context of CFA claims. Accordingly, plaintiffs' theory does not entitle them to a presumption of causation under New Jersey law. Plaintiffs do not meet their burden to show that common issues would predominate over individualized inquiries into causation. New York Plaintiffs seek to pursue claims under New York's Deceptive Practices Act. A plaintiff under section 349 must prove three elements: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act. Section 349 does not require individual proof of reliance. In Morrissey, Morrissey v. Nextel Partners, Inc., 895 N.Y.S.2d 580, 588 (2010), the court found that extensive individualized inquiries would be required to determine whether the plaintiffs' unique conversations with sales representatives cured the alleged deception in the standard contract documents. By contrast here, all the representations both the allegedly deceptive ones and the allegedly curative ones were identical. The subclass can include plaintiffs who purchased Parkay Spray in New York. Rhode Island Plaintiffs seek to pursue under the Rhode Island Deceptive Trade Practices Act (RIDTPA). Plaintiffs must establish that he or she is a consumer, and that defendant is committing or has committed an unfair or deceptive act while engaged in a business of trade or commerce. A practice is unfair if one of the following factors is strongly met or two to three are less strongly met: (1) if it violates law or public policy (2) if it is immoral, unethical, oppressive, or unscrupulous and (3) if it causes substantial injury to consumers. Plaintiffs present evidence under all three factors, including that the alleged misrepresentations caused injuries to the class members. Plaintiffs can proceed under Rhode Island law. Vermont Plaintiffs seek to pursue claims under Vermont's Consumer Protection Act (VCPA). Under the Act, a consumer who contracts for goods or services in reliance on false or fraudulent misrepresentations may recover `his or her damages, or the consideration or the value of the consideration given by the consumer. Plaintiffs indicate in their reply chart that they wish to proceed under the ascertainable loss theory rather than the reliance theory. The premium price theory of damages prevents the need for individual proof of damages. The subclass can include plaintiffs who purchased Parkay Spray in Vermont. Washington Plaintiffs seek to pursue under Washington's Consumer Protection Act (WCPA). To prevail on a private CPA claim, a private plaintiff must show (1) an unfair or deceptive act or practice (2) that occurs in trade or commerce (3) a public interest (4) injury to the plaintiff in his or her business or property and (5) a causal link between the unfair or deceptive act and the injury suffered. Accordingly, it is clear that reliance is not necessarily required to show causation, and a district court in Washington has accepted a price inflation theory for purposes of proving this element on a classwide basis. The subclass can include plaintiffs who purchased Parkay Spray in Washington. For these reasons, plaintiffs have met their burden to show that it is appropriate to certify a subclass to pursue claims under laws in the District of Columbia, Florida, Missouri, Montana, New York, Rhode Island, Vermont, and Washington. But with the states eliminated above, plaintiffs lack a class representative who purchased Parkay Spray in any of the states that remain. Without an adequate representative, this subclass cannot proceed. Subclass #4 Plaintiffs seek to certify a class of individuals who purchased Parkay Spray in the following states: California, Georgia, Maryland, Massachusetts, North Carolina, Virginia, West Virginia, and Hawaii, subject to the applicable statutes of limitations. Subclass #4 will pursue claims arising under the following consumer protection statutes. California Plaintiffs seek to pursue claims under California's Unfair Competition Law (UCL). As described above, under California law, questions of materiality and reliance are determined based upon the reasonable consumer standard, not the subjective understandings of individual plaintiffs. The subclass can include plaintiffs who purchased Parkay Spray in California. Georgia Plaintiffs seek to pursue claims under Georgia's Fair Business Practices Act (FBA). The Act bars class actions. Plaintiffs do not address Conagra's arguments that it would be inappropriate to certify a class to proceed under Georgia law in this Court when Georgia courts would not allow the same. Maryland Plaintiffs seek to proceed under the Maryland Consumer Protection Act (MCPA). In Maryland, whether a statement is misleading is judged from the point of view of a reasonable, but unsophisticated consumer. Assessing the availability of classwide proof under the MCPA, a court in the central district of California certified a class after concluding that the MPCA imposes an objective test whereby a plaintiff's reliance on a defendant's omission can be presumed by the materiality of the omitted fact. Given this authority, which is more recent than the cases cited by Conagra, plaintiffs have met their burden to certify a class in Maryland. Massachusetts Plaintiffs seek to proceed under the Massachusetts Consumer Protection Act (CPA). The Act declares unlawful unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. The need for proof of causation does not preclude class certification when there is common evidence of causation. Where the total mix of information made available to each purchaser was distinctive, if not unique, individualized determinations of causation are necessary and will predominate over common issues.In the case at bar, plaintiffs were exposed to the same statements, in terms of both of the alleged misrepresentations and the information that Conagra argues would have cleared up any confusion. This evidence is common across the class. It is appropriate to certify a class of Massachusetts purchasers, but given that the Act requires proof of causation rather than reliance as plaintiffs assert, this state belongs in subclass #3 rather than subclass #4. Given that subclass #3 lacks a class representative, plaintiffs have not met their burden to proceed as a class under Massachusetts law. North Carolina Plaintiffs seek to proceed under North Carolina's Unfair and Deceptive Trade Practices Act (NCUDTPA). Under this Act, a plaintiff must establish actual and reasonable reliance on the defendant's alleged misrepresentation in order to show proximate cause. Conagra argues that the inquiry into each class member's actual reliance will defeat predominance. Plaintiffs responded to Conagra's challenge by moving North Carolina to subclass #4 and noting that they agree that reliance is required for the named plaintiff. Plaintiffs cite no authority for the proposition that the named plaintiff's actual reliance is sufficient for the entire class. As noted above, neither do plaintiffs argue that individualized inquiries into reliance would not defeat predominance. While the Court do not conclude that the requirements of North Carolina law would defeat predominance in every case, plaintiffs in this one have not met their burden. Virginia Plaintiffs seek to proceed under the Virginia Consumer Protection Act (CPA). But class actions are not generally allowed in Virginia. Plaintiffs do not address Conagra's arguments that it would be inappropriate to certify a class to proceed under Virginia law in this Court when Virginia courts would not allow the same. Plaintiffs have not met their burden. West Virginia Plaintiffs seek to proceed under the West Virginia Consumer Credit and Protection Act. Under this Act, plaintiffs must show: (1) unlawful conduct by a seller (2) an ascertainable loss on the part of the consumer and (3) proof of a causal connection between the alleged unlawful conduct and the consumer's ascertainable loss. Plaintiffs justify this grouping by asserting that all of the states have an objective standard for proving classwide reliance, yet they acknowledge that the question is unresolved in West Virginia. Plaintiffs do not cite to authority suggesting that West Virginia would be likely to permit classwide proof, and neither do they meaningfully argue that common issues would still predominate if individual inquiries are necessary. Given these failures, plaintiffs have not met their burden to show that West Virginia belongs in this subclass. Hawaii Plaintiffs seek to proceed under the Hawaii Unfair and Deceptive Trade Practices Act. A deceptive act or practice is (1) a representation, omission, or practice that (2) is likely to mislead consumers acting reasonably under the circumstances where (3) the representation, omission, or practice is material. A representation is material of it is information that is important to consumers and, hence, likely to affect their choice of, or conduct regarding, a product. Given the objective nature of this inquiry, plaintiffs have met their burden to show Hawaii can be part of the class. Plaintiffs have met their burden to show that it is appropriate to certify a subclass to pursue claims under laws in California and Hawaii. Individual State Consumer Protection Subclasses California Plaintiffs seek to certify claims of a California class for violations of (1) California's Consumers Legal Remedies Act (2) California's False Advertising Law and (3) common law claims of fraud, breach of express warranty, and misrepresentation. The CLRA provides relief to any consumer who suffers any damage as a result of the use or employment of any unlawful method, act, or practice. The FAL prohibits not only advertising which is false, but also advertising which, although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public. California's UCL, FAL and CLRA rely on the same objective test, that is, whether members of the public are likely to be deceived. For this reason, district courts in California routinely certify consumer class actions arising from alleged violations of the CLRA, FAL, and UCL. Plaintiffs' California class can proceed. Wisconsin Plaintiffs seek to proceed under the Wisconsin Deceptive Trade Practices Act (WDTPA). The plaintiffs must show: (1) the defendant made a representation to the public with the intent to induce an obligation (2) that the representation was untrue, deceptive or misleading and (3) that the representation caused the plaintiff a pecuniary loss. Conagra cites one case in which the court declined to certify a class because the plaintiff did not identify the standard by which he intended to show that the labels were objectively deceptive or misleading, which led the court to conclude that individualized inquiries would be necessary. By contrast here, plaintiffs will rely on common evidence to prove the labels were objectively deceptive or misleading. Conagra can argue to the jury that any reliance was unreasonable given the list of ingredients and the per serving language on the revised label, but the presence of that information does not preclude certification of a Wisconsin class. Such individualized inquiries into loss will not be necessary here because plaintiffs rely on expert testimony to support their price premium theory. Plaintiffs have met their burden to certify a class of plaintiffs in Wisconsin. Illinois Plaintiffs seek to proceed under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA). Plaintiffs must prove the following: (1) a deceptive act or practice by the defendant (2) the defendant's intent that the plaintiff rely on the deception (3) the occurrence of the deception in the course of conduct involving trade or commerce and (4) actual damage to the plaintiff (5) proximately caused by the deception. The materiality standard is an objective one that inquires whether it is a matter upon which a reasonable person could be expected to rely in determining whether to proceed with the transaction. The conduct of the individual plaintiff is not pertinent. Plaintiffs have met their burden to certify a class of consumers who purchased Parkay Spray in Illinois. Indiana remains part of subclass #6, so there is no need for individual Indiana class. Plaintiffs have not met their burden for Georgia or Ohio. Accordingly, the Court will certify individual state subclasses in California, Wisconsin, Illinois, and Michigan. The Court grants in part and denies in part Plaintiffs’ motion for class certification. A full-text copy of the District Court's July 22, 2019 Order is available at https://tinyurl.com/y658234t from Leagle.com. Erin Allen, on behalf of herself and all others similarly situated, Plaintiff, represented by Adam Gutride -adam@gutridesafier.com -- Gutride Safier LLP, Anthony J. Patek -- anthony@gutridesafier.com -- Gutride Safier LLP, Kristen Gelinas Simplicio -- kristen@gutridesafier.com -- Gutride Safier LLP, Seth A. Safier -- seth@gutridesafier.com -- Gutride Safier LLP & Ureka Ellie Idstrom -uidstrom@eurekalawfirm.com -- The Eureka Law Firm. Ofelia Frechette, Shelley Harder, Deana Marr, Tammie Shawley, Brian Smith & Betty Vazquez, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Anthony J. Patek, Gutride Safier LLP & Kristen Gelinas Simplicio, Gutride Safier LLP. ConAgra Foods, Inc., a Delaware corporation, Defendant, represented by Rachel Elizabeth King Lowe -- rachel.lowe@alston.com -- Alston & Bird, Andrew G. Phillips -- andrew.phillips@alston.com -- Alston & Bird LLP, Angela M. Spivey -- angela.spivey@alston.com -- Alston & Bird LLP, Jamie Smith George -- jamie.george@alston.com -- Alston and Bird LLP, pro hac vice & Patrick E. Brookhouser, Jr., McGrath North Mullin & Kratz, PC LLO, 1601 Dodge Street, Omaha, NE 68102FIRST NATIONAL TOWER. CONSTRUCTION SOLUTIONS: Fields Sues Over Laborers' Unpaid Wages --------------------------------------------------------------- JAMES FIELDS and THOMAS LIBERT, on behalf of themselves and all others similarly situated v. CONSTRUCTION SOLUTIONS OF THE FOX VALLEY LLC, Case No. 1:19-cv-01044-WCG (E.D. Wisc., July 22, 2019), is brought pursuant to the Fair Labor Standards Act of 1938 and Wisconsin's Wage Payment and Collection Laws on behalf of current and former hourly-paid, non-exempt laborers of the Defendant to recover alleged unpaid wages, unpaid overtime and regular wages, liquidated damages, costs, attorneys' fees, and other relief. Construction Solutions of the Fox Valley, is a privately owned construction company headquartered in Neenah, Wisconsin.[BN] The Plaintiffs are represented by: Scott S. Luzi, Esq. WALCHESKE & LUZI, LLC 15850 W. Bluemound Road, Suite 304 Brookfield, WI 53005 Telephone: (262) 780-1953 Facsimile: (262) 565-6469 E-mail: sluzi@walcheskeluzi.com CREATIVE HAIRDRESSERS: Anderson Seeks Over Unpaid Overtime Wages ---------------------------------------------------------------- India Anderson, individually, and on behalf of others similarly situated, Plaintiff, v. Creative Hairdressers, Inc. And Ratner Companies, LLC, Defendants, Case No. 19-cv-00041 (W.D. Va., July 17, 2019), seeks to recover unpaid overtime wages, liquidated damages and declaratory relief pursuant to the Fair Labor Standards Act. Creative Hairdressers operate as Hair Cuttery where Anderson worked as a hairdresser. She claims overtime for hours worked in excess of forty in a workweek at a rate less than time-and-a-half of her regular rate of pay.[BN] Plaintiff is represented by: Curtis Daniel Cannon GOLDBERG & FINNEGAN, LLC 8401 Colesville Road, Suite 630 Silver Spring, MD 20910 Tel: (301) 589-2999 Fax: (301) 589-2644 Email: ccannon@goldbergfinnegan.com - and - Nicholas Conlon, Esq. BROWN, LLC 111 Town Square Place, Suite 400 Jersey City, NJ 07310 Tel: (877) 561-0000 Fax: (855) 582-5297 Email: nicholasconlon@jtblawgroup.com CRYSTAL ENTERPRISES: Underpays Production Managers, Backman Says ---------------------------------------------------------------- KATHLEEN BACKMAN, individually and on behalf on behalf of all others similarly situated, Plaintiff v. CRYSTAL ENTERPRISES, INC., Defendant, Case No. 2:19-cv-04312 (E.D.N.Y., July 26, 2019) is an action against the Defendant's failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. The Plaintiff Backman was hired by the Defendant as production manager. Crystal Enterprises, Inc. operates theme park facilities. The Company provides child care, dining, spa, fitness center, meeting room, wedding celebration, and related services. Crystal Enterprises serves customers in the State of Michigan. [BN] The Plaintiff is represented by: Jeffrey R. Maguire, Esq. Alexander T. Coleman, Esq. Michael J. Borrelli, Esq. BORRELLI & ASSOCIATES, P.L.L.C. 655 Third Avenue, Suite 1821 New York, NY 10017 Telephone: (212) 679-5000 Facsimile: (212) 679-5005 CVS HEALTH: Staff Labor Suit Removed to E.D. Cal. ------------------------------------------------- The case captioned Abel Cachola, Hardeep Dhillon, Misty Baily, Shivjot Pabla, Devonna Gilmore, Michael Manzone, Pauline Mikhail, Felicia Ivy, Randall Radke, Dayna Bowles, Melanie Jipp, Lorna Ruse, Marisol Baez, William Shafer, Rachel Goff, Bre Michaels, Margee Mae Dela Cruz, Tangerine Ponchione, Sonal Sehgal, Maikel Nagib, John Hadi, Jeanny Keota, Sharika Williams, Shaina Larmore, Tina Rodriguez, Debbie Schultz, Kim M. Rose, Mary Albana, Jessica Xe, Daniel Rivera II, Rafaelita Adjei, Samantha Andrews, Aryan Rabbani, Brianna Bertrand, Celia Carton, Jose L. Delgado, Liz Bennett, Michelle Perez, Michelle Dias, Diane Kim, Kyrollos Mekail, Saravie You, Elisha N. Pennington, Dion R. Lorusso, Maria M. Lorusso, Kaitlyn Holdren, Amaris B. Lane, Joe Martinez, Nikkolae V. Jacinto, Jessica Hernandez, Erin Riffle, Craig Jensen, Robert M. Wilson, Daniel Setiawan, Yvonne Martinez, Ahmed Hegazy, Leila Vanderwerff, Roxanna Hernandez, Nicole Kotecki, Mitchell Woothen, Steven Chalker, Maisha Cherry, Lyna Le and Mahran Izoli, individually and on behalf of all others similarly situated v. CVS Health Corporation, CVS RX Services, Inc., CVS Pharmacy, Inc., Garfield Beach CVS, LLC and Does 1 through 50, Defendants, Case No. 34-2019-00256809 (Cal. Super., July 19, 2019), was removed to the U.S. District Court for Eastern District of California on July 19, 2019, under Case No. 19-cv-01362. Epstein seeks redress for failure to provide meal periods, rest periods, minimum wages, overtime, complete and accurate wage/leave statements, reimbursement of business-related expenses and resulting from unfair business practices, waiting time penalties for unpaid wages due upon termination and in violation of the California Labor Code, California Business and Professions Code, including declaratory relief, damages, penalties, equitable relief, costs and attorneys' fees. Plaintiffs are pharmacists, pharmacist interns, pharmacy technicians, cashiers, customer service representatives, home health care specialists, shift managers, store and/or operations managers who worked for CVS stores.[BN] Plaintiff is represented by: Jacob N. Whitehead, Esq. WHITEHEAD EMPLOYMENT LAW 15615 Alton Pkwy, Suite 175 Irvine, CA 92618 Telephone: (949) 936-4001 Facsimile: (949)450-1588 Email: jacob@jnwpc.com Defendants are represented by: Michael D. Weil, Esq. ORRICK, HERRINGTON & SUTCLIFFE LLP The Orrick Building 405 Howard Street San Francisco, CA 94105 Telephone: (415) 773-5700 Facsimile: (415) 773-5759 Email: mweil@orrick.com DALLAS, TX: Prelim Injunction Bid as to Section 552.007 Granted --------------------------------------------------------------- In the case, YVETTE GBALAZEH, et al., Plaintiffs, v. CITY OF DALLAS, TEXAS, a municipality of the State of Texas, Defendant, Civil Action No. 3:18-CV-0076-N (N.D. Tex.), Judge David C. Godbey of the U.S. District Court for the Northern District of Texas, Dallas Division, granted the Plaintiffs' motion for preliminary injunction as to Texas Transportation Code Section 552.007. The Judge addresses Plaintiffs Gbalazeh, Lee Sunbury, and Fred Sims' application for preliminary injunction. By previous Order, the Court denied the Plaintiffs' motion with respect to their challenges to sections 31-35 and 28-63.3 of the Code of Ordinances of the City of Dallas. The Court reserved judgement on the Plaintiffs' challenge to section 552.007 until after the Texas Attorney General had an opportunity to intervene, pursuant to Federal Rule of Civil Procedure 5.1. The 60-day period outlined in Rule 5.1(c) has elapsed and the Attorney General has not intervened. The Court thus has authority to rule on the Plaintiffs' challenge to section 552.007. The case is about the enforcement of three panhandling laws in Dallas, Texas. The Court addressed the first two, Dallas Ordinances Sections 31-35 and 28-63.3, in its previous Order. Now, it addresses the third: section 552.007. Section 552.007 prohibits a person standing in a roadway to solicit a ride, contribution, employment, or business from an occupant of a vehicle. The statute makes a single exception for individuals that have gained the permission of local government to solicit charitable contributions, i.e., local fire departments' "fill the boot" campaigns. The Plaintiffs allege that they have been cited under section 552.007 and that it violates their First and Fourth Amendment rights. Judge Godbey holds that the Plaintiffs are likely to succeed on the merits of their First Amendment challenge to section 552.007. A regulation is content based if it applies to particular speech because of the topic discussed or the idea or message expressed. Section 552.007 is a content based restriction. The ordinance does not stop individuals from standing in the roadway to advocate for a political campaign or church. But once the speakers begin to offer or ask for something from drivers, their speech runs afoul of section 552.007. Indeed, of the various forms of protected speech, the statute picks and prohibits only solicitation, and makes an explicit exception for pre-approved charitable solicitations. Accordingly, the Judge holds that section 552.007 is a content based restriction on speech. The Plaintiffs have also shown a risk of irreparable injury. The loss of First Amendment freedoms, for even minimal amounts of time, unquestionably constitutes irreparable injury. The Judge holds that section 552.007 poses a threat to the Plaintiffs' First Amendment rights. Thus, the Plaintiffs have shown a threat of irreparable injury. In light of this, the balance of harms tilts in favor of an injunction. The City argues that preventing enforcement of section 552.007 will render it unable to sufficiently protect against traffic hazards. The Judge disagrees. The City has other laws it can use to protect against traffic hazards in the interim that do not risk citing and arresting people under a potentially unconstitutional law. As to the public interest, it is always in the public interest to prevent the violation of a party's constitutional rights. The enforcement of section 552.007 potentially violates First Amendment rights. As such, the Judge finds an injunction to be consistent with the public interest. For the reasons stated, Judge Godbey granted the Plaintiffs' motion for preliminary injunction as to section 552.007. The Court exercised its discretion under Federal Rule of Civil Procedure 65(c) to waive the bond requirement, as the Plaintiffs are engaged in "public-interest litigation" to protect their constitutional rights. The relief will take effect 30 days from the date of the Order. A full-text copy of the Court's June 25, 2019 Memorandum Opinion and Order is available at https://is.gd/rCdqif from Leagle.com. Yvette Gbalazeh, Lee Sunbury & Fred Sims, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Ramon de Jesus Rodriguez -- Ramon@rrtxlaw.com -- Murphy Rodriguez, PLLC & Christopher S. Murphy, Murphy Rodriguez, PLLC. City of Dallas Texas, a municipality of the State of Texas, Defendant, represented by Sonia Tahira Ahmed, City of Dallas Attorney's Office, Justin Henry Roy, Dallas City Attorney's Office & Kathleen MacInnes Fones, Dallas City Attorney's Office. DEMARK INC: Bid to Certify Class in Griffin Suit Denied as Moot --------------------------------------------------------------- The Honorable Charles P. Kocoras denied as moot the motion to certify class in the lawsuit entitled John Griffin, et al. v. Demark, Inc., Case No. 1:18-cv-00979 (N.D. Ill.).[CC] DIVYA DRISHTI: Fails to Pay Minimum, Overtime Wages, Peralta Says ----------------------------------------------------------------- TAURINA BONILLA PERALTA and SUSANA GEORGINA GUILLCA, individually and on behalf of others similarly situated v. DIVYA DRISHTI LLC (D/B/A LENOX SPA & NAILS) and ARCHANA POKHREL (A/K/A DAISY), Case No. 1:19-cv-06762 (S.D.N.Y., July 19, 2019), alleges that under both the Fair Labor Standards Act and New York Labor Law, the Plaintiffs are entitled to minimum and overtime wages, and applicable liquidated damages. Divya Drishti LLC, doing business as Lenox Spa & Nails, is a domestic corporation organized and existing under the laws of the state of New York. The Individual Defendant serve or served as owner, manager, principal, or agent of the Defendant Corporation. The Defendants owned, operated, or controlled a nail salon, located at 1051 Third Avenue, in New York City, under the name "Lenox Spa & Nails." The Plaintiffs were employed as manicurists and pedicurists at the salon.[BN] The Plaintiffs are represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: Michael@Faillacelaw.com DURHAM D&M: Removes Gardner Labor Class Suit to C.D. California --------------------------------------------------------------- Defendant Durham D&M LLC removed on July 22, 2019, the lawsuit titled PENNY GARDNER, as an individual and on behalf of all others similarly situated v. DURHAM D&M LLC; and DOES 1 through 50 inclusive, Case No. CIVDS1917372, from the Superior Court of the State of California for the County of San Bernardino County to the U.S. District Court for the Central District of California. The District Court Clerk assigned Case No. 5:19-cv-01344 to the proceeding. Plaintiff Penny Gardner filed this complaint in the Superior Court on June 12, 2019. The Plaintiff asserts one cause of action in her PAGA Complaint against the Defendant: "Violation of Cal. Labor Code Section 2698, et seq." The Complaint "seeks penalties on behalf of all Aggrieved Employees from April 10, 2018, through the present, for Defendant's violations of Labor Code section 204."[BN] Defendant DURHAM D&M LLC is represented by: Jon D. Meer, Esq. Michael Afar, Esq. Jared W. Speier, Esq. SEYFARTH SHAW LLP 2029 Century Park East, Suite 3500 Los Angeles, CA 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 E-mail: jmeer@seyfarth.com mafar@seyfarth.com jspeier@seyfarth.com DUVAL COUNTY, FL: Schatzel Files Civil Rights Suit v. School Board ------------------------------------------------------------------ A class action lawsuit has been filed against Duval County School Board/District. The case is styled as Richard E. Schatzel Individually (parens Patraie), John Does, Jane Does Individually, And all those similarly situated, Plaintiffs v. Duval County School Board/District Officially, Leslie Russell and successors Officially, Alicia G. Officiially, individually, D.B.A./Durham School Bus Services also known as: Durham D&M LP, John Zeigler and successor(s) Officially, Lisa Burkert Officially, Doreen Sams and successor Officially, D.B.A./International Brotherhood of Teamsters (IBT) Local 512, Jim Shirling Officially, Individually, Stewart Cauthan Officially, Defendant, Case No. 3:19-cv-00888-MMH-PDB (M.D. Fla., July 31, 2019). The nature of suit is stated as Other Civil Rights. Duval County Public Schools is the 20th largest school district in the nation and the sixth largest school district in Florida.[BN] The Plaintiffs appear pro se. EAGLE CREEK: Dennis Claims Website Not Blind-Friendly ----------------------------------------------------- Derrick U. Dennis, on behalf of himself and all others similarly situated, Plaintiffs, v. Eagle Creek, Inc., Defendant, Case No. 19-cv-06674, (S.D. N.Y., July 17, 2019) seeks preliminary and permanent injunction, compensatory, statutory and punitive damages and fines, prejudgment and post-judgment interest, costs and expenses of this action together with reasonable attorneys' and expert fees and such other and further relief under the Americans with Disabilities Act, New York State Human Rights Law and New York City Human Rights Law. Defendant operates a commercial website, www.eaglecreek.com.com, which markets and sells outdoor gear. Plaintiff is legally blind and claims that Defendant's website cannot be accessed by the visually-impaired. [BN] Plaintiff is represented by: Jonathan Shalom, Esq. SHALOM LAW, PLLC. 124-04 Metropolitan Avenue Kew Gardens, NY 11415 Tel: (718) 971-9474 Fax: (718) 865-0943 Email: Jshalom@JonathanShalomLaw.com EQUIFAX INFORMATION: Bruno FCRA Suit Dismissed With Prejudice ------------------------------------------------------------- In the case, DANIEL BRUNO, Individually and on behalf of others similarly situated, Plaintiff, v. EQUIFAX INFORMATION SERVICES, LLC; GENEVA FINANCIAL SERVICES, INC.; MARK HASSAN; GENEVA MOTORS, INC. d/b/a GENEVA FINANCIAL SERVICES, ROBERT MCGINLEY, KAMIES ELHOUTY, JOHN MCGINLEY, ANDY MITCHELL, and REBS SUPPLY, INC. d/b/a REBS MARKETING, INC., Defendants, Case No. 2:17-cv-00327-WBS-EFB (E.D. Cal.), Judge William B. Shubb of the U.S. District Court for the Eastern District of California dismissed with prejudice all the claims for relief as they pertain to Equifax only. The Stipulation of Dismissal will not affect the Plaintiff's claims against any party other than Equifax. The Plaintiff and Equifax will bear their own costs, including attorneys' fees, with respect to the dismissed claims. A full-text copy of the Court's June 25, 2019 Order is available at https://is.gd/PXMZxs from Leagle.com. Daniel Bruno, Individually and on behalf of others similarly situated, Plaintiff, represented by James Louis Kohl -- jamesk.legal@gmail.com -- Law Offices Of James Louis Kohl & Joseph Messer, Messer Strickler, Ltd., pro hac vice. Geneva Financial Services, LLC, John McGinley & Robert McGinley, Defendants, represented by Rebecca Dena Wester -- rdj@smbgroup.com -- Law Offices of Henry N. Jannol, APC. Geneva Financial Services, Inc. & Mark Hassan, Defendants, represented by Neil C. Evans, Law Office of Neil C. Evans. Geneva Motors, Inc., Doing business as Geneva Financial Services & Kamies Elhouty, Defendants, represented by Craig Richard Smith, Smith Law Firm. EVENTBRITE INC: Barbieri Sues Over Text Ads re Cinco De Mayo Fest ----------------------------------------------------------------- ADRIANA BARBIERI, individually and on behalf of all others similarly situated v. EVENTBRITE, INC., and SWARM INC., Case No. 0:19-cv-61825-XXXX (S.D. Fla., July 21, 2019), alleges violations of the Telephone Consumer Protection Act relating to text messages sent by the Defendants in connection with, and to otherwise promote and market, a Cinco De Mayo music festival and/or concert scheduled for May 4-5, 2019, in Miami, Florida. Eventbrite is a Delaware corporation, with a principal office located in San Francisco, California. Eventbrite operates as a platform as a service company. The Company offers a platform that allows users to provide online event planning services, as well as publishes, promotes, and sells tickets through social networks and e-mails. Swarm is a Florida corporation, with a principal office located in Miami, Florida. The Defendants directs, markets, and controls their online businesses in the United States.[BN] The Plaintiff is represented by: Jibrael S. Hindi, Esq. Thomas J. Patti, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th Street, Suite 1744 Fort Lauderdale, FL 33301 Telephone: (954) 907-1136 Facsimile: (855) 529-9540 E-mail: jibrael@jibraellaw.com tom@jibraellaw.com EVERALBUM INC: Figueroa Appeals N.D. Cal. Decision to 9th Circuit ----------------------------------------------------------------- Plaintiffs Gabrielle Figueroa and Daisy Franklin filed an appeal from a Court ruling in their lawsuit styled Gabrielle Figueroa, et al. v. Everalbum, Inc., Case No. 4:17-cv-05909-JSW, in the U.S. District Court for the Northern District of California, Oakland. The nature of suit is stated as consumer credit. The appellate case is captioned as Gabrielle Figueroa, et al. v. Everalbum, Inc., Case No. 19-16442, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellants Gabrielle Figueroa and Daisy Franklin's opening brief is due on September 18, 2019; -- Appellee Everalbum, Inc.'s answering brief is due on October 18, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants GABRIELLE FIGUEROA and DAISY FRANKLIN, on behalf of themselves and others similarly situated, are represented by: Jonathan Edward Fortman, Esq. LAW OFFICE OF JONATHAN E. FORTMAN, LLC 250 St. Catherine Street Florissant, MO 63031 Telephone: (314) 522-2312 E-mail: jef@fortmanlaw.com - and - Steve A. Miller, Esq. STEVE A. MILLER, P.C. 1625 Larimer Street Denver, CO 80202 Telephone: (303) 892-9933 E-mail: sampc01@gmail.com - and - Robert W. Thompson, Esq. THOMPSON LAW OFFICES, P.C. 700 Airport Boulevard, Suite 160 Burlingame, CA 94010 Telephone: (650) 513-6111 E-mail: bobby@tlopc.com Defendant-Appellee EVERALBUM, INC. is represented by: Nathan M. McClellan, Esq. DECHERT LLP 633 West 5th Street, Suite 4900 Los Angeles, CA 90071 Telephone: (213) 808-5758 E-mail: nathan.mcclellan@dechert.com - and - Christina Sarchio, Esq. DECHERT LLP 1900 K Street, NW Washington, DC 20005 Telephone: (202) 261-3465 E-mail: christina.sarchio@dechert.com - and - Lily North, Esq. BENESCH FRIEDLANDER COPLAN & ARONOFF LLP One Montgomery, Suite 2700 San Francisco, CA 94104 Telephone: (628) 600-2238 E-mail: lnorth@beneschlaw.com EXPEDIA INC: Court Narrows Claims in Woodell Suit ------------------------------------------------- The United States District Court for the Western District of Washington, Seattle, issued an Order granting in part and denying in part Defendants' Motion to Dismiss in the case captioned PATRICIA WOODELL, Plaintiff, v. EXPEDIA INC., et al., Defendants. Case No. C19-0051JLR. (W.D. Wash.). Before the court is Defendants Expedia, Inc. (Expedia), EAN.com, LP (EAN), Travelscape, LLC (Travelscape), and Hotels.com, L.P.'s (Hotels.com) (Defendants) motion to dismiss Plaintiff Patricia Woodell's putative class action complaint. Ms. Woodell alleges that contrary to Reservations.com's representations and/or the expectations of consumers, the 'Taxes & Fees' charged by Defendants are not the actual taxes and fees remitted to governmental authorities but contain additional amounts surreptitiously added by Defendants (the tax overcharge). Ms. Woodell generally alleges that Defendants populate the room rates and Taxes & Fees fields on the Reservation.com website and unlawfully collect and retain the Taxes & Fees' overcharge. Ms. Woodell brings a claim under the Racketeer Influenced and Corrupt Organizations Act (RICO). In addition to her RICO claim, Ms. Woodell asserts a claim for violation of Washington's Consumer Protection Act (CPA). She also asserts equitable claims of conversion, unjust enrichment and constructive trust. RICO Under RICO, a plaintiff must allege that the defendant participated in the conduct of an enterprise through a pattern of racketeering activity that proximately caused the plaintiff's harm. Defendants argue that Ms. Woodell's RICO claim fails because she inadequately alleges the following elements: (1) any racketeering activity (2) a pattern of such activity (3) an enterprise (4) that Defendants directed the conduct of an enterprise and (5) proximate causation. The court will consider each of these elements in turn. Racketeering Activity Ms. Woodell bases her RICO claim on mail and wire fraud as the alleged underlying racketeering activity. The Defendants argue that Ms. Woodell fails to plead Defendants' alleged racketeering activity mail and wire fraud violations with sufficient particularity. The mail and wire fraud statutes are identical except for the particular method used to disseminate the fraud, and contain three elements: (A) the formation of a scheme to defraud (B) the use of the mails or wires in furtherance of that scheme and (C) the specific intent to defraud. Mail Fraud Nowhere in her complaint does Ms. Woodell allege any specific use of the mails in furtherance of a fraudulent scheme. At most, she generally alleges: Defendants and Reservations.com violated 18 U.S.C. Section 1341 by sending and receiving, and by causing to be sent and/or received, materials via U.S. Mail or commercial interstate carriers for the purpose of executing the unlawful scheme to design, manufacture, market, and sell hotel room reservations by means of false pretenses, misrepresentations, promises, and omissions. General allegations concerning the use of the mails is insufficient. Accordingly, the court dismisses Ms. Woodell's RICO claim predicated on the alleged racketeering activity of mail fraud. Wire Fraud The court next considers the adequacy of Ms. Woodell's pleading concerning the alleged racketeering activity of wire fraud. Specifically, Ms. Woodell alleges that the Taxes & Fees' charged on the Reservations.com website are pass-through items established and collected by Expedia. She also alleges that the amount charged by Expedia on Reservations.com bookings as Taxes & Fees' is significantly more than the sum actually owed to the government for 'applicable taxes, government fees, and other charges' that he hotels must pay to the government. She further alleges, on information and belief, that Expedia pockets the tax overcharge as additional profit (above and beyond the markup' it already makes on the room price. Finally, she alleges that this scheme has been repeated millions of times through the Reservations.com website. These allegations meet the Rule 9(b) pleading requirement of sufficient particularity for asserting a predicate act of wire fraud in a RICO claim against Expedia. In other portions of the complaint, however, Ms. Woodell charges Defendants collectively with this same conduct. At a minimum, a plaintiff must identify the role of each defendant in the alleged fraudulent scheme. Thus, although Ms. Woodell's specific allegations concerning Expedia are sufficient, her generalized allegations lumping the three remaining Defendants together with respect to the same conduct are not. Ms. Woodell counters that the Rule 9(b) standard may be relaxed as to matters within the opposing party's knowledge. She also argues that she alleges with specificity the roles each Defendant played as follows: For Travelscape, she alleges that it contracts with hotel properties for room inventory at wholesale prices, which, in turn, is offered for sale by Reservations.com. She also alleges that Travelscape administers payments for reservations" made through Reservations.com For EAN, she alleges that it contracts with Reservations.com to provide third parties with hotel room inventory obtained by Expedia, Travelscape, and Hotels.com. For Hotels.com, Ms. Woodell alleges that it provides room inventory to Reservations.com and/or collects monies paid for room reservations sold by Reservations.com. However, the relaxation of the Rule 9(b) particularized pleading requirement for matters within the opposing party's knowledge does not nullify Rule 9(b). Indeed, a plaintiff who makes allegations on information and belief must state the factual basis for this belief. Alleging no more than suspicious circumstances is insufficient. Here, Ms. Woodell has not even alleged suspicious circumstances with respect to Travelscape, EAN, and Hotels.com. The specific conduct she alleges regarding each of these Defendants does not inform them of their alleged participation in the fraud, which in this case is Expedia's purported misrepresentation on Reservations.com's website regarding the Taxes & Fees charge. Rather, her allegations describe nothing more than legitimate business conduct contracting for hotel room inventory at wholesale prices and administering payments for reservations. Accordingly, the court concludes that Ms. Woodell has failed to plead wire fraud as a predicate act for her RICO claim with sufficient particularity to satisfy Rule 9(b) for Defendants Travelscape, EAN, and Hotels.com and, therefore, grants Defendants' motion with respect to these Defendants. RICO Enterprise Defendants also argue that Ms. Woodell fails to adequately allege a RICO Enterprise. RICO enterprises come in two varieties: (1) an association-in-fact or (2) a legal entity. An association-in-fact is a group of persons associated together for a common purpose of engaging in a course of conduct. A legal entity applies to the infiltration of legitimate businesses the enterprise by racketeers the defendants. Ms. Woodell alleges both types of enterprises in the alternative. Association-in-fact To plead an association-in-fact enterprise, Ms. Woodell must allege that the association-in-fact: (1) has a common purpose (2) is an ongoing organization and (3) its various associates function as a continuing unit. Further, Ms. Woodell must allege that the group engaged in enterprise conduct distinct from their own affairs. Ms. Woodell alleges that Defendants and Reservations.com formed an association-in-fact enterprise. As discussed below, Ms. Woodell fails to adequately allege that this putative association-in-fact has a common purpose. Ms. Woodell pleads that Defendants and Reservations.com associated for the common purpose of obtaining tax overpayments from consumers. However, this and other similar, conclusory allegations fall short of the pleading standard. Except for the allegation that Expedia established and collected the Taxes & Fees charge as pass-through line items on Reservations.com's website, the complaint contains no specific factual allegations that any other Defendant acted with an objective unrelated to ordinary business aims. Ms. Woodell's formulaic, conclusory allegations concerning these Defendants4 are insufficient to create facial plausibility concerning an association-in-fact. Indeed, Ms. Woodell admits in her complaint that the alleged enterprise functioned by selling hotel room reservations to the consuming public and that such bookings are legitimate transactions. Allegations that are consistent with ordinary business activities or purposes are insufficient when pleading an association-in-fact RICO enterprise. Where the alleged association-in-fact is formed through routine contracts for services, the common purpose element is unmet because the entities are pursuing their own individual economic interests, rather than a shared purpose. Based on the foregoing authorities, the court concludes that Ms. Woodell fails to adequately allege a common purpose for her association-in-fact. Accordingly, the court grants this portion of Defendants' motion. Legal Entity Ms. Woodell alternatively argues that non-party Reservations.com is a single legal entity enterprise through which Defendants conducted a pattern of racketeering activity. Insofar as 18 U.S.C. Section 1961(4) defines an enterprise to include any partnership, corporation or other legal entity, Ms. Woodell is correct. Accordingly, the court denies this portion of Defendants' motion. The difficulty with this allegation, however, arises in the next element of Ms. Woodell's RICO claim namely, whether Defendants conducted or participated, directly or indirectly, in the conduct of such enterprise's affairs. Directed the Conduct of a RICO Enterprise The conduct element of a RICO claim requires Ms. Woodell to allege that a defendant has some part in the directing of the enterprise's affairs. Ms. Woodell fails to allege facts supporting a plausible theory that Defendants participated in the conduct of the enterprise's affairs, not just their own affairs. Once again, at most, Ms. Woodell alleges that Expedia establishes and collects the Taxes & Fees charge as pass-through line items on Reservations.com's website. This alleged action does not amount to participation in the operation or management of Reservations.com as a legal entity enterprise or Ms. Woodell's alleged association-in-fact enterprise. This is particularly so in light of her allegations that Reservations.com hosts its own website, does its own marketing of its services and obtains its inventory of hotel reservations through multiple third-party suppliers and not just through Defendants. Ms. Woodell's remaining allegations are all too general and conclusory to meet the pleading standard and raise this element of her claim from the merely possible to the plausible. Specifically, Ms. Woodell has not adequately alleged that Defendants' actions were undertaken on behalf of the enterprise as opposed to on behalf of Defendants in their individual capacities, to advance their individual self-interests. In Walgreen, an employee health benefit fund alleged that a pharmaceutical company and drug manufacturer engaged in a scheme to defraud insurers by filling prescriptions for generic drugs with more expensive dosages than prescribed, in violation of RICO. The Walgreencourt, United Food & Commercial Workers Unions & Emp'rs. Midwest Health Benefits Fund v. Walgreen Co., 719 F.3d 849, 854 (7th Cir. 2013), explained that the complaint did not allege, for instance, that officials from either company involved themselves in the affairs of the other, among other things, but instead defendants' interactions showed only that the defendants had a commercial relationship. The court finds this analysis persuasive here and concludes that Ms. Woodell fails to adequately allege that Defendants directed the affairs of a RICO enterprise. Accordingly, the court grants this portion of Defendants' motion. Proximate Causation A plaintiff may sue under RICO only if the alleged RICO violation was the proximate cause of the plaintiff's injury. Ms. Woodell alleges that a reasonable consumer would expect that a charge for Taxes & Fees would consist of amounts imposed by taxing authorities. She alleges that she was overcharged $8.31 because she paid $14.82 in Taxes & Fees when only $6.51 was due to the government. However, she does not allege that she read or even noticed the Taxes & Fees charge at the time she made her reservation. She does not allege that the charge would have affected her transaction if she had noticed it or what she would have interpreted the phrase to mean if she had seen it. She does not allege that she would not have completed the transaction had she understood that not all of the $14.82 listed under Taxes & Fees would be paid to a governmental entity or that a portion of the $14.82 would be retained by Expedia. In short, she does not plead that, except for the alleged misrepresentation concerning Taxes & Fees, she would not have suffered an injury. As a result, the court concludes that Ms. Woodell fails to adequately allege proximate cause. Because Ms. Woodell fails to adequately plead that her $8.31 injury was proximately caused by Defendants' purported RICO violation, the court grants Defendants' motion and dismisses her RICO claim. CPA Claim To state a claim under the CPA, Ms. Woodell must allege: (1) an unfair or deceptive act or practice (2) occurring in trade or commerce (3) affecting the public interest (4) injury to a person's business or property, and (5) causation. Defendants argue that Ms. Woodell fails to adequately plead the first, third, and fifth elements. Unfair or Deceptive Act An unfair or deceptive act is one undertaken with a capacity to deceive a substantial portion of the public.Ms. Woodell relies on the same factual allegations to underpin her CPA claim as she does to underpin her RICO claim alleged misrepresentation regarding Taxes & Fees. Thus, just as Rule 9(b)'s heightened pleading standard applies to Ms. Woodell's allegations concerning mail and wire fraud, those same heightened pleading standards apply to Ms. Woodell's allegations of the unfair or deceptive act underpinning her CPA claim. For example, in Fidelity Mortgage Corp. v. Seattle Times Co., 213 F.R.D. 573 (W.D. Wash. 2003), the plaintiff claimed that the defendant violated the CPA by publishing false, deceptive, and/or misleading Interest Rates. The court explained that, even with regard to complaints that do not specifically plead fraud, the Ninth Circuit has consistently held that cases that are grounded in fraud' or sound in fraud' must satisfy the particularity requirement of Rule 9(b). Thus, although Ms. Woodell avoids using the term fraud in describing her CPA claim her CPA allegations are still governed by the heightened Rule 9(b) standard. The court agrees with Ms. Woodell that the alleged mislabeling of the Taxes & Fees charge could constitute an unfair or deceptive act under the CPA. However, although Ms. Woodell pleads with particularity Expedia's involvement in this alleged deceptive act, her collective and generalized allegations concerning the remaining Defendants are insufficient under Rule 9(b). Thus, for the same reasons that the court concluded that Ms. Woodell's allegations concerning the alleged Taxes & Fees misrepresentation meet Rule 9(b)'s pleading requirements for her RICO claims against Expedia, but not for her RICO claim against the other Defendants, the court also so concludes here concerning this element of her CPA claim. Impact on the Public Interest Ms. Woodell can establish impact on the public interest by showing that the conduct injured other persons, or even "had the capacity to injure other persons. The court agrees with Ms. Woodell that she has not alleged an essentially private dispute. Rather, she has alleged hundreds of thousands of similar transactions using the same alleged Taxes & Fees misrepresentation. These allegations are sufficient to meet this element of her CPA claim. The court, therefore, denies this portion of Defendants' motion. Proximate Causation Proximate cause is a required element of a CPA claim. As noted above in the court's discussion of proximate causation of Ms. Woodell's RICO claim, Ms. Woodell does not allege that she read or even noticed the Taxes & Fees charge, that the phrase would have affected her booking had she noticed it, what she would have interpreted the phrase to mean had she seen it, that she would not have completed the booking had she understood that Expedia would retain a portion of the amount listed as Taxes & Fees, or that she would have taken any other course of action other than the one she did. In other words, she does not allege that, except for Defendants' alleged deceptive act, the outcome of her booking would have been any different. Just as the court concluded that Ms. Woodell failed to plead proximate cause for her RICO claim, the court similarly concludes that she fails to plead proximate cause for her CPA claim, as well. The court concludes that Ms. Woodell has not adequately alleged proximate causation for her CPA claim and, therefore, grants this portion of Defendants' motion. Conversion Defendants assert that Ms. Woodell's claim for conversion should be dismissed because an 'authorized' payment by the payor is not the proper subject of the tort of conversion under Washington law. Ms. Woodell does not respond to this portion of Defendants' motion and, indeed, implicitly concedes that Defendants' motion to dismiss her conversion claim has merit. Accordingly, the court grants this aspect to Defendants' motion and dismisses Ms. Woodell's claim for conversion with prejudice and without leave to amend. Unjust Enrichment and Constructive Trust The elements of a claim for unjust enrichment are: (1) a benefit conferred upon the defendant by the plaintiff (2) an appreciation or knowledge by the defendant of the benefit and (3) the acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without the payment of its value The court disagrees. The elements Ms. Woodell must allege for her RICO and CPA claims are distinct from her unjust enrichment and constructive trust claims. She need not allege either a RICO or a CPA claim to allege circumstances rendering inequitable Defendants' retention of the funds at issue for purposes of her unjust enrichment claim. Similarly, she need not allege either a RICO or a CPA claim to adequately plead a claim for constructive trust. For a constructive trust, Ms. Woodell only needs to allege some element of wrongdoing. Further, although such wrongdoing is ordinarily found in the form of fraud, misrepresentation, or bad faith, equity's need for flexibility requires that wrongdoing not be so limited. However, to state a claim for either unjust enrichment or constructive trust, Ms. Woodell must allege that the defendant retains the benefit or holds title to the property, respectively. Here, Ms. Woodell specifically alleges that Expedia pockets the tax overcharge. Although Ms. Woodell also alleges that Defendants retained these funds and Defendants retained the overcharge as extra revenue these generalized, collective allegations do not move her claims against EAN, Travelscape, and Hotels.com from the mere possible to the plausible particularly given her specific allegations concerning Expedia. The court grants Defendants' motion to dismiss Ms. Woodell's equitable claims for unjust enrichment and constructive trust against EAN, Travelscape, and Hotels.com, but denies it with respect to Expedia. Accordingly, the court grants in part and denies in part the Defendants' motion to dismiss. The court dismisses Ms. Woodell's claim for conversion with prejudice and without leave to amend. The court dismisses her RICO and CPA claims but grants her leave to amend these claims. The court dismisses her equitable claims for unjust enrichment and constructive trust against EAN, Travelscape, and Hotels.com but grants her leave to amend these claims. A full-text copy of the District Court's July 22, 2019 Order is available at https://tinyurl.com/yxtnxjoq from Leagle.com. Patricia Woodell, individually and on behalf of all others similarly situated, Plaintiff, represented by Andrew M. Volk -- andrew@huppertpc.com -- HAGENS BERMAN SOBOL SHAPIRO LLP, Ian W. Freeman -- Freeman@WGFLLAW.com -- WALKER GRESSETTE FREEMAN LINTON LLC, pro hac vice, James L. Ward, Jr., MCGOWAN HOOD & FELDER LLC, 1517 Hampton Street, Columbia, SC 29201, pro hac vice, John P. Linton, Jr. -- Linton@WGFLLAW.com -- WALKER GRESSETTE FREEMAN LINTON LLC, pro hac vice, Ranee Saunders, MCGOWAN HOOD & FELDER LLC, 1517 Hampton Street. Columbia, SC 29201, pro hac vice, Ted Wojcik -- tedw@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO LLP, pro hac vice, Jessica Thompson, HAGENS BERMAN SOBOL SHAPIRO LLP, Shayne C. Stevenson -- shaynes@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO LLP & Steve W. Berman -- steveb@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO LLP. Expedia Inc, EAN.com LP, Travelscape LLC & Hotels.com LP, Defendants, represented by Emily Dodds Powell -- emilyp@calfoeakes.com -- CALFO EAKES & OSTROVSKY PLLC, Patricia A. Eakes -- pattye@calfoeakes.com -- CALFO EAKES & OSTROVSKY PLLC & Angelo J. Calfo -- angeloc@calfoeakes.com -- CALFO EAKES & OSTROVSKY PLLC. EXTREME NETWORKS: $7MM Class Settlement in Securities Suit OK'd --------------------------------------------------------------- The United States District Court for the Northern District of California, San Jose Division, issued an Order granting Plaintiff's Motion for Final Approval of Class Action Settlement and Plan of Allocation in the case captioned In re EXTREME NETWORKS, INC. SECURITIES LITIGATION. Case No. 15-cv-04883-BLF. (N.D. Cal.). The First Amended Complaint (FAC) alleges that the Defendants misrepresented to investors the success of Extreme's post-acquisition integration with its former competitor, Enterasys Networks, Inc. (Enterasys), as well as developments in Extreme's key partnership with Lenovo Group Ltd. (Lenovo). The Defendants' positive representations to investors about the resulting synergies from the Enterasys integration and benefits of the Lenovo partnership including a commitment that cost savings from these arrangements would lead to double-digit revenue growth and a 10% operating margin by June 2015 caused Extreme's stock price to rise. Extreme's stock price then dropped when Extreme reported disappointing financial results at various points between February 2014 and the end of the Class Period on April 9, 2015. The Defendants have agreed to pay $7,000,000 in cash, to secure a settlement of the claims in the Action and related claims that could have been brought (Released Claims). In order to grant final approval of the class action settlement, the Court must determine that (1) the class meets the requirements for certification under Federal Rule of Civil Procedure 23 and (2) the settlement reached on behalf of the class is fair, reasonable, and adequate. The Class Meets the Requirements for Certification under Rule 23 A class action is maintainable only if it meets the four requirements of Rule 23(a): (1) the class is so numerous that joinder of all members is impracticable (2) there are questions of law or fact common to the class (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class and(4) the representative parties will fairly and adequately protect the interests of the class. The Court concluded that these requirements were satisfied when it granted preliminary approval of the class action settlement. The Court is not aware of any new facts which would alter that conclusion. However, the Court reviews the Rule 23 requirements again briefly, as follows. Turning first to the Rule 23(a) prerequisites, the Court has no difficulty concluding that because the class contains thousands of members (3,845 claims filed as of the June 20, 2019 hearing), joinder of all class members would be impracticable. The commonality requirement is met because the key issues in the case are the same for all class members, including, for example, whether Defendants misrepresented material facts or omitted material facts for publicly traded stocks in violation of the law and whether these alleged actions artificially inflated the stock price. ATRS's claims are typical of those of the class, as it advances the same claims, shares identical legal theories, and allegedly experienced losses from Extreme's misrepresentations. Finally, to determine ATRS's adequacy, the Court must resolve two questions: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class? The Court has no reservations regarding the abilities of Class Counsel or their zeal in representing the class, and the record discloses no conflict of interest which would preclude ATRS from acting as class representative. With respect to Rule 23(b)(3), the predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. The common questions in this case which would be subject to common proof include whether Defendants misrepresented material facts or omitted material facts for publicly traded stocks in violation of the law, whether Defendants had a duty to disclose alleged material omissions or acted with scienter, and whether the market price of Extreme's common stock during the class period was artificially inflated due to the alleged material omissions and/or misrepresentations. These questions predominate. Moreover, given this commonality, and the number of potential class members, the Court concludes that a class action is a superior mechanism for adjudicating the claims at issue. The Court concludes that the requirements of Rule 23 are met and that certification of the class for settlement purposes is appropriate. Plaintiff Arkansas Teacher Retirement System is hereby appointed as class representative and Labaton Sucharow LLP is appointed class counsel. The Settlement is Fundamentally Fair, Adequate, and Reasonable In the Ninth Circuit, courts use a multi-factor balancing test to analyze whether a given settlement is fair, adequate and reasonable. That test includes the following factors: the strength of the plaintiffs' case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement. Strength of Plaintiffs' Case and Risk of Continuing Litigation In assessing the costs, risks, and delay of trial and appeal, courts in the Ninth Circuit evaluate the strength of the plaintiffs' case; the risk, expense, complexity, and likely duration of further litigation; [and] the risk of maintaining class action status throughout the trial. The Court finds that ATRS faced significant obstacles in this case, including needing to survive multiple motions to dismiss that raised important and complicated issues. The class would have faced similar risks at trial. As set forth in ATRS's motion, these obstacles included challenges to the material falsity of each alleged misstatement, class certification challenges, loss causation and damages challenges, and the risks inherent in a battle of the experts of complex economic theories in a jury trial. Throughout the litigation and mediation, Defendants raised many substantive, potentially meritorious defenses to the claims; indeed, the Court narrowed the claims significantly through the motions to dismiss phase. Securities actions in particular are often long, hard-fought, complicated, and extremely difficult to win. The Court finds this factor weighs in favor of approval. Effectiveness of Distribution Method, Terms of Attorney's Fees, and Supplemental Agreements The Court must likewise consider the effectiveness of the proposed method of distributing relief to the class. The Court has already approved the Plan of Allocation and has determined that it is reasonable and effective. The terms of the proposed award of attorney's fees are reasonable as discussed below. There are no supplemental agreements. This factor weighs in favor of approval. Equitable Treatment of Class Members Rule 23 also requires consideration of whether the proposal treats class members equitably relative to each other. Consistent with this instruction, the Court considers whether the proposal improperly grant[s] preferential treatment to class representatives or segments of the class. Under the Agreement, class members who have submitted timely claims will receive payments on a pro rata basis based on the value of their original claim and the number of claims filed. In granting preliminary approval, the Court found that this proposed allocation did not constitute improper preferential treatment. The Court adheres to its view that the allocation plan is equitable. Moreover, the service award ATRS seeks is reasonable and does not constitute inequitable treatment of class members. This factor weighs in favor of approval. Settlement Amount Here, the $7 million fund represents a substantial recovery for the class. Experts have calculated that the maximum potential damages in this action is $74 million to $140 million, with a recovery as low as $13 million to $36 million if Defendants' disaggregation arguments had succeeded. The gross settlement amount thus represents a recovery of between 5% and 9.5% of non-disaggregated damages and between 19% to 54% if disaggregated arguments are credited. Other courts have found similar recoveries to be fair and reasonable. Accordingly, the amount of the settlement also weighs in favor of approval. Counsel's Experience The Court also considers the experience and views of counsel. Labaton Sucharow has extensive experience representing plaintiffs in securities and financial class action lawsuits. That such experienced counsel advocate in favor of the settlement weighs in favor of approval. Objections The absence of a large number of objections to a proposed class action settlement raises a strong presumption that the terms of a proposed class settlement action are favorable to the class members. Here, Class Counsel and the Court received zero objections. Many potential class members are sophisticated institutional investors; the lack of objections from such institutions indicates that the settlement is fair and reasonable. Likewise, there were only two requests for exclusion, one of which KCC deemed invalid. This positive response from the class confirms that the settlement is fair and reasonable. Balancing the relevant factors, the Court finds the settlement fair and reasonable under Rule 23(e) and Hanlon. The Court finds that notice of the proposed settlement was adequate, the settlement was not the result of collusion, and the settlement is fair, adequate, and reasonable. Accordingly, the Lead Plaintiff's Motion for Final Approval of Class Action Settlement and Plan of Allocation is granted. A full-text copy of the District Court's July 22, 2019 Order is available at https://tinyurl.com/y2d4baqn from Leagle.com. Jui-Yang Hong, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Kenneth Joseph Black -- kennyb@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP & Shawn A. Williams -- shawnwrgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Mark Kasprzak, Plaintiff, represented by Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP & Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP. Extreme Networks, Inc., Charles W. Berger, Kenneth B. Arola & John T. Kurtzweil, Defendants, represented by Elliot Schlesinger Katz -- elliot.katz@dlapiper.com -- Shirli Fabbri Weiss -shirli.weiss@dlapiper.com -- DLA Piper LLP & David Allen Priebe -- david.priebe@dlapiper.com -- DLA Piper LLP. William Reardon, Movant, represented by Laurence Matthew Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A. City of Lakeland Employees Pension Plan, Movant, represented by Brian O. O'Mara -- bomara@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Kenneth Joseph Black, Robbins Geller Rudman and Dowd LLP &Shawn A. Williams, Robbins Geller Rudman & Dowd LLP. FACEBOOK INC: Court Narrows Claims in Bass Data Breach Suit ----------------------------------------------------------- In the case, WILLIAM BASS JR., an individual and California resident, and STEPHEN ADKINS, an individual and Michigan resident, on behalf of themselves and all others similarly situated, Plaintiffs, v. FACEBOOK, INC., Defendant, Case No. C 18-05982 WHA (JSC), Consolidated Case No. C 18-06022 WHA (JSC)., C 19-00117 WHA (JSC) (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California granted in part and denied in part Facebook's motion to dismiss the consolidated complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6). The "access tokens" star in the instant data breach. When a Facebook user logs into Facebook with a specific username and password, that user can conveniently access Facebook again without being forced to re-enter that information. This ease-of-access is facilitated by the "access token" generated by Facebook for that user upon his or her first log-in. The access token operates as an automatic super password which allows a user to log in numerous times without typing out their username and password each time. Many companies, not just Facebook, use this tool to reduce barriers between the user and the online platform thereby increasing ease-of-access and efficiency. Facebook's access tokens, however, carry specific value. Once a Facebook user's access token is compromised, all tokens from the user's shared or connected web applications (like Skype and Uber) purportedly become accessible. In addition, anyone with access to the token can reset all other user data permissions and steal the tokens of all connected applications without alerting the original user. Facebook's access tokens are allegedly the key to a breathtaking amount of online access. Importantly, standard industry practice is for companies to limit the lifespan of the tokens. By contrast, Facebook allegedly designed its access tokens to never expire. On Sept. 14, 2018, Facebook discovered it had a coding vulnerability related to its "View As" feature. The vulnerability revealed users' access tokens. Hackers accordingly stole the access tokens for 69,000 users. This led to the theft of a narrow set of information for 15 million worldwide users (2.7 million United States users) and a more comprehensive set of information for 14 million worldwide users (1.2 million United States users) . The hacking began sometime after July 2017. The specific source of the vulnerability related to the internal coding of Facebook's "View As" feature. This feature permitted users to see what their own "Timeline" looked like to other users. To illustrate, if a teenage user wanted to see his own account from the perspective of his parents' account, the teenager would utilize this "View As" feature on his own account to "view" the account "as" his parents. This would enable the teenager to see firsthand what information his parents could and could not see on the teenager's account. Facebook's engineering team isolated the security flaws on September 25, 2018. Facebook notified potentially affected users on Sept. 28, 2018. It then purportedly invalidated the access tokens of over 90 million accounts that were potentially impacted by the vulnerability and effected a "forced logout" which "required users to reenter their passwords" to access their accounts. After the breach had been publically announced, 11 separate lawsuits were filed against Facebook. These lawsuits generally alleged that Facebook failed to adequately protect its users' accounts. A public tutorial on the issue of personal information in the context of data breaches proceeded in the district court. The 11 actions were then consolidated and an amended consolidated complaint was filed. Five named Plaintiffs filed the consolidated complaint. Except for one original named Plaintiff, every named Plaintiff who had not filed the consolidated complaint voluntarily withdrew without prejudice. The consolidated complaint asserted 10 claims on behalf of a class of Facebook users in the United States whose personal identifiable information] was compromised in the data breach announced by Facebook on Sept. 28, 2018. Those 10 claims are: (i) breach of contract; (ii) breach of implied contract; (iii) breach of implied covenant of good faith and fair dealing; (iv) quasi-contract for non-restitutionary damages; (v) negligence; (vi) negligence per se; (vii) violation of California's Unfair Competition Law; (viii) violation of California's Consumer Legal Remedies Act; (ix) breach of confidence; and (x) declaratory judgment. Due to the number of consolidated cases, an order was issued appointing co-interim class counsel to coordinate motion practice and discovery. Facebook moved to dismiss. After full briefing, a hearing followed in May 2019. At the hearing, it came to light that Facebook had asked for, and not received, the benefit of the Plaintiffs' depositions. Those depositions were immediately ordered. The depositions took place. The parties filed supplemental briefing. Three of the five remaining named Plaintiffs abruptly withdrew. Facebook moves under two different rules: Rule 12(b)(1) and Rule 12(b)(6). Two named Plaintiffs remain in the action -- Plaintiff Stephen Adkins and Plaintiff William Bass. They both allege four theories of harm due to Facebook's alleged inadequate safeguarding of its users' personal information. Facebook has factually attacked the Plaintiffs' Article III standing by properly presenting the declaration of Christopher Bream, the individual who led the security response to the data breach, and depositions of the named Plaintiffs. Both the Plaintiffs must now defend jurisdiction by "furnish[ing] affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Judge Alsup finds that Adkins satisfied his burden to establish Article III standing through the dual harms of increased risk of future harm and loss of time. As to plaintiff Adkins, Facebook's Rule 12(b)(1) motion is therefore denied. Plaintiff Bass, on the other hand, has not established standing. Real victims from the data breach exist. Facebook has put forward sufficient evidence to show that Plaintiff Bass was not one of them. Plaintiff Bass has not sufficiently rebutted this evidence. Facebook's Rule 12(b)(1) motion as to plaintiff Bass is granted. Next, the Judge finds that Facebook is not cost-free. The user incurs the cost of having his information mined and shared. Even if this is not a monetary charge, the user still incurs this burden. Nonetheless, the procedure followed by Facebook was fair. The clause was not buried. The clause was plainly above board and contained clear enough language. True, it is an adhesion contract, but there is no "rule that an adhesion contract is per se unconscionable." No one is forced to enroll in Facebook's social media service. The four breach-of-contract claims are therefore dismissed. The breach of confidence claim is also dismissed because it is covered by the clause. The Judge also finds that the limitation-of-liability clause does not mention "negligence" at all, let alone unequivocally preclude liability for negligence. At this early stage, no facts have been teased out. Precluding the claims for negligence pursuant to the liability clause is therefore impossible. They remain for now. He further finds that negligence has been plausibly alleged. Specifically, Facebook allegedly failed to comply with minimum data-security standards during the period of the data breach. The lack of reasonable care in the handling of personal information can foreseeably harm the individuals providing the information. In order to establish standing for Section 17200 and the CLRA, the Plaintiffs must show that they personally lost money or property as a result of the unfair competition. As to the loss of value of the personal information, Plaintiff Adkins has provided no market for the personal information or the impairment of the ability to participate in that market. This lack of specificity is fatal. It is not enough to merely say the information was taken and therefore it has lost value. And, even if Plaintiff Adkins did intend to sell his own data, it is unclear whether or how the data has been devalued by the breach. This alleged economic harm therefore also fails. Plaintiff Adkins has only plausibly alleged harm arising from risk of future harm and loss of time. As alleged, neither of these show lost money or property as a result of the unfair competition. Accordingly, Plaintiff Adkins has not sufficiently alleged standing under Section 17200 and the CLRA. The Plaintiff seeks a declaratory judgment that Facebook's existing security measures do not comply with its explicit or implicit contractual obligations to provide adequate security, and duties of care towards plaintiff's personal identifiable information . A dispute exists as to the continued risk Plaintiff Adkins and similarly situated Facebook users face. While Facebook purports to have fixed the issues which led to this data breach, it is too early in the litigation to confidently say whether that is so. Dismissal of the declaratory judgment relief would be premature. To the extent stated, Judge Alsup granted in part and denied in part the motion to dismiss. Only Plaintiff Adkins may proceed with his claims. Plaintiff Bass has not adequately alleged standing. For plaintiff Bass to proceed, he must specify a connection to the data breach. Leave to amend will be allowed for him to attempt to do so. Excluding standing, the Judge order holds as follows. First, the four breach of contract claims and the breach of confidence claim cannot move forward because of the limitation-of-liability clause. Leave to amend will be allowed, however, because facts may conceivably be alleged which go towards determining whether procedural unfairness existed upon entering into the contract. Second, turning to the next two claims, negligence and negligence per se, these survive the motion to dismiss as a single claim. The limitation-of-liability clause does not preclude negligenc because contracts that limit liability without mentioning negligence specifically narrow the scope of liability based on a severe factual determination. Some circumstances will bar the claim under the clause. Some will cause the claim to survive the clause. So, the Judge takes a discovery-first approach to whether the clause applies to the negligence claim. Moving past the waiver, negligence has been plausibly alleged. Third, turning to the next two claims, the Section 17200/CLRA claims are barred because the only harm the Plaintiff plausibly alleged is risk of future harm and loss of time. Both of these statutes, however, require economic injury (money/property). Plaintiff Adkins may seek leave to amend. Fourth, the last claim is for declaratory judgment. This claim survives because the rights of the parties remain unknown at this early stage. In sum, only the dual claims for negligence and declaratory judgment survive the motion to dismiss. Negligence per se survives as a theory of the asserted negligence claim but not as a standalone claim. The rest of the claims are dismissed with leave to amend as set forth. Discovery should be moving with alacrity. Finally, both the Plaintiffs may move for leave to amend by July 18, 2019 at noon. Any such motion should include as an exhibit a redlined version of the proposed amendments that clearly identifies all changes from the initial complaint. The Order highlights certain deficiencies in the initial complaint, but it will not necessarily be enough to add a sentence parroting each missing item identified herein. If the Plaintiffs so move, they should be sure to plead their best case. Any motion should explain how the proposed complaint overcomes all deficiencies, even those the Order did not reach. A full-text copy of the Court's June 21, 2019 Order is available at https://is.gd/7HjgaY from Leagle.com. William Bass, Jr., Plaintiff, represented by John A. Yanchunis -- jyanchunis@ForThePeople.com -- Morgan and Morgan, P.A., Tarek H. Zohdy -- Tarek.Zohdy@CapstoneLawyers.com -- Capstone Lawyers, APC & Ariana J. Tadler, Milberg Tadler Phillips Grossman LLP. Stephen Adkins, Plaintiff, represented by Andrew N. Friedman, Cohen Milstein Sellers & Toll PLLC, pro hac vice, Ariana J. Tadler, Milberg Tadler Phillips Grossman LLP & John A. Yanchunis, Morgan and Morgan, P.A. Luis Licea, Consol Plaintiff, represented by Ebby Shahrokh Bakhtiar, Livingston Bakhtiar, Keith David Griffin, Girardi & Keese, Thomas V. Girardi, Girardi & Keese & Ariana J. Tadler, Milberg Tadler Phillips Grossman LLP. Facebook, Inc., Defendant, represented by Elizabeth L. Deeley -- elizabeth.deeley@lw.com -- Latham & Watkins LLP, Andrew Brian Clubok -- andrew.clubok@lw.com -- Latham & Watkins LLP, pro hac vice, Melanie Marilyn Blunschi -- melanie.blunschi@lw.com -- Latham & Watkins LLP, Michael H. Rubin -- michael.rubin@lw.com -- Latham & Watkins LLP, Serrin A. Turner -- serrin.turner@lw.com -- Latham & Watkins LLP, pro hac vice & Susan E. Engel -- susan.engel@lw.com -- Latham & Watkins LLP, pro hac vice. Scott Schinder, Interested Party, represented by Andrew N. Friedman, Cohen Milstein Sellers & Toll PLLC & Lesley Elizabeth Weaver, Bleichmar Fonti & Auld LLP. FORD MOTOR CO: Arendt Files Fraud Class Suit in Minn. ----------------------------------------------------- Mark Arendt, individually and on behalf of all others similarly situated, Plaintiff, v. Ford Motor Company, Defendant, Case No. 19-cv-01886 (D. Minn., July 17, 2019), seeks redress for breach of the express warranties and for violation of the Magnuson-Moss Warranty Act and the Illinois Consumer Fraud and Deceptive Business Practices Act. Mr. Arendt purchased a new 2018 F-150 Ford SuperCrew truck from Apple Ford, an authorized Ford dealership, located in Shakopee, Minnesota. He claims that Ford's fuel economy ratings were erroneous and overstated. Ford is engaged in the business of designing, manufacturing, marketing, warranting, distributing, selling, and leasing automobiles. [BN] Plaintiff is represented by: Daniel E. Gustafson, Esq. Linda S. Wang, Esq. David A. Goodwin, Esq. Raina C. Borrelli, Esq. GUSTAFSON GLUEK PLLC Canadian Pacific Plaza 120 S. Sixth St., Suite 2600 Minneapolis, MN 55402 Tel: (612) 333-8844 Fax: (612) 339-6622 Email: dgustafson@gustafsongluek.com lwang@gustafsongluek.com dgoodwin@gustafsongluek.com rborrelli@gustafsongluek.com - and - Charles Kocher, Esq. Simon Paris, Esq. Patrick Howard, Esq. SALTZ MONGELUZZI BARRETT BENDESKY, PC 120 Gibraltar Road, Suite 218 Horsham, PA 19044 Tel: (215) 575-3985 Email: ckocher@smbb.com sparis@smbb.com phoward@smbb.com GAW MINERS: Court Certifies Class in Audet Securities Suit ---------------------------------------------------------- In the case, DENIS MARC AUDET, et al., Plaintiffs, v. STUART A. FRASER, GAW MINERS, LLC, and ZENMINER, LLC, Defendants, Case No. 3:16-cv-0940 (MPS) (D. Conn.), Judge Michael P. Shea of the U.S. District Court for the District of Connecticut (i) granted the Plaintiffs' motion for class certification to the extent set forth in the ruling, and (ii) denied as moot Fraser's motion to strike the declarations of the Plaintiffs' experts. The case comes from the brave new world of cryptocurrency. The Plaintiffs are individuals who invested in products that ostensibly allowed them to share in the profits generated by "mining" -- or solving complex mathematical problems to clear transactions in -- digital currency. They are suing two companies that sold them these products and an individual who allegedly controlled these companies, claiming they were defrauded in violation of federal and state securities laws and the common law. The Plaintiffs allege that the Companies (1) violated Section 10(b) of the Securities and Exchange Act; (2) violated Sections 36b-29(a)(2) and 36b-4 of the Connecticut Uniform Securities Act; (3) violated Conn. Gen. Stat. Section 36b-29(a)(1); and (4) engaged in common law fraud. They allege that Fraser is liable as a control person or aider/abettor under (1) Section 20(a) of the Securities and Exchange Act; (2) Conn. Gen. Stat. Section 36b-29(a)(2); (3) Conn. Gen. Stat. Section 36b-29(c); and (4) common law fraud. The Plaintiffs seek to certify the following class: All persons or entities who, between Aug. 1, 2014, and Dec. 1, 2015 purchased or acquired Hashlets, Hashpoints, HashStakers, and Paycoin from GAW Miners and ZenMiner. The Court held a hearing on the Plaintiffs' class certification motion on April 12, 2019. After the hearing, he received supplemental submissions from the parties. Judge Shea must decide whether the Plaintiffs may represent a class of such investors under Rule 23 of the Federal Rules of Civil Procedure. He concludes that they may do so and thus granted their motion to certify the class, although he narrowed the proposed class to address valid objections raised by the individual Defendant, who is at this point the only active Defendant in the case. The Judge modified the class definition and certified the following class: All persons or entities who, between Aug. 1, 2014 and Jan. 19, 2015, (1) purchased Hashlets, Hashpoints, HashStakers, or Paycoin; or (2) acquired Hashlets, Hashpoints, HashStakers, or Paycoin by converting, upgrading, or exchanging other products sold by the Companies. The Judge denied the Defendant's motion to exclude the Plaintiffs' expert declarations as moot because he does not rely on them to reach the conclusion. Because the parties have not yet had a chance to comment on the modified class definition, they may, by July 5, 2019, file briefs not exceeding 10 pages in which they address any new issues raised by the modified class definition that the Judge has not already addressed in the decision. A full-text copy of the Court's June 21, 2019 Order is available at https://is.gd/dyaQvx from Leagle.com. Denis Marc Audet, Individually and on Behalf of All Others Similarly Situated, Michael Pfeiffer, Individually and on Behalf of All Others Similarly Situated, Dean Allen Shinners, Individually and on Behalf of All Others Similarly Situated & Jason Vargas, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, represented by Colin M. Watterson -- cwatterson@susmangodfrey.com -- Susman Godfrey, L.L.P., pro hac vice, Kathryn P. Hoek -- khoek@susmangodfrey.com -- Susman Godfrey L.L.P, pro hac vice, Marc M. Seltzer -- mseltzer@susmangodfrey.com -- Susman Godfrey L.L.P, Mark P. Kindall -- mkindall@ikrlaw.com -- Izard, Kindall & Raabe, LLP, Matthew B. Allen -- mallen@susmangodfrey.com -- Susman Godfrey, pro hac vice, Seth D. Ard -- sard@susmangodfrey.com -- Susman Godfrey L.L.P, pro hac vice & Robert A. Izard, Jr. -- rizard@ikrlaw.com -- Izard, Kindall & Raabe, LLP. Stuart A. Fraser, Defendant, represented by Daniel H. Weiner -- daniel.weiner@hugheshubbard.com -- Hughes, Hubbard & Reed, pro hac vice, Sara E. Echenique -- sarah.cave@hugheshubbard.com-- Hughes, Hubbard & Reed L.L.P., pro hac vice, Sarah L. Cave, Hughes, Hubbard & Reed L.L.P., pro hac vice, David R. Schaefer -- dschaefer@bswlaw.com -- Brenner, Saltzman & Wallman & Sean M. Fisher -- sfisher@bswlaw.com -- Brenner, Saltzman & Wallman. GRAGIL ASSOCIATES: Navarro Suit Asserts FDCPA Violation ------------------------------------------------------- CLARISSA NAVARRO, individually and on behalf of all those similarly situated, Plaintiff, v. GRAGIL ASSOCIATES, INC, Defendants, Case No. 0:19-cv-61901-XXXX (S.D. Fla., July 28, 2019) sues Defendant for violations of the Fair Debt Collection Practices Act and the Florida Consumer Collection Practices Act. The debt at issue is a financial obligation Plaintiff incurred primarily for personal, family, or household purposes. The Defendant attempted to collect the debt from Plaintiff. However, the Defendant has never registered, or otherwise been licensed, to collect consumer debts from Florida consumers in accordance with the FDCPA. The Defendant cannot legally collect, or attempt to collect, the Consumer Debt from Plaintiff without first registering, and thereafter maintaining, a valid consumer collection agency license, says the complaint. Plaintiff is a natural person, and a citizen of the State of Florida, residing in Miami-Dade County, Florida. Defendant engages in interstate commerce by regularly using telephone and mail in a business whose principal purpose is the collection of debts.[BN] The Plaintiff is represented by: JIBRAEL S. HINDI, ESQ. THOMAS J. PATTI, ESQ. The Law Offices of Jibrael S. Hindi 110 SE 6th Street, Suite 1744 Fort Lauderdale, FL 33301 Phone: 954-907-1136 Fax: 855-529-9540 Email: jibrael@jibraellaw.com tom@jibraellaw.com GRAND CANYON: Webb Klase Files Class Action Lawsuit --------------------------------------------------- Atlanta-based law firm Webb, Klase & Lemond, LLC has filed a class action lawsuit against Grand Canyon University and Grand Canyon Education, Inc. alleging that Grand Canyon induces students to enroll in online professional degree and certificate programs that are not accredited in most states. These programs are primarily in the educational and healthcare fields for which licensure by state agencies is required. Because the Grand Canyon programs are not accredited in the state where the students work, they allege that they cannot gain the needed state license. The suit alleges Grand Canyon trains its recruiters to misrepresent the accreditation status of the school's professional programs. The suit further alleges that students are enrolled in a course of study which Grand Canyon knows will not be accepted by the relevant state due to the program's lack of accreditation. The Class Action Complaint (at Paragraph 80) seeks to certify a nationwide class which is preliminarily defined as follows: "All Grand Canyon University students who have been enrolled in an online professional graduate degree or certificate program that is not accredited in the state where they are employed or, if not employed, where they reside." The suit alleges that the challenged practice of Grand Canyon University has impacted tens of thousands of online students and brings causes of action for fraud, RICO (the Racketeer Influenced and Corrupt Organizations Act), misrepresentation, violations of the Arizona Consumer Fraud Act, and unjust enrichment. The case, styled Austin, et al. v. Grand Canyon University, Inc. and Grand Canyon Education, Inc., is pending in the Superior Court of Fulton County in Atlanta, Georgia, and has been given Case No. 4324168. Even though the case has been filed in Georgia, it seeks to have a class action certified on behalf of all victims of Grand Canyon's practices nationwide. If you would like further information about this action, please visit http://www.GrandCanyonUniversityLawsuits.comor email contact@WebbLLC.com [GN] HEARTLAND FINANCIAL: Bangart Seeks to Recover Unpaid Overtime ------------------------------------------------------------- Denise Bangart, on her own behalf and on behalf of those similarly situated, Plaintiff, v. Heartland Financial USA, Inc., Defendant, Case No. 19-cv-01021, (E.D. Wis., July 17, 2019), seeks payment of all overtime hours at one and one-half the regular rate of pay for the hours worked, liquidated damages, reasonable attorneys' fees and costs incurred in this action and all further relief under the Fair Labor Standards Act. Defendant owns and operates at least 19 banking locations throughout the state of Wisconsin where Bangart was a Mortgage Loan Originator at their Calumet County location. [BN] Plaintiff is represented by: Carlos Leach, Esq. THE LEACH FIRM, P.A. 1950 Lee Rd., Suite 213 Winter Park, FL 32789 Telephone: (407) 574-4999 Facsimile: (833) 423-5864 Email: CLeach@theleachfirm.com - and - Verona Swanigan, Esq. THE SWANIGAN FIRM 425 W. Capitol Ave., Suite #1533 Little Rock, AR 72201 Telephone: (866) 603-5239 Facsimile: (866) 603-5239 Email: veronaS25@outlook.com HELIUS MEDICAL: Bronstein Gewirtz Files Class Action Lawsuit ------------------------------------------------------------ Bronstein, Gewirtz & Grossman, LLC notifies investors that a class action lawsuit has been filed against Helius Medical Technologies, Inc. (NASDAQ: HSDT) and certain of its officers, on behalf of shareholders who purchased or otherwise acquired Helius securities from November 9, 2017 and April 10, 2019, inclusive (the "Class Period"). Such investors are encouraged to join this case by visiting the firm's site: www.bgandg.com/hsdt This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934. On January 25, 2019, Helius said that it had received a request for additional data and information from the U.S. Food and Drug Administration (the "FDA") related to the its request for de novo classification and 510(k) clearance of its Portable Neuromodulation Stimulator (PoNS(TM) device. Following this news, Helius stock dropped $0.48 per share, or roughly 6%, to close at $7.13 on January 25, 2019. On April 10, 2019, Helius disclosed that the U.S. Food and Drug Administration ("FDA") had declined the Company's request for De Novo classification and clearance of its Portable Neuromodulation Stimulator device. The FDA stated that it lacked sufficient data to determine the relative contributions of the device and physical therapy in clinical studies. Following this news, Helius stock dropped $4.11 per share, or more than 66%, to close at $2.10 on April 10, 2019. The complaint alleges that throughout the Class Period, defendants made false and/or misleading statements and/or failed to disclose that: (1) that the clinical study on the use of PoNS did not produce statistically significant results regarding the effectiveness of the treatment; (2) that, as a result, the clinical study did not support the Company's application for regulatory clearance; (3) that, as a result, the Company was unlikely to receive regulatory approval of PoNS; and (4) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. If you wish to review a copy of the Complaint you can visit the firm's site: www.bgandg.com/hsdt or you may contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in Helius you have until September 9, 2019 to request that the Court appoint you as lead plaintiff. A lead plaintiff acts on behalf of all other class members in directing the litigation. The lead plaintiff can select a law firm of its choice. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC is a corporate litigation boutique. Our primary expertise is the aggressive pursuit of litigation claims on behalf of our clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. Contact: Peretz Bronstein, Esq. Yael Hurwitz, Esq. Bronstein, Gewirtz & Grossman, LLC Tel.No.: 212-697-6484 Email: peretz@bgandg.com info@bgandg.com [GN] HENRY COUNTY, IN: Court Certifies Class in Bell Prisoners Suit -------------------------------------------------------------- In the case, ADAM BELL, Plaintiff, v. SHERIFF OF HENRY COUNTY, et al., Defendants, Case No. 1:19-cv-00557-SEB-MJD (S.D. Ind.), Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana, Indianapolis Division, granted the Plaintiff's motion to certify class. In the action, the Plaintiff seeks declaratory and injunctive relief related to the conditions of the Henry County Jail. He seeks certification of the class of all persons currently confined, or who will in the future be confined, in the Henry County Jail. The Defendants have responded to the Plaintiff's motion. They contest class certification only on the ground that the named Plaintiff, Bell, does not satisfy the requirement of Rule 23(a)(4). Specifically, they contend that Mr. Bell will not adequately and fairly protect the interests of the class because he is no longer a member of the purported class and lacks standing to pursue the requested relief Judge Barker finds that the case is indistinguishable from Olson v. Brown. The Defendants argue that the case fails to meet the first requirement of the inherently transitory exception because inmates may be incarcerated in the Jail for as much as two and a half years. This argument is unavailing, however, because it is the uncertainty about the length of incarceration, not the maximum length of incarceration, that controls. Although Mr. Bell could have been housed at the Jail for as much as two and a half years, the duration of his incarceration was not certain at its inception. As emphasized in Olson, the duration of Mr. Bell's incarceration was impacted by a number of factors he could not anticipate. This uncertainty is precisely what makes the 'inherently transitory' exception applicable in the case. Second, although Mr. Bell has been released from the Jail, he filed for class certification shortly after filing his complaint and before being released from the Jail. The first exception is satisfied. The inherently transitory exception applies to the case and Mr. Bell's release from the Jail does not render the case moot. The Defendants present no other challenges to Mr. Bell's ability to satisfy the requirement in Rule 23(a)(4) that he fairly and adequately represent the interests of the class. The evidence submitted by Mr. Bell establishes that he fulfills this requirement. He has averred that he is "strongly committed" to the case, that he will remain in communication with his attorney, and that he will make himself available for deposition, discovery, and trial. Additionally, the Judge finds that Mr. Bell's counsel is experienced in class action litigation. Judge Barker concludes that the Plaintiff has demonstrated that the action fulfills the requirements of both Rule 23(a) and Rule 23(b). She therefore granted the Plaintiff's motion to certify class. A full-text copy of the Court's June 25, 2019 Order is available at https://is.gd/FnSEpZ from Leagle.com. ADAM BELL, individually and on behalf of a class of those similarly situated, Plaintiff, represented by Kenneth J. Falk, ACLU OF INDIANA. SHERIFF OF HENRY COUNTY, in his official capacity & HENRY COUNTY, INDIANA, Defendants, represented by James S. Stephenson, STEPHENSON MOROW & SEMLER, Joel Elias Harvey -- jharvey@hcclaw.com -- HAYES COPENHAVER CRIDER & Pamela G. Schneeman, STEPHENSON MOROW & SEMLER. HIGHMARK HEALTH: Court Narrows Claims in Antitrust Suit ------------------------------------------------------- The United States District Court for the Western District of Pennsylvania issued an Order granting in part and denying in part Defendant's Motion to Dismiss in the case captioned PRESQUE ISLE COLON AND RECTAL SURGERY, on Behalf of Itself and All Others Similarly Situated, Plaintiff, v. HIGHMARK HEALTH, HIGHMARK INC. f/k/a HIGHMARK HEALTH SERVICES, and HIGHMARK CHOICE COMPANY f/k/a KEYSTONE HEALTH PLAN WEST, INC., Defendants. Civil Action No. 17-122. (W.D. Pa.). Plaintiff Presque Isle Colon and Rectal Surgery instituted this action against Highmark alleging in its original complaint that Highmark violated Sections 1 and 2 of the Sherman Antitrust Act as well as Pennsylvania's antitrust laws, breached the parties' contract and implied covenant of good faith and fair dealing, and was unjustly enriched. Currently before the Court is Highmark's motion to dismiss the amended complaint in its entirety, pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that the amended complaint still fails to state a claim on which relief can be granted. Highmark's central argument is that the amended complaint fails to adequately plead an antitrust injury. Thus, the Court will begin there. Antitrust Injury At this early stage, the pleading standard is permissive; indeed, as the Third Circuit has recognized, the existence of antitrust injury is not typically resolved through motions to dismiss. An antitrust plaintiff is only required to allege facts capable of supporting a finding or inference that the purported anticompetitive conduct produced the purported harm. Highmark claims that Plaintiff has failed to meet even this low standard in its amended complaint. It moves the Court to dismiss based largely on the contention that the Plaintiff has advanced only purely conclusory allegations of reduced output and quality and that these allegations are "unsupported by any factual allegations showing harm to competition or consumers. Further, it alleges that Plaintiff has failed to adequately plead injury stemming from anticompetitive conduct based on a summary claim of a $200-300,000 annual loss. The Plaintiff replies that it has sufficiently alleged antitrust injury based on pleading that Highmark's anticompetitive conduct, including predatorily low reimbursement rates for outpatient services, unnecessary audits, unfair steering of patients away from independent physicians, and inefficient procedure codes and requirements, leaves patients with no choice but to turn to inferior, more costly services and independent physicians with no choice but to endure Highmark's anticompetitive actions or go out of business. The Court finds that Plaintiff has alleged a sufficient antitrust injury to establish its antitrust standing. Plaintiff Pleads Injury of the Type the Antitrust Laws Were Intended to Prevent Highmark contends that Plaintiff has failed to allege a single example of an actual reduction in the delivery of outpatient physician services or any reduction in competition or harm to consumers. For example, Highland contests that patients will be forced to turn to inferior, more costly services from Highmark-controlled facilities. In sum, the thrust of Highmark's arguments is that Plaintiff has still failed to allege anticompetitive conduct and that such conduct led to harm to competition or consumers. Plaintiff replies that the amended complaint adequately alleges antitrust injury based on the addition of further alleged anticompetitive conduct, which supplemented Plaintiff's original complaint of predatorily low reimbursement rates, including unnecessary audits, unfair steering, and inefficient procedure codes and requirements. In its amended complaint, however, Plaintiff has added substantive claims of additional anticompetitive conduct that it alleges has and will continue to cause adverse effects on competition and consumers. First, Plaintiff claims it and other independent physicians have been subjected to unnecessary audits as a means to claw-back previously disbursed reimbursements that interfere with treatment decisions. Plaintiff claims that Highmark "does not subject physicians working at Highmark-controlled facilities to the same scrutiny. These audits hurt independent physicians by raising physicians costs and diverting resources away from providing outpatient colorectal services to patients. Second, Plaintiff alleges that Highmark subjects independent physicians to inefficient procedure codes and requirements. These procedure codes have forced Plaintiff to schedule patients for two different procedures, where one would suffice, subjecting patients to inconvenience and burden not to mention any pain and discomfort resultant from the procedures themselves. Finally, Plaintiff alleges that Highmark uses its dominance and market presences to steer patients away from independent physicians to its own facility. When these allegations are taken in concert with Plaintiff's allegations of predatory reimbursement reductions, market dominance, and alleged coercion through the use of the All Product Clause, a facially plausible pleading emerges. First, there is plausible harm to competition. Plaintiff has alleged that Highmark uses its dominance on the buy side of the market, including insisting on unnecessary audits, inefficient procedure codes, and predatorily low reimbursement rates, to drive up the costs for and lower the income of independent physicians. In fact, this is the entire point according to Plaintiff, as Highland's dominance on the insurance end of the market allows it to unfairly compete on the physician services end of the market, driving independent physicians into the Hobson's choice between absorption or going out of business. Thus, these allegations are enough to establish anticompetitive conduct in differentiated treatment meant to harm competition on the provider side of the market by utilizing monopsony power on the insurance side of the market. Meanwhile, Plaintiff has also plausibly alleged harm to patients. Through weakening competition between independent physicians and Highmark facilities by exploiting its position as buyers of medical services, Plaintiff alleges that patients have been subjected to a reduction in the quantity and a degradation in the quality of outpatient physician services. This includes patients being subjected to unnecessary procedures, increases in premiums, and the confusion and frustration that potentially arises when being steered away from one's preferred physician based on what insurance allegedly will and will not cover. These allegations, taken as true and as a whole as the Court must, are sufficient to adequately plead at the 12(b)(6) stage that Highmark has engaged in anticompetitive conduct and that the alleged conduct has caused harm to competition and consumers. Plaintiff Pleads Injury Which Flowed from Anticompetitive Conduct It is not sufficient for Plaintiff to simply allege that there has been anticompetitive conduct that caused harm to the market and consumers. Rather, Plaintiff must also show that it was injured by the anticompetitive conduct and that the injury flows from that which makes defendants' acts unlawful. Highmark contends that Plaintiff has failed to sufficiently plead this prong of antitrust injury in the amended complaint. It disputes the amended complaint's contention that Plaintiff has lost approximately $200,000 to $300,000 annually on two levels. First, Highmark asserts that the loss is not an antitrust injury because it does not arise from conduct the type of which the antitrust laws were intended to prevent. Second, it attacks the figure directly by asserting that the alleged losses are insufficient because they say nothing about whether and to what extent those losses relate to reimbursements from Highmark or other payors, how Highmark's reimbursements relate to Plaintiff's costs. Plaintiff simply responds that it has alleged proper injury based on the claimed losses of $200,000 to $300,000 annually due to Highmark's predatory rates. While Plaintiff's pleading regarding injury stemming from anticompetitive conduct is barebones, it is sufficient to survive this stage of the pleadings. Plaintiff has alleged an injury, $200,000 to $300,000 annually, resulting from a rates drop below its costs for numerous procedures attributable to predatorily depressed reimbursement rates. As such, Plaintiff has established a showing of antitrust injury, which comports with the goals of antitrust law. Having so determined, the Court will proceed to examine Plaintiff's substantive claims under Sections 1 and 2 of the Sherman Antitrust Act. Section 2 of the Sherman Antitrust Act In counts one and three of the amended complaint, Plaintiff charges Highmark with unlawful monopsonization and unlawful attempted monopsonization in violation of Section 2 of the Sherman Antitrust Act. Similarly, Plaintiff charges Highmark with unlawful monopsonization and unlawful attempted monopsonization in violation of Pennsylvania common law in counts two and four. As these causes of action contain significant overlap, the Court will address them together. Count 1: Unlawful Monopsonization in Violation of Section 2 In its motion to dismiss, Highmark claims that Plaintiff fails to adequately plead the necessary elements for a claim under Section 2 based largely on the same complaint of conclusory anticompetitive conduct unconnected to any antitrust injury. Plaintiff's pleading, according to Highmark, fails to allege the second required element of willful acquisition or maintenance of power. Plaintiff responds that it has adequately pled a Section 2 claim based on Highmark's dominant position in the market and ability to effect prices, including reducing prices paid to independent providers, while simultaneously raising premiums paid by consumers. As it relates to the first element, market share, Plaintiff claims that Highmark insures "in excess of" 65-75% of all health insurance enrollees in Western Pennsylvania and far "in excess of" 65-70% of all health insurance enrollees in the Erie County MSA. Similarly, it pleads that Highmark is responsible for buying "at least" 65% of outpatient services in Western Pennsylvania and well in excess of 65-75% of the same services in the Erie County MSA. Such high market shares are sufficient, at this stage, to plead monopsony power in the relevant markets. As it relates to the second element, that of the the willful acquisition or maintenance of that power, a monopolist willfully acquires or maintains monopoly power when it competes on some basis other than the merits. The Court has already established that Plaintiff has sufficiently pled that Highmark engaged in anticompetitive conduct and that such conduct caused injury to competition and consumers to survive a 12(b)(6) motion. As such, the Court finds that Plaintiff has sufficiently pled a claim under Section 2 to survive a 12(b)(6) challenge. Count 3: Unlawful Attempted Monopsonization in Violation of Section 2 Highmark attacks Plaintiff's pleading of attempted monopsonization on the independent ground that Plaintiff has failed to adequately allege intent. Plaintiff responds that the amended complaint alleges that Highmark acted with anticompetitive purpose to gain unlawful market power sufficient to meet the intent requirement of attempted monopsonization. The amended complaint charges Highmark with engaging in conduct that had and continues to have an anticompetitive purpose and effect on competition that was not offset by any procompetitive benefits. These practices, according to the amended complaint, were intended to reap supra-competitive profits for Highmark, entrench its own market power in the outpatient physician services market and private health insurance market," and force independent physicians to either join Highmark or go out of business. These pleadings are sufficient to establish the intent element under Iqbal's standards. Counts 2 and 4: Unlawful Monopsonization and Unlawful Attempted Monopsonization in Violation of Pennsylvania Common Law Highmark advances no independent grounds for dismissal of Plaintiff's Pennsylvania common law antitrust causes of action. Instead, Highmark's motion to dismiss merely contends that, if the Court dismisses Plaintiff's causes of action under the Sherman Antitrust Act, it must also dismiss the common law claims which are based on identical allegations. Plaintiff concedes that the elements necessary to plead a Pennsylvania common law antitrust claim are substantially similar to its federal claims. This, however, is not the full picture. Pennsylvania has no general antitrust statute, nor any statute creating a private right of action against restraints of trade. In fact, the Pennsylvania courts that have examined the issue have expressly concluded that no private remedy for damages is available under Pennsylvania law. Numerous federal courts have followed this guidance, disallowing claims for damages under Pennsylvania common law for antitrust violations to proceed. Plaintiff's complaint does seek injunctive relief.. As such, the Court grants Highmark's motion to dismiss Plaintiff's Pennsylvania common law antitrust claims, counts 2 and 4, so far as it seeks damages but not so far as it seeks injunctive relief. Section 1 of the Sherman Antitrust Act Similar in structure to its Section 2 claims, Plaintiff advances causes of action for unlawful restraint of trade in violation of Section 1 of the Sherman Antitrust Act in counts five and seven and Pennsylvania common law in counts six and eight. All four causes of action rest on a theory of unlawful tying, i.e., that Highmark violated antitrust laws by "unlawfully tying the reimbursement of outpatient physician services under any of its health insurance products to the reimbursement of the same under any of its other health insurance products. Highmark seeks to dismiss all four causes of action for the simple reason that there is no precedent to assert a tying theory against an alleged monopsonist. Section 1 of the Sherman Antitrust Act outlaws every contract in restraint of interstate or international trade or commerce. The Court need not, however, proceed to the substantive requirements of a prima facia case, because the principals underlying a tying claim's illegality do not extend from the established case of a monopolist to a monopsonist. Elaborations on the underlying principle for the illegality of tying agreements consistently emphasize concerns over sellers' market power, not buyers. As Highmark points out, tying arrangements raise antitrust concerns among courts for three prominent reasons. First, such agreements foreclose markets to competitors. Plaintiff does not refute this underlying logic. As Highmark points out, Plaintiff is unable to identify a case in which a court extended tying liability to a monopsonist. The Court is also unable to find such a case. As such, the Court will dismiss Plaintiff's amended unlawful restraint of trade counts of action under violation of Section 1 of the Sherman Antitrust Act and Pennsylvania common law without leave to amend. Parker State Action Doctrine In the event that the Court declined to dismiss some or all of the Plaintiff's antitrust claims, as it has, Highmark contends it is insulated from antitrust liability by the Parker state action doctrine. The Parker doctrine descends from Parker v. Brown, 317 U.S. 341(1943), in which the Supreme Court held that States are immune from antitrust liability because the purpose of the Sherman Antitrust Act was to suppress combinations to restrain competition and attempts to monopolize by individuals and corporations and gave no hint that it was intended to restrain state action or official action directed by a state. Plaintiff contests the applicability of the Parker doctrine to this case. In its opposition, Plaintiff in essence argues that Highmark's Parker contentions are both too broad and too deep. First, Plaintiff claims that its allegations of antitrust conduct extend beyond the PPA and the All Products Clause. Thus, Highmark's invocation of the Parker doctrine sweeps too broadly in attempting to immunize all of Highmark's alleged anticompetitive actions simply through the State's approval of the PPA. Second, Plaintiff claims that Highmark extends the Parker doctrine too deeply, attempting to expand a simple ministerial approval into an expression of state policy approving anticompetitive conduct. In this instance, Plaintiff's arguments carry the day. In order to invoke the protections of the Parker doctrine in this instance, Highmark must pass a rigorous two-part test: first, the state must enact a clearly articulated and affirmatively expressed' policy permitting anticompetitive conduct; and second, the State must actively supervise that conduct. Highmark bears the burden of establishing this affirmative defense. As to the first prong, that of clearly articulated and affirmatively expressed, it is not enough that anticompetitive conduct is prompted' by state action; rather, anticompetitive activities must be compelled by direction of the State acting as a sovereign. Instead, competition may only be displaced if the displacement is both intended by the State and implemented in its specific details and thus is applicable only when it is clear that the challenged anticompetitive conduct is undertaken pursuant to a regulatory scheme that `is the State's own. Regarding the second prong, active supervision, the inquiry is whether the State has exercised sufficient independent judgment and control to establish that the anticompetitive conduct was sanctioned as a product of deliberate state intervention. With these principles in mind, Highmark's appeal to the Parker doctrine is unavailing for two independent reasons. First, Highmark is incorrect that all of Plaintiff's alleged harms flow from the All Products Clause and the PPA, the state approval of which provides the basis for its invocation of the Parker doctrine. As Plaintiff replies, the all products clause is but one aspect of Highmark's anticompetitive behavior. As previously discussed, Plaintiff's amended complaint alleges other anticompetitive conduct, which the Court considered to determine whether Plaintiff had met the pleading requirements to establish anticompetitive conduct. Plaintiff's amended complaint characterizes the All Products clause as an exacerbating factor, not a sole factor. There is no indication in the Pennsylvania administrative code, or Exhibit A, that Pennsylvania approved of Plaintiff's alleged other anticompetitive conduct or the reduced rates of primary concern to Plaintiff. As such, Highmark has failed to make a prima facia showing that the Parker doctrine is broadly applicable to all the alleged conduct. Second, Highmark fails to meet the substantive requirements of the Midcal standard. Quite simply, Highmark overstates the extent of Pennsylvania's approval of its actions through submission and review of the draft PPA. For example, Section 9.722 contains no indication that the DOH reviews for antitrust concerns, let alone expresses a clearly articulated and affirmatively expressed state policy to permit anticompetitive conduct. Nor does the submission of annual and quarterly reports, as required by 28 Pa. Code Section 9.604 and pointed to by Highmark, prove active supervision where, again, the provision evidences no condoning of anticompetitive activity. Nothing within either texts provides evidence of a policy approving all the possible negative ramifications that may arise from the contract or inoculating plans from federal antitrust scrutiny. As such, Highmark's invocation of the Parker doctrine is unavailing, and Plaintiff's surviving antitrust claims may proceed. Count Nine: Unjust Enrichment Having determined that at least some of Plaintiff's antitrust causes of action may stand, the Court will address the pendant common law causes of action. The first of which, in count nine, is Plaintiff's claim of unjust enrichment based on the allegation that Highmark knowingly received and retained wrongful benefits in the form of the difference in the amount of the reimbursement rates and claw-back audits as well as other wrongfully held amounts. Highmark moves to dismiss this cause of action based on the contention that a cause of action for unjust enrichment may arise only when a transaction of the parties is not otherwise governed by an express contract. The Court is persuaded that Highmark is correct. First, as Highmark points out, under both Third Circuit precedent and Pennsylvania law unjust enrichment is inapposite where a valid contract exists. Nowhere in its complaint or subsequent pleadings has Plaintiff claimed that the PPA is invalid. Plaintiff's sole precedential support is unavailing. It points to only one out-of-Circuit case, Quality Auto Painting Ctr. Of Roselle, Inc. v. v. State Farm Indem. Co., 870 F.3d. 1262 (11th Cir. 2017), for the proposition that the existence of the PPA does not extinguish its unjust enrichment claim. That case, however, rested its conclusion on an assumption that a valid contract did not exist between the parties. The Court therefore will dismiss Plaintiff's cause of action for unjust enrichment with prejudice. Count Ten: Breach of Contract and Implied Covenant of Good Faith and Fair Dealing Plaintiff pleads its claim for breach of contract and breach of implied covenant of good faith and fair dealing in one count. As the parties have argued separate theories for dismissing or maintaining these separate grounds, the Court will address them in turn. Breach of Contract Plaintiff does not allege a breach of the terms of the PPA itself. Instead, the amended complaint accuses Highmark of violating the ACA's antidiscrimination provision, which the PPA in turn incorporates by reference. While Highmark contests whether it materially violated the provisions of the ACA, Highmark chiefly argues that Plaintiff cannot assert a breach of action claim under Pennsylvania law based on the incorporation of a statute which gives Plaintiff no private right of action. Plaintiff disagrees based on the substance and understanding of Pennsylvania law and the ACA. The Court finds Petty v. Hosp. Serv. Ass'n of Ne. Pennsylvania, 23 A.3d 1004 (Pa. 2011) persuasive and controlling for the proposition that Plaintiff cannot assert a claim for breach of contract in this instance. In Petty, Pennsylvania's Supreme Court set out to determine whether an employer could assert a breach of contract claim against a nonprofit hospital corporation that contracted to provide health insurance coverage to the employer's employees. The problem with Plaintiff's argument is that it is incorrect in its assertion that the ACA lacks any limit on who can sue under it. There is fair consensus that the ACA's antidiscrimination provision, does not create a private right of action. Thus, under Pennsylvania law, Plaintiff does not have standing to assert a breach of contract claim based on the ACA, where it could not enforce its rights directly through the ACA. Covenant of Good Faith and Fair Dealing Highmark, according to Plaintiff, violated that duty by unilaterally imposing discriminatory reimbursement rate cuts and engaging in other unfair, anticompetitive conduct. Highmark counters that to the extent that Plaintiff purports to base its claim for breach of fiduciary duty on such allegations, dismissal is appropriate because, under Pennsylvania law, such claims must be based on a specific provision of a contract. Plaintiff's however, can point to such a provision, the variable reimbursement rate clause, which provides that allowances paid to specialist] may be reviewed and adjusted from time to time during the Term.Thus, Plaintiff contends that even if the PPA affords Highmark the discretion to pay whatever rates it chooses, Highmark still has a duty to exercise its discretion in good faith. Under Pennsylvania law, a duty of good faith is not divorced from the specific clauses of the contract and cannot be used to override an express contractual term. Instead, the duty is defined as honesty in fact in the conduct or transaction concerned. As the Pennsylvania Court of Common pleas has stated, after confessing that the duty is shrouded in mystery and confusion in Pennsylvania, the duty does not allow for a claim separate and distinct from a breach of contract claim but rather a claim arising from a breach of the covenant of good faith must be prosecuted as a breach of contract claim, as the covenant does nothing more than imply certain obligations into the contract itself. Pennsylvania Courts have recognized that it is not possible to classify every situation constituting a breach of the duty, but have instead determined that examples include evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party's performance. Thus, Plaintiff's breach of contract and implied covenant of good faith and fair dealing may survive to the extent that Plaintiff alleges that Highmark exercised its contractual rights under the variable rates clause in violation of its duty of good faith but not to the extent that either (1) it violated the terms of the PPA by exercising its right to adjust rates in the first place or (2) by adjusting rates it violated the antidiscrimination provision of the ACA. Accordingly, the Defendants' motion to dismiss is denied as to counts 1 and 3. The Defendants' motion to dismiss is denied as to counts 2 and 4, to the extent that Plaintiff seeks only injunctive relief. The Defendants' motion to dismiss is granted as to counts 5, 6, 7, and 8. Counts 5, 6, 7, and 8 are dismissed with prejudice. The Defendants' motion to dismiss is granted as to count 9. Count 9 is dismissed with prejudice. The Defendants' motion to dismiss is granted in part and denied in part as to count 10. A full-text copy of the District Court's July 22, 2019 Order is available at https://tinyurl.com/yyhtbndr from Leagle.com. PRESQUE ISLE COLON AND RECTAL SURGERY, Plaintiff, represented by Kenneth J. Grunfeld -- kgrunfeld@golombhonik.com -- Golomb & Honik, P.C. HIGHMARK HEALTH, HIGHMARK INC., formerly known as HIGHMARK HEALTH SERVICES & HIGHMARK CHOICE COMPANY, formerly known as KEYSTONE HEALTH PLAN WEST, INC., Defendants, represented by Daniel I. Booker -- dbooker@reedsmith.com -- Reed Smith LLP, Courtney B. Averbach -- caverbach@reedsmith.com -- Reed Smith LLP & William J. Sheridan -- wsheridan@reedsmith.com -- Reed Smith LLP. IDEANOMICS INC: Pomerantz Files Securities Class Action Lawsuit --------------------------------------------------------------- Pomerantz LLP announces that a class action lawsuit has been filed against Ideanomics, Inc. f/k/a Seven Stars Cloud Group, Inc. f/k/a Wecast Network Inc. (NASDAQ:IDEX) and certain of its officers. The class action, filed in United States District Court, for the Southern District of New York, and indexed under 19-cv-06741, is on behalf of a class consisting of all persons and entities other than Defendants who purchased or otherwise acquired Ideanomics securities between May 15, 2017 and November 13, 2018, both dates inclusive (the "Class Period"). Plaintiff asserts claims against Ideanomics and certain of Ideanomics' officers and directors (collectively, "Defendants") under the Securities Exchange Act of 1934 (the "Exchange Act"). If you are a shareholder who purchased Ideanomics securities during the class period, you have until September 17, 2019, to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 9980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. Ideanomics purports to operate as a financial technology and asset digitization services company. The Company asserts that its "business model is to become a next-generation [fintech] company, with the intention of offering both traditional financing solutions and digital financing solutions based on the emergence of trading systems that utilize blockchain and artificial intelligence technologies." Historically, however, Ideanomics' purported business activities have varied widely and changed with some frequency. The Complaint alleges that throughout the Class Period, the defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, the defendants failed to disclose to investors that: (i) costs associated with building out Ideanomics' U.S. infrastructure and hiring its new executive team were negatively impacting the Company's bottom line performance; (ii) as a result, Ideanomics was highly unlikely to meet its 2018 EBITDA guidance; (iii) Ideanomics' margins in its oil trading and consumer electronics businesses were too low for those businesses to remain viable; and (iv) as a result, Ideanomics' public statements were materially false and misleading at all relevant times. On November 14, 2018, the Company issued a press release, filed as an exhibit to a Current Report on Form 8-K with the SEC, announcing the Company's financial and operating results for the third quarter of 2018 (the "Q3 2018 Press Release"). In the Q3 2018 Press Release, Ideanomics reported that "we intend to phase out our oil trading and consumer electronics businesses, with the intention to fully divest these assets in the near future," citing "low margins in relation to top line sales." Ideanomics further reported that "[c]osts associated with building out our U.S. infrastructure and hiring our new executive team have put a strain on our bottom line performance, resulting in our increased net loss for the third quarter of 2018 as compared to the third quarter of 2017," and that accordingly, "we do not anticipate meeting our EBITDA guidance of $35 million for fiscal year 2018." On this news, Ideanomics' stock price fell $1.59 per share, or 48.77%, to close at $1.67 per share on November 14, 2018, damaging investors. The Pomerantz Firm, with offices in New York, Chicago, Los Angeles, and Paris, is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. CONTACT: Robert S. Willoughby, Esq. Pomerantz LLP Email: rswilloughby@pomlaw.com [GN] JOHNSON & JOHNSON: Hernandez Sues Over Tylenol's Misleading Labels ------------------------------------------------------------------ EDUARDO HERNANDEZ, GREG HOFER, MARGARET CRINER, ROBERT URANTIA, TERRI ELSE, THOMAS BUTLER, GLENN PARKER, and MAURA TUSO, on behalf of themselves and all others similarly situated v. JOHNSON & JOHNSON CONSUMER INC., Case No. 3:19-cv-15679 (D.N.J., July 22, 2019), alleges that J&J sells its Tylenol(R) rapid release gelcaps with false, misleading, deceptive labeling and marketing in an effort to dupe consumers into purchasing these gelcaps for prices that exceed their true value. Despite what J&J's marketing and labeling would have consumers believe, the term "rapid release" does not actually mean that the drug works faster for consumers than non-rapid release products, the Plaintiffs contend. Johnson & Johnson Consumer Inc. is an Indiana foreign corporation that maintains its principal place of business in Skillman, Somerset County, New Jersey. The relevant division of Johnson & Johnson Consumer Inc. is McNeil Consumer Healthcare Division, which is located in Fort Washington, Montgomery County, Pennsylvania. J&J produces, manufactures, markets, and distributes over-the-counter products to families, children, and other consumers worldwide, including analgesic or pain-relieving medicines under the Tylenol(R) brand name.[BN] The Plaintiffs are represented by: Mitchell M. Breit, Esq. SIMMONS HANLY CONROY 112 Madison Avenue, 7th Floor New York, NY 10016-7416 Telephone: (212) 784-6400 Facsimile: (212) 213-5949 E-mail: mbreit@simmonsfirm.com KCG HOLDINGS: Bid to Dismiss Amended Chester Suit Denied -------------------------------------------------------- In the case, CHESTER COUNTY EMPLOYEES' RETIREMENT FUND on behalf of itself and all other similarly situated former stockholders of KCG HOLDINGS, INC., Plaintiff, v. KCG HOLDINGS, INC., DEBRA J. CHRAPATY, DANIEL COLEMAN, PETER R. FISHER, CHARLES E. HALDEMAN, JR., RENE M. KERN, JAMES T. MILDE, JOHN C. (HANS) MORRIS, ALASTAIR RAMPELL, DANIEL F. SCHMITT, LAURIE M. SHAHON, COLIN SMITH, HEATHER E. TOOKES, ADRIAN WELLER, VIRTU FINANCIAL, INC., and JEFFERIES LLC, Defendants, C.A. No. 2017-0421-KSJM (Del. Ch.), Judge Kathaleen S. McCormick of the Court of Chancery of Delaware denied the Defendants' motion to dismiss the amended complaint. In July 2017, Virtu Financial, Inc. acquired KCG for $20 per share. In the case, a former KCG stockholder alleges KCG's directors failed to maximize value for the KCG stockholders in negotiating the merger, largely because of the actions of different influencers at both the beginning and the very end of the process that led to the transaction. At the front end of the process, the Plaintiff points to secret dealings between Virtu and Jefferies, LLC, KCG's largest stockholder and long-time financial advisor, which allegedly undermined the KCG board's ability to extract greater value from Virtu. The Plaintiff contends that beginning in December 2016 and continuing through February 2017, Virtu and Jefferies met and discussed a potential acquisition of KCG. During that time, Jefferies proposed to Virtu that a sale of KCG's standalone bond-trading platform, BondPoint, would increase KCG's tangible book value ("TBV") to over $21 per share. Jefferies even gave Virtu confidential information about BondPoint, information which the Plaintiff alleges Jefferies obtained as KCG's financial advisor. The Plaintiff posits that by mid-February, Virtu and Jefferies had agreed that Jefferies would support a $20 per share deal price, and Virtu would sell BondPoint post-acquisition using Jefferies as its financial advisor. Meanwhile, KCG's board was unaware that Virtu was interested in acquiring KCG until late February. On Feb. 23, 2017, Virtu sent KCG's board a proposal to acquire KCG at a price in the range of $18.50 to $20 per share. At the time, Jefferies was advising KCG's board on a restructuring plan that KCG's management believed was a financially superior alternative to KCG's offer. KCG's board still determined to engage in negotiations with Virtu at Jefferies' recommendation. Just before KCG received Virtu's initial expression of interest, Jefferies informed KCG's board of some -- but not all -- of its discussions with Virtu. Not immediately, but eventually, KCG became suspicious of Jefferies, tried to exclude Jefferies from the sales process, and hired another financial advisor. But Jefferies continued to advise KCG on the restructuring plan and pressure KCG's board to pursue a transaction with Virtu. At the back end of the process, the Plaintiff points to different culprits. In April 2017, Virtu made its best and final bid of $20 per share. Every director except for KCG's CEO, Daniel Coleman, approved a $20.21 per share counteroffer. Coleman told the board that a $20.21 counteroffer was "too low" and that the restructuring plan would create 25% more value than KCG's offer. Still, Coleman promised that he would support the merger if he could negotiate a satisfactory compensation and retention pool for himself and his management team. Coleman's desire to obtain compensation for his management team conflicted with the KCG board's obligation to maximize consideration paid to the KCG stockholders. Despite this conflict, the board authorized Coleman to negotiate simultaneously the compensation pool and deal price. In the end, KCG rejected the $20.21 counteroffer and Coleman negotiated a compensation pool to his satisfaction. Then, the KCG board -- including Coleman -- approved a $20 per share price. Compounding concerns, the night before the board approved the $20 per share price, Coleman and his management team revised the company's financial projections to be more pessimistic. The Plaintiff says that the board approved those revisions over email. KCG's financial advisor then based the fairness opinion on the more pessimistic projections. With the revised projections, the deal price fit squarely in the middle of the financial advisor's discounted cash flow analysis. The Plaintiff commenced the litigation shortly after KCG announced the merger. Initially, it sought a preliminary injunction based on a claim that the merger was subject to anti-takeover measures found in Section 203 of the Delaware General Corporation Law. After discovery on the preliminary injunction motion, KCG issued a new proxy designed to moot the Plaintiff's Section 203 claim, and the Plaintiff withdrew the preliminary injunction motion. Using documents and testimony obtained in the preliminary injunction phase, the Plaintiff amended its complaint to allege that the director Defendants breached their fiduciary duties in negotiating and approving the merger and that Virtu and Jefferies aided and abetted in those breaches. The Plaintiff also asserted a civil conspiracy claim against Virtu and Jefferies. The Defendants have moved to dismiss the complaint. They argue that the merger is subject to the deferential business judgment standard of review under Corwin v. KKR Financial Holdings, LLC because it was approved by a majority of KCG's stockholders in a fully informed, uncoerced vote. However, Judge McCormick finds that the Plaintiff has identified three significant deficiencies in the Defendants' disclosures concerning the merger that render the stockholder vote uninformed. First, the proxy fails to disclose detailed information about the BondPoint divestiture strategy proposed by Jefferies to Virtu. The proxy instead includes an ambiguous statement that Jefferies proposed that "certain divestitures" could raise KCG's TBV, creating the misleading impression that the divestiture strategy was undeveloped. By contrast, the complaint portrays a detailed, BondPoint-specific divestiture strategy informed by confidential financial information not previously disclosed to the stockholders. Next, the proxy fails to disclose Coleman's initial "too low" view of the $20.21 per share counteroffer, later support of the $20 per share deal price, and intervening negotiations of the compensation pool. Last, the proxy fails to disclose the more optimistic, earlier projections presented during the merger negotiations and the circumstances surrounding the creation of the later revised projections. It is reasonably conceivable that a stockholder would view the omitted facts as material and that the information disclosed is materially misleading. Because the Plaintiff alleges facts sufficient to support a finding that the stockholder vote was not fully informed, Corwin does not lead to dismissal. As an independent basis for dismissal, the Defendants argue that the Plaintiff fails to state non-exculpated claims against the director Defendants. The complaint, however, adequately alleges that the director Defendants were fully complicit in the procedural flaws at the back-end negotiations. According to the complaint, the director Defendants knowingly placed Coleman in a position to extract compensation for management at the expense of the per share merger price received by the stockholders. They then approved last-minute revisions to the company's projections that made the deal price more reasonable relative to the company's discounted cash flow valuation. These actions are enough to infer bad faith and state a non-exculpated claim for breach of fiduciary duties. The claims of aiding and abetting and conspiracy against Virtu and Jefferies also survive the Defendants' motion. Claims for breach of the duty of care, though exculpated, provide a valid predicate for claims of aiding and abetting. Here, at a minimum, the Plaintiff's concerns about the front-end process flaws concerning Jefferies and Virtu's secret negotiations adequately state a claim that the director Defendants breached their duty of care. The complaint also adequately alleges that Virtu and Jefferies created the sort of informational vacuum the Court has found sufficient to constitute knowing participation in a breach of fiduciary duties in support of an aiding and abetting claim. Further, the complaint adequately alleges facts from which it can be inferred that Virtu and Jefferies conspired to pursue the merger for their own benefit and to the detriment of the stockholder class. For the foregoing reasons, Judge McCormick denied the Defendants' motion to dismiss. A full-text copy of the Court's June 21, 2019 Order is available at https://is.gd/S9Be1L from Leagle.com. Michael Hanrahan, Paul A. Fioravanti, Jr. -- pafioravanti@prickett.com -- Kevin H. Davenport -- khdavenport@prickett.com -- Samuel L. Closic -- slclosic@prickett.com -- Eric J. Juray -- ejjuray@prickett.com -- PRICKETT, JONES & ELLIOTT, P.A., Wilmington, Delaware; Eric L. Zagar, J. Daniel Albert, Stacey A. Greenspan, Matthew C. Benedict, KESSLER TOPAZ MELTZER & CHECK, LLP, Radnor, Pennsylvania; Counsel for Chester County Employees' Retirement Fund. Daniel A. Mason -- dmason@paulweiss.com -- Brendan W. Sullivan -- bsullivan@paulweiss.com -- PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, Wilmington, Delaware; Andrew G. Gordon, Susanna M. Buergel, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, New York, New York; Counsel for Virtu Financial, Inc. and KCG Holdings Inc. (n/k/a Virtu KCG Holdings LLC). William M. Lafferty, Ryan D. Stottmann, Coleen W. Hill, MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; Counsel for Defendants Debra J. Chrapaty, Daniel Coleman, Peter R. Fisher, Charles E. Haldeman, Jr., Rene M. Kern, James T. Milde, John C. (Hans) Morris, Alastair Rampell, Daniel F. Schmitt, Laurie M. Shahon, Colin Smith, Heather E. Tookes and Adrian Weller. Gregory V. Varallo, Kevin M. Gallagher, Sarah T. Andrade, RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware; Brian A. Herman, John M. Maloy, MORGAN, LEWIS & BOCKIUS LLP; Counsel for Jefferies LLC. KIDS BEHAVIORAL: Bonanini Seeks to Recover Damages Under WARN Act ----------------------------------------------------------------- VALERIE BONANINI, JIM BOOTHE, JOLYNN BROWNING, DENISE BUXTON, MICHELLE CRAWFORD, MYRA DEAVEL, LINDA HARDING, KIMBERLY HOLM, MICHELE HUBERSTEARNS, DARLENE JAEGER, WANDA JOHNSON, COLLEEN KAHM, KATHY KOPF, TAYLER LIEBEL, AMY MARTIN, JEAN PARNELL, PATRICIA PETERSON, BRYNN RALPH, TAWNA REDFERN, PATRICIA ROONEY, CHELSEA ROSALES, LENA SCHWARTZMILLER, SUMMER SHARKEY, SHERRY SPEAR, SHEILA STRATFORD, LELAND SWANSON, NOREEN SWANSON, CHEYENNE TAYLOR, DANA THOMPSON, SARA WELDON, Individually and on Behalf of the Class of All Kids Behavioral Health Employees Similarly Situated v. KIDS BEHAVIORAL HEALTH OF MONTANA, INC., dba ACADIA MONTANA, dba ALTACARE OF MONTANA, Case No. 2:19-cv-00033-BMM-JCL (D. Mont., July 19, 2019), seeks to recover damages under the Worker Adjustment and Retraining Notification Act of 1988 and the Employee Retirement Income Security Act. The Plaintiffs allege that the Defendant violated the WARN Act by failing to give them and the other similarly situated employees at least 60 days' advance written notice of termination as a result of a planned mass layoff and/or plant closing ordered by the Defendant on July 14, 2019. Kids Behavioral Health Of Montana, Inc., doing business as Acadia Montana and Altacare of Montana, is an entity incorporated in the state of Montana, which is doing business in Butte-Silver Bow County and the state of Montana. The Defendant owned and operated its facilities in and out of Butte providing mental health services, residential mental health care and hospitalization to children and providing mental health services to schools and school districts. The Defendant operated under the assumed business names of Altacare and Acadia from the same location.[BN] The Plaintiffs are represented by: Robert G. McCarthy, Esq. MCCARTHY LAW, PC 3738 Harrison Avenue Butte, MT 59701 Telephone: (406) 494-2500 E-mail: bob@mccarthylaw.net KIEWIT CORP: Avila Labor Suit Remanded to California State Court ---------------------------------------------------------------- In the case, MELVIN AVILA, Plaintiff, v. KIEWIT CORPORATION, ET AL., Defendants, Case No. CV 19-1295-PJW (C.D. Cal.), Magistrate Judge Patrick J. Walsh of the U.S. District Court for the Central District of California remanded the case back to Los Angeles County Superior Court. In January 2019, the Plaintiff filed the action in the Superior Court against his former employer, Defendant Kiewit. He claimed that the Defendant failed to pay proper wages, provide meal breaks, etc. He brought the action on behalf of present and past employees similarly situated and sought class certification. In February 2019, the Defendant removed the case to the Court, arguing that federal jurisdiction existed under the Class Action Fairness Act. The Plaintiff now moves to remand the case back to the Superior Court on the ground that the Defendant has not shown that the aggregate amount in controversy exceeds $5 million, a jurisdictional requirement under CAFA. Magistrate Judge Walsh finds that the Defendant complains that it cannot provide additional evidence because the Plaintiff has brought only "off the book" claims -- such as unpaid overtime hours -- for which no records exist. He acknowledges the difficulty the Defendant faces in establishing the amount in controversy at this stage of the proceedings but finds that this is not enough to justify lowering the bar. Further, he notes that remand does not deprive the Defendant of a forum to litigate the case; it only deprives it of litigating the case in its preferred forum. Finally, in his motion for remand, the Plaintiff asks the Court to award $9,100 in attorney's fees because he believes that the Defendant acted unreasonably when he removed the case. The Judge denied this request. Though Defendant was not able to meet its burden of proof in opposing the Plaintiff's motion for remand, that does not mean that it acted unreasonably when it removed the case from state court. It is clear to the Judge that before the ink is dry on this decision, the parties and their counsel will be switching their positions, with the Plaintiff's side arguing that the damages are well above the $5 million mark and the Defendant's camp arguing that they are not. For these reasons, Magistrate Judge Walsh remanded the case to the Superior Court of Los Angeles County. He denid the Plaintiff's request for attorney's fees. A full-text copy of the Court's June 25, 2019 Order is available at https://is.gd/cC22VA from Leagle.com. Melvin Avila, individually, and on behalf of all others similarly situated, Plaintiff, represented by Allen Victor Feghali -- allen.feghali@moonyanglaw.com -- Moon and Yang APC, Howard Scott Leviant -- scott.leviant@moonyanglaw.com -- Moon and Yang APC, Kane Moon -- kane.moon@moonyanglaw.com -- Moon and Yang APC & Lilit Ter-Astvatsatryan , Moon and Yang APC. Kiewit Corporation, a Delaware Corporation, Defendant, represented by Arthur J. Rooney, Baker and McKenzie LLP, pro hac vice & Michael David Hidalgo -- michael.hidalgo@bakermckenzie.com -- Baker and McKenzie LLP. LANNETT COMPANY: Class Action Survives Motion to Dismiss -------------------------------------------------------- The Law Offices of Timothy L. Miles, who has been leading the fight to protect shareholder rights for over 18 years, announces that Lannett Company (LCI) may face damages caused by a pending securities lawsuit action lawsuit. Lannett develops, manufactures, packages, markets, and distributes generic versions of brand pharmaceutical products in the United States. Investors filed a class action complaint against Lannett for alleged violations of the Securities Exchange Act of 1934. According to the complaint, since 2013, Lannett's business strategy has been to collusively enter into industry-wide anti-competitive agreements with other generic drug manufacturers. Extensive regulatory investigations revealed that Lannett was involved in an industry-wide conspiracy to fix prices and allocate territories for the sale of at least 18 different generic medications. Nevertheless, Lannett insiders misled investors by stating that price increases were the result of legitimate and competitive market forces contrary to their knowledge that the market was being driven by antitrust violations. The complaint further alleges that Lannett insiders misrepresented the scope of their investigations into potential antitrust violations and the likelihood that Lannett would be implicated in the broader price-fixing procecutions. Capitalizing on Lannett's artificially inflated stock prices, certain executives made nearly $10 million in insider sales. As a result of its price-fixing, Lannett is now defending itself against regulatory inquiries and investigations and private lawsuits alleging securities fraud, consumer deception, and violations of state and federal antitrust laws. On May 15, 2019, U.S. District Court Judge Wendy Beetlestone denied Lannett's motion to dismiss plaintiffs' complaint, paving the way for litigation to proceed. If you purchased Lannett securities, have information, or would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Timothy L. Miles, Esquire, at 615-587-7384, Toll-Free at 855-846-6529, or by email to tmiles@timmileslaw.com. If you inquire by email please include your mailing address, telephone number, and the number and dates of shares purchased. Timothy L. Miles is a nationally recognized shareholder rights attorney from Nashville, Tennessee. Mr. Miles maintains the AV Preeminent Rating by Martindale-Hubbell, their highest rating for both legal ability and ethics, and is a is a member of the prestigious Top 100 Civil Plaintiff Trial Lawyers: The National Trial Lawyers Association, and is also a supurb rated attorney by Avvo, and the only class action lawyer in Nashville with an Avvo rating of 10, their highest rating available. Awards: Member of the Top 100 Civil Plaintiff Trial Lawyers: The National Trial Lawyers Association (2017-2019); AV® Preeminent(TM) Rating by Martindale-Hubble(R) (2014-2019); PRR AV Preeminent Rating on Lawyers.com (2017 & 2019); The Top-Rated Lawyer in Litigation(TM) for Ethical Standards and Legal Ability (Martindale-Hubble(R) 2015); Superb Rated Attorney (Avvo); Avvo Top Rated Lawyer for 2017 & 2018 (Avvo); Distinguished Lawyer (Lawyers of Disinction, 2019); America's Most Honored Professionals 2018 - Top 1% (The American Registry 2016-2018). Contact: Timothy L. Miles, Esq. Law Offices of Timothy L. Miles 124 Shiloh Ridge Hendersonville, TN 37075 Telephone: (855-846-6529) Website: www.timmileslaw.com Email: tmiles@timmileslaw.com [GN] LEE LAW OFFICES: Shanahan FDCA Suit Settlement Has Final Approval ----------------------------------------------------------------- In the case, TIMOTHY J. SHANAHAN JR. and MOLLI M. LARSEN, on behalf of themselves and all others similarly situated, Plaintiffs, v. LEE LAW OFFICES, et al., Defendants, Case No. 8:18-CV-129 (D. Neb.), Judge John M. Gerrard of the U.S. District Court for the District of Nebraska granted (i) the parties' Joint Motion for Final Approval of Class Settlement, and (ii) the Plaintiffs' Unopposed Motion for Approval of Plaintiffs' Incentive Awards & Damages and Plaintiffs' Attorneys' Fees and Costs. The action was filed on March 23, 2018, and the settlement agreement at issue was executed by the parties on Oct. 30, 2018. The parties filed a joint motion, pursuant to Fed. R. Civ. P. 23(b) and (e), to certify the settlement class, preliminarily approve the settlement agreement, and approve the form and manner of notice to the class. In an order entered Feb. 19, 2019, the Court granted that motion. The Court designated class representatives, appointed settlement class counsel and a claims administrator, and scheduled a fairness hearing. On June 4, the present motion to approve the class settlement was filed, along with a brief and index of evidence in support. The scheduled fairness hearing was held on June 20, at which no objecting class members or other objectors appeared. Judge Gerrard finds that the settlement agreement is fair, reasonable, and adequate within the meaning of Rule 23(e)(2), and will approve it. He will grant the Joint Motion for Final Approval of Class Settlement. The settlement provides for attorney's fees and costs in the amount of $28,500. The Judge is aware that the separate negotiation of attorney fees, and the settling Defendants' agreement not to contest fees up to a point, may present an opportunity for abuse. But he finds no basis to suspect any type of abuse or collusion. He also notes that the potential award of fees and expenses was disclosed in the notices to class members, including the amount, and no objections were received. Accordingly, he will grant the Plaintiffs' requested attorney's fees. The Defendants have agreed to pay compensation to the class representatives of $9,000 ($4,500 each, paid by the Defendants over and above the class action settlement fund). That's based on awarding $1,000 each for each of their claims -- that is, $1,000 for the FDCPA claim and another $1,000 for the NCPA claim -- and an incentive award of $2,500 each. The Judge finds that they are fair, reasonable, and properly based in the benefits to the class members generated by the litigation. He will award the requested incentives. Based on the foregoing, Judge Gerrard granted (i) the parties' Joint Motion for Final Approval of Class Settlement, and (ii) the Plaintiffs' Unopposed Motion for Approval of Plaintiffs' Incentive Awards & Damages and Plaintiffs' Attorneys' Fees and Costs. The certification of the settlement class, under Rules 23(b)(3) and 23(e), solely for settlement purposes, is confirmed: All persons with addresses in Nebraska to whom the defendants sent, or caused to be sent, a letter in the form of Filing 29-1 or Filing 29-2 in an attempt to collect an alleged obligation which, as shown by the nature of the alleged obligation, the defendants' records, or the records of the original creditors, was primarily for personal, family, or household purposes. The FDCPA class extends from March 23, 2017 through March 23, 2018. The NCPA class extends from March 23, 2014 through March 23, 2018. The settlement agreement is approved in all respects, and the parties are directed to perform and satisfy the terms and conditions of the settlement agreement. The settlement classes are awarded $25,000 ($600 to the FDCPA class and $24,400 to the NCPA class) as statutory damages to be distributed on a pro rata basis among the class members. Any undistributed amounts are awarded as a cy pres remedy to Legal Aid of Nebraska, for use in consumer representation and/or consumer education. The Defendants agree that they will no longer send letters in the form of filing 29-1 or filing 29-2, containing a Voluntary Appearance form, to Nebraska residents. Filing 48-4 shows proper distribution of the settlement funds to the class members. Checks will be made payable to the class member, unless the Class Administrator has received an indication that the class member is deceased, in which case the settlement check may be made payable to the estate. Pursuant to Rule 23, the Judge finally certified Timothy J. Shanahan, Jr. and Molli M. Larsen as the class representatives; and William L. Reinbrecht and Pamela A. Car of the law firm Car & Reinbrecht, and O. Randolph Bragg of the law firm Horwitz, Horwitz & Associates, Ltd., as the Class Counsel. Timothy J. Shanahan, Jr. and Molli M. Larsen are each awarded $4,500 as statutory damages and as an incentive award for their services as class representatives. The Plaintiffs' counsel are awarded the amount of $28,500 as reasonable costs and attorney's fees. The Judge dismissed with prejudice the case. A separate judgment will be entered. A full-text copy of the Court's June 25, 2019 Memorandum and Order is available at https://is.gd/scQbTjc from Leagle.com. Timothy J. Shanahan, Jr., on behalf of themselves and all others similarly situated & Molli M. Larsen, on behalf of themselves and all others similarly situated, Plaintiffs, represented by O. Randolph Bragg -- rand@horwitzlaw.com -- HORWITZ, HORWITZ LAW FIRM, Pamela A. Car, CAR, REINBRECHT LAW FIRM & William L. Reinbrecht -- billr205@gmail.com -- CAR, REINBRECHT LAW FIRM. Lee Law Offices, Dennis P. Lee, Jimmy Newton & Dennis P. Lee, P.C., L.L.O., doing business as Lee Law Office, Defendants, represented by Christopher M. Schmidt -- cschmidt@baylorevnen.com -- BAYLOR, EVNEN LAW FIRM & Randall L. Goyette -- rgoyette@baylorevnen.com -- BAYLOR, EVNEN LAW FIRM. LOS LUNAS CENTER: Settlement in Jackson Suit Has Final Approval --------------------------------------------------------------- In the case, WALTER STEVEN JACKSON, et al., Plaintiffs, v. LOS LUNAS CENTER, et al., Defendants, and THE ARC OF NEW MEXICO, Intervenors, and MARY TERRAZAS, et al., Intervenors, pro se, Case No. CIV 87-839 JAP/KBM (D. N.M.), Judge James A. Parker of the U.S. District Court for the District of New Mexico granted the parties' Joint Motion for Final Approval of Settlement Agreement. The civil rights class action began 32 years ago on July 8, 1987 when 21 individual developmentally disabled citizens of New Mexico on behalf of themselves and other similarly situated individuals ("JCMs") filed a complaint to "redress the unconstitutional and illegal conditions" at Fort Stanton Hospital and Training School and Los Lunas Hospital and Training School (Los Lunas) (jointly, institutions) that operated, in part, with federal funds.10 Defendants were the institutions and individuals operating the institutions. On June 27, 1988, the Court granted parents and guardians of some of the residents of the institutions leave to intervene, which they did on July 6, 1988. On Oct. 16, 1989, the merits trial commenced. On Dec. 28, 1990, the Court ruled that the Defendants had violated the JCMs' rights under Section 504 of the Rehabilitation Act and the substantive due process clause of the Fourteenth Amendment of the United States Constitution. Since 1990, the parties have attempted to resolve compliance issues and achieve disengagement of the Defendants' obligations to the JCMs. On April 17, 2019, the parties jointly filed a motion asking the Court to give preliminary approval to the Settlement Agreement. On April 18, 2019, the Court held a hearing on the motion. During the hearing, the counsel clarified provisions of the Preliminary SA. On April 19, 2020, the Court approved the Preliminary SA as clarified and directed the parties to issue Notice to all the Plaintiff Class Members and Intervenors. On June 4, 2019, the parties filed their Joint Motion for Final Approval, Joint Memorandum, and final Settlement Agreement, which as directed by the Court's Preliminary Approval Order, clarified the language of the Preliminary SA. The parties structured the Settlement Agreement to close the gap between the Defendants' policies and actions and thereby establish a durable remedy. The Settlement Agreement contemplates a deadline of 18 months from the Court's final approval for completion of its terms. The Settlement Agreement replaces all existing orders of the Court except Jackson by Jackson v. Fort Stanton Hosp. and Training School ("Jackson I"), the Memorandum and Order approving the motion to amend the complaint and the Memorandum and Order on class reconfiguration. However, the Settlement Agreement incorporates, as of the date of its entry, current New Mexico state policies, procedures, practices, and waiver standards. The Settlement Agreement also introduces a new agreement: the Qualified Provider Agreement Initiative ("QPAI"). The QPAI is a revised provider agreement between the New Mexico Department of Health47 Developmental Disability Supports Division ("DDSD") and community providers of developmental disability services. The Settlement Agreement describes seven action provisions that the Defendants will complete to fulfill their obligations to the JCMs. Six of the action provisions are substantive48 and include: Incident Management, Mortality Review, Health, Provider Oversight, Supported Employment, and Individual Quality Review ("IQR"). The actions provisions obligate the Defendants to do the following: a. The Defendants will eliminate the backlog of incident investigations, will conduct timely and adequate investigations, and will take necessary remedial actions as required by the current policies and procedures of the Division of Health Improvement of the New Mexico Department of Health ("DHI"s). b. By Dec. 31, 2019, the Defendants will eliminate the backlog of outstanding mortality reviews. Going forward they will conduct timely and adequate mortality reviews and take remedial actions as required by the current DOH/DHI policies. c. There are three subdivisions under this action provision: medical, behavior, and case management. Each subdivision addresses the needs of the JCMs designated high-acuity or with high behavioral needs and provides a mechanism for evaluating individuals not currently designated high-acuity. The Defendants are required to provide health related services as required by the current waiver standards. d. Provider Oversight - This subsection implements the QPAI and contemplates enforcement of its terms through DOH contract management policies and IRC policies. e. The Defendants ensure they will assess each working age class member's abilities and interests as required by their policies, procedures, and waiver standards. f. By June 30, 2020, the current Community Monitor will have transferred the IQR process to DHI and will cease serving as Community Monitor. On June 12, 2019, the Court held a hearing on final approval of the Settlement Agreement. After considering the long history of the case, the Settlement Agreement, the arguments of counsel, and the comments of pro se Intervenor, guardians and/or family representatives of members of the class, Judge Parker granted the parties' Joint Motion to Approve Settlement Agreement, and approved the Settlement Agreement as revised. Additionally, he vacated the Scheduling Order. Moreover, he vacated all other orders in the case except Jackson I. A full-text copy of the Court's June 21, 2019 Memorandum Opinion and Order is available at https://is.gd/KGY00n from Leagle.com. Walter Stephen Jackson, by his parents and next friends, Walter and Helen Jackson, Steve Nunez, by his guardian and next friend, Mary Kathryn Reed, Mildred Tsosie, by her next friend, Polly Arango, Mary Katherine Nowak, by her next friend, James W. Ellis, Esquire, Lillian Willmon, by her next friend, Arthur Grumblatt, Andra Martinez, by her next friend, Paula Duvall, Clinton Heath, by his next friend, Belva Heath, Shawn Heath, by next friend, Belva Heath, Richard Stanfield, by his father and next friend, The Reverend Clyde Stanfield, Joseph Gonzales, by his mother and next friend, Charlotte Gonzales, Sean McHenry, by his next friend, Robert Desiderio, Esquire, Alfred Shirley, by his next friend, Frederick Hart, Esquire, James Fritche, by his next friend, Sally Dehon, Roseann Crockett, by her next friend, Robert McNeill, Esquire, Andre Armenta, by his mother and next friend, Loretta Armenta, Kelli Van Curen, by her parents and next friends, Ted and Sallie Van Curen, Lacey Walker, by her mother and next friend, Sandra Walker, Kim Lautenschlager, by her mother and next friend, Dale Lautenschlager, William Thomas, by his parents and next friends, James and Elizabeth Thomas; on behalf of themselves and all others similarly situated & Developmentally Disabled New Mexicans, Inc, Supporters of, on behalf of its members, Plaintiffs, represented by Ann Tilford McCartney -- asims98891@aol.com -- Cathy Costanzo -- ccostanzo@cprâˆ’ma.org -- Center for Public Representation, Nancy Koenigsberg -- nkoenigsberg@drnm.org -- Disability Rights New Mexico, Peter Cubra -- pcubra@qwestoffice.net -- Law Office of Peter Cubra, Philip B. Davis -- phil@davislawnm.com -- Philip B. Davis, Attorney at Law,Steven Schwartz -- sschwartz@cprâˆ’ma.org -- Center for Public Representation & Tim Gardner -- tgardner@drnm.org -- Protection & Advocacy System. Fort Stanton Hospital and Training School, All State Defendants as listed on manual docket, Los Lunas Center for Persons with Developmental Disabilities & Jack Callaghan, New Mexico Department of Health, Secretary of, Defendants, represented by Jerry A. Walz , Walz and Associates. New Mexico Human Services Department, Defendant, represented by Paul R. Ritzma & Jerry A. Walz, Walz and Associates. ARC of New Mexico, Intervenor, represented by Maureen A. Sanders, Sanders & Westbrook, PC. LYNDON DINER WEST: Brown Labor Suit Hits FLSA Breach ---------------------------------------------------- Crystalle Brown, on behalf of herself and similarly situated employees, Plaintiff, v. Lyndon Diner West, Inc., Defendant, Case No. 19-cv-01227 (M.D. Pa. July 17, 2019), seeks all available relief under the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act. Defendant owns and operates the Lyndon Diner located at 1353 Kenneth Road, York where Brown was employed as a server. Lyndon allegedly utilizes a "tip credit" for each hour worked by Brown without providing any notice explaining the tip credit or the manner in which the tip credit is implemented. [BN] Plaintiff is represented by: Peter Winebrake, Esq. R. Andrew Santillo, Esq. Mark J. Gottesfeld, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Phone: (215) 884-2491 Facsimile: (215) 884-2492 Email: pwinebrake@winebrakelaw.com MALLARD COMPLETIONS: Does not Properly Pay Workers, Parks Says -------------------------------------------------------------- John Parks, Tracy Ledlow, George Garcia, and Kustuss Phillips, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs v. Mallard Completions, LLC, and Ranger Energy Services, LLC, Defendant, Case No. 7:19-cv-00184 (S.D. Fla., July 26, 2019) is a civil action brought by Plaintiffs, each individually and on behalf of all others similarly situated, pursuant to the federal Fair Labor Standards Act, and the federal Portal to-Portal Pay Act, for Defendants' misclassification of the pump-truck supervisors as employees exempt from the overtime requirements of the FLSA and their resulting failure to pay them time and one-half their regular rates of pay for all hours worked over 40 during each seven-day workweek. The Defendants did not make, keep or require an accurate record of hours worked by Plaintiffs on a daily basis. Plaintiffs were non-exempt employees under the FLSA, and when they worked more than 40-hours in a seven-day workweek, they were entitled to be paid overtime premium compensation at one and one-half times their respective regular rates of pay for each and every hour worked over 40, says the complaint. Plaintiffs worked as pump-truck supervisors for Defendants. Mallard maintains multiple yards in Texas from which it offers pressure pumping services to the oilfield industry.[BN] The Plaintiffs are represented by: John M. Rogers, Esq. Alyssa S. Turner, Esq. ROGERS, LLP 409 West 4th Street, Ste. 102 Post Office Box 2530 Weatherford, TX 76086 Phone: 817.341.9300 Fax: 817.341.9301 Email: john.rogers@rogersllp.com alyssa.turner@rogersllp.com MANTEI & ASSOCIATES: Removes Black et al. Suit to D. S.C. --------------------------------------------------------- The Defendant in the case of DONALD BLACK; MARCIA BLACK; LARRY MARTIN; REBECCA MARTIN; BARBARA THOMPSON; and JAMES THOMPSON, individually and on behalf of all others similarly situated, Plaintiffs v. MANTEI & ASSOCIATES, LTD.; RICKY ALAN MANTEI; CINDY CHIELLINI; CENTAURUS FINANCIAL, INC.; and J.P. TURNER & COMPANY, L.L.C., Defendants, filed a notice to remove the lawsuit from the Circuit Court of the State of South Carolina, County of Lexington (Case No. 2019-CP-32-02636) to the U.S. District Court for the District of South Carolina on July 26, 2019. The clerk of court for the District of South Carolina assigned Case No. 3:19-cv-02097-MGL. Mantei and Associates Ltd is in the management consulting services business. [BN] The Defendants are represented by: Michael H. Montgomery, Esq. Montgomery Willard, LLC 1002 Calhoun Street Post Office Box 11886 Columbia, SC 29211 Telephone: (803) 779-3500 E-mail: mhm@montgomerywillard.com - and - Joel H. Smith, Esq. Kevin J. Malloy, Esq. Bowman and Brooke LLP 1441 Main Street, Suite 1200 Columbia, SC 29201-2897 Telephone: (803) 726-7422 E-mail: Joel.Smith@bowmanandbrooke.com Kevin.Malloy@bowmanandbrooke.com MDL 2672: Court Denies Bosch's Bid for Lone Pine CMO ---------------------------------------------------- The United States District Court for the Northern District of California issued an Order denying Bosch's Motion for Entry of Lone Pine Order in the case captioned IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION. This Order Relates To: MDL Dkt. Nos. 6358, 6359 Napleton, No. 3:16-cv-2086-CRB. MDL No. 2672 CRB (JSC). (N.D. Cal.). In the Volkswagen franchise dealers' putative class action against Bosch, Bosch has filed a motion for entry of a Lone Pine case management order. In support of the motion, Bosch argues (i) that the evidence produced in discovery proves that the three named plaintiffs have no recoverable damages, (ii) that it is correspondingly doubtful that any of the putative class members have recoverable damages, and (iii) that before the parties embark on further expensive litigation, the Court should require putative class counsel to circulate a Lone Pine questionnaire to each putative class member to elicit information about the factual basis for any damages they have in this matter. With its motion, Bosch has included a proposed Lone Pine questionnaire. Discovery from absent class members is generally discouraged and the Court concludes that such discovery is currently unnecessary here. There is no need to canvass absent class members about their damages at least until Bosch proves as it claims that the three named plaintiffs have no recoverable damages. To prove that the named plaintiffs lack recoverable damages, Bosch should file a motion for summary judgment. Bosch has leave to file such a motion, but its request for a Lone Pine order is premature. The Court denies Bosch's motion for entry of a Lone Pine order and vacates the scheduled hearing on the motion. A full-text copy of the District Court's July 22, 2019 Order is available at https://tinyurl.com/y3ooq3ds from Leagle.com. Nicholas Benipayo, Plaintiff, represented by Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice, Thomas Eric Loeser -- toml@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice & Robert B. Carey -- rob@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. James Babiak, Jonathon Horacek & Alfred Howe, Plaintiffs, represented by Robert B. Carey, Hagens Berman Sobol Shapiro LLP, pro hac vice & Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice. Nadine Bonda, Plaintiff, represented by Adam M. Stewart -- astewart@shulaw.com -- Shapiro Haber & Urmy LLP & Thomas G. Shapiro -- tshapiro@shulaw.com -- Shapiro Haber and Urmy, LLP. Brian Connelly, Plaintiff, represented by Thomas G. Shapiro, Shapiro Haber and Urmy, LLP. Volkswagen Group of America, Inc., a New Jersey Corporation, Defendant, represented by Amie Adelia Vague, Lightfoot Franklin & White, Casey Erin Lucier -- clucier@mcguirewoods.com -- McGuireWoods LLP, Charles J. Baker, III, Womble Carlyle Sandridge and Rice, Po Box 999, Charleston, SC, 29402-0999, Colin Hampton Tucker, Rhodes Hieronymus Jones Tucker & Gable, 620 North Robinson #203, Oklahoma City, OK 73102, Dana Woodrum Lang, Womble Carlyle Sandridge and Rice, Po Box 999, Charleston, SC, 29402-0999, David M. Eisenberg -- eisenberg@bscr-law.com -- Baker, Sterchi, Cowden & Rice, LLC, Henry Buist Smythe, Jr., Womble Carlyle Sandridge and Rice, Po Box 999, Charleston, SC, 29402-0999, Howard Feller -- hfeller@mcguirewoods.com -- McGuireWoods LLP, William R. Scherer, Conrad and Scherer, LLP, 633 South Federal Highway, Eighth Floor, Fort Lauderdale, FL, 33301-3164, J. Randolph Bibb, Jr.- rbibb@lewisthomason.com -- Lewis, Thomason, King, Krieg & Waldrop, P.C. MIDLAND FUNDING: Can Compel Arbitration in George FDCPA Suit ------------------------------------------------------------ In the case, ALISON GEORGE, individually and on behalf of those similarly situated, Plaintiff, v. MIDLAND FUNDING, LLC; MIDLAND CREDIT MANAGEMENT, INC.; and JOHN DOES 1 TO 10, Defendant, Docket No. 18-cv-15830 (D. N.J.), Judge William J. Martini of the U.S. District Court for the District of New Jersey granted Midland's Motion to Compel Arbitration and Dismiss the Complaint. George brings the putative class action against Midland for alleged violations of the Fair Debt Collection Practices Act ("FDCPA"). The Plaintiff allegedly incurred personal debts on a Citibank Sears credit card that became past due and in default. The debts were subsequently "assigned, placed, transferred or sold" to Defendants Midland Funding, LLC and Midland Credit Management for collection. To collect the debts, Midland sent two letters to the Plaintiff which allegedly contained a "false threat of interest" accruing on the amount of the stale debt. The Plaintiff alleges that these letters stated that she had a "current balance" of $6,483.88 and deceptively created the false impression that interest and fees she agreed to under the Terms and Conditions of her Citibank Sears credit card agreement were accruing on the "balance." In reality, the Plaintiff's debt had been purchased from Citibank by Midland and no further interest or fees were accruing. The Plaintiff alleges that these letters were deceptive given the Plaintiff's understanding and belief that, under the terms and conditions applicable to her use of the Account, interest, late charges, and other charges and fees (such as annual fees) could accrue. In addition, she also alleges that the letters contained additional violations of the FDCPA because they failed to disclose that she had no legal liability as to the stale debt because any legal action would be barred by the statute of limitations. The Plaintiff attaches to her complaint copies of the letters she received, but she does not attach a copy of the credit card agreement with Citibank or any documents related to Defendants' eventual purchase of her stale debt. Based on these allegations, the Plaintiff asserts a single claim for violation of the FDCPA and proposes to represent two subclasses of New Jersey residents receiving similar collection letters from Midland. The Defendants move to compel arbitration and dismiss the action. The Agreement contains an arbitration clause, and the Defendants assert that the Plaintiff's claims arise from debts incurred pursuant to the Agreement. Based on the provision and the assignment contract, the Defendants argue that the Court should apply the standard under FRCP 12(b)(6), find that the Federal Arbitration Act requires enforcement of the arbitration provision found in the Agreement and compel arbitration. In opposition, the Plaintiff argues that the Court should deny the motion to compel arbitration and allow her to request limited discovery on the question of arbitrability because it is not apparent from the face of her complaint or the documents attached to it that the action is governed by an enforceable arbitration agreement. Judge Martini concludes that the Agreement broadly incorporates any claim related to the Agreement, including claims asserted against debt collectors or assignees like Defendants. The Agreement further contains a class action waiver and requires any questions related to arbitrability and the enforceability of the arbitration agreement must be resolved in arbitration. The Judge is satisfied that there is a valid agreement to arbitrate and that it covers the claims alleged in the complaint. For these reasons, the Judge granted the Defendants' Motion to Compel Arbitration. A full-text copy of the Court's June 25, 2019 Opinion is available at https://is.gd/Vx76pa from Leagle.com. ALISON GEORGE, individually and on behalf of those similarly situated, Plaintiff, represented by YONGMOON KIM -- jhk@thekimlawfirm.com -- Kim Law Firm LLC. MIDLAND FUNDING, LLC & MIDLAND CREDIT MANAGEMENT, INC., Defendants, represented by DANA BRETT BRIGANTI -- dbriganti@hinshawlaw.com -- HINSHAW & CULBERTSON LLP & ELLEN BETH SILVERMAN -- esilverman@hinshawlaw.com -- HINSHAW & CULBERTSON LLP. MIDLAND FUNDING: Can't Compel Arbitration in Ramirez FDCPA Suit --------------------------------------------------------------- In the case, GABRIELA RAMIREZ, FIDELA AVINA, RUEL NIETO, KATHERINE RANOS, and EVALINA GONZALEZ, Plaintiffs, v. MIDLAND FUNDING, LLC, MIDLAND CREDIT MANAGEMENT, INC., and ENCORE CAPITAL GROUP, INC., Defendants, Case No. 17-cv-2626 (N.D. Ill.), Judge Jorge L. Alonso of the U.S. District Court for the Northern District of Illinois, Eastern Division, denied the Defendants' motion to compel arbitration. After the Plaintiffs received allegedly misleading collection letters sent by Defendant Midland Credit Management, LLC, they filed a one-count purported class action complaint alleging three Defendants violated the Fair Debt Collection Practices Act ("FDCPA"). The Plaintiffs are individuals who applied for and used credit cards whose card agreements contained arbitration provisions. They allege that they were unable to pay their debts and that the Defendants violated the FDCPA in attempting to collect the debts. After plaintiffs were unable to pay their debts, their debts were purchased by Defendant Midland Funding, LLC ("Midland"). The Defendants have submitted the agreements by which the various creditors assigned plaintiffs' respective debts to Midland. Midland, according to the Defendants' disclosure statement, is an indirect subsidiary of Defendant Midland Credit Management, Inc. ("MCM"), which, in turn, is a wholly-owned subsidiary of Defendant Encore. The Plaintiffs allege that after Midland purchased their respective debts, Midland "retained MCM to assist with collection." They further allege that MCM sent collection letters to the Plaintiffs and that the letters violated the FDCPA by including the sentence, "If the account goes to an attorney, our flexible options may no longer be available to you." The Plaintiffs seek to hold Midland and Encore liable as entities with a burden to monitor MCM. The Defendants have filed a joint motion to compel arbitration. The Plaintiffs argue that their claims are outside the scope of the arbitration provisions. Each Plaintiff brings one claim, alleging the Defendants violated the FDCPA when MCM sent her/him a collection letter. Judge Alonso finds that the Plaintiffs' FDCPA claims are within the scope of their respective arbitration agreements. The claims arising out of a letter sent in an attempt to collect a debt on an account are related to the account. Accordingly, the Judge agrees with the Defendants that the Plaintiffs' claims are within the scope of the arbitration agreements. Next, the Judge considers who may enforce the arbitration agreements. In the case, all three Defendants seek to enforce the arbitration agreements, but none was an original party to the card agreements in the case. Under Utah law, the assignment of an interest in a contract gives the assignee the same rights as the assignor and nothing more. Midland, which stands in the shoes of the original creditors with respect to the card agreements applicable to Avina, Gonzalez and Nieto, may enforce the arbitration clauses against those Plaintiffs. However, MCM cannot enforce the arbitration clause in the agreements applicable to Avina, Gonzalez and Nieto. Under Utah law, an agent cannot enforce for its own benefit its principal's arbitration agreement. Encore has not shown it can enforce the arbitration clauses in the agreements applicable to Avina, Gonzalez and Nieto. The Judge also finds South Dakota law is more generous than is Utah law with respect to enforcement of arbitration agreements by nonsignatories. The Plaintiffs' claims against the Defendants all arise out of the same letter sent to the Plaintiffs. Accordingly, he concludes that, under South Dakota law, Defendants Encore and MCM can enforce the arbitration provisions applicable to Ranos and Ramirez just as Midland, the assignee, can. Finally, the Plaintiffs argue that the Defendants have waived the right to arbitrate. The Judge concludes that the Defendants waived any right to arbitrate the claims in the case. He does not agree that the filing of a lawsuit on one claim constitutes a waiver of the right to arbitrate every subsequent claim. The arbitration agreements in the case are written to allow either party to elect arbitration on any claim; they are not written to require the parties to arbitrate every claim. The Defendant did not waive its right to arbitrate the FDCPA claim in the case merely by filing an earlier, separate claim to collect the debt on the account. Also, other things the Defendants have done in the case are suggestive of an intent to litigate, rather than in arbitration. Nowhere in their motion to reassign did defendants mention arbitration or suggest they intended to move to compel arbitration. For the reasons set forth, Judge Alonso denied the motion to compel arbitration. The case is set for status on July 24, 2019 at 9:30 a.m. A full-text copy of the Court's June 21, 2019 Memorandum Opinion and Order Order is available at https://is.gd/xmdf1m from Leagle.com. Gabriela Ramirez, Plaintiff, represented by Andrew Finko, Andrew Finko P.C., Holly Rose McCurdy -- info@communitylawyersgroup.com -- Community Lawyers Group, Ltd, Michael Jacob Wood, Community Lawyers Group, Ltd. & Celetha Chatman, Community Lawyers Group, Ltd. Fidela Avina, Ruel Nieto, Evalina Gonzalez & Katherine Ranos, Plaintiffs, represented by Andrew Finko, Andrew Finko P.C. & Celetha Chatman, Community Lawyers Group, Ltd. Midland Funding LLC & Midland Credit Management, Inc, Defendants, represented by David M. Schultz -- dschultz@hinshawlaw.com -- Hinshaw & Culbertson LLP, Todd Philip Stelter , Hinshaw & Culbertson LLP, Brandon S. Stein -- tstelter@hinshawlaw.com -- Hinshaw & Culbertson LLP & Lindsey A.L. Conley -- lconley@hinshawlaw.com -- Hinshaw & Culbertson LLP. Encore Capital Group, Inc., Defendant, represented by Todd Philip Stelter, Hinshaw & Culbertson LLP & Lindsey A.L. Conley, Hinshaw & Culbertson LLP. MLB HOTEL MANAGER: Nelson Sues Over Unpaid Minimum, Overtime Wages ------------------------------------------------------------------ CRISTY NELSON, on behalf of herself and others similarly situated, Plaintiff, v. MLB HOTEL MANAGER, LLC, a Florida limited liability company, and MLB FAIRWINDS, LLC, a Florida limited liability company, Defendants, Case No. 1:19-cv-23117-XXXX (S.D. Fla., July 26, 2019) is a Collective Action Complaint for unpaid minimum and overtime wages, liquidated damages, return of tips wrongfully taken, and other relief under the Fair Labor Standards Act of 1938. The Defendants knowingly, willfully, or with reckless disregard carried out their illegal pattern or practice of suffering or permitting Plaintiff and Class Members to work without paying them for all hours worked, and to require them to participate in an illegal tip pool, says the complaint. Plaintiff was a non-exempt employee who worked as a tipped employee (server) for Defendants at their restaurant, La Sombra, during the period from January, 2019 to June 18, 2019. Defendants own and operate the restaurant La Sombra.[BN] The Plaintiff is represented by: Robert W. Brock II, Esq. Law Office of Lowell J. Kuvin 17 East Flagler Street, Suite 223 Miami, FL 33131 Phone: 305.358.6800 Fax: 305.358.6808 Email: robert@kuvinlaw.com legal@kuvinlaw.com MONSANTO COMPANY: Brogan Sues over Sale of Herbicide Roundup ------------------------------------------------------------ DENIS BROGAN, the Plaintiff, v. MONSANTO COMPANY, the Defendants, Case No. 4:19-cv-02062 (E.D. Mo., July 22, 2019), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiff maintains that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiff brings this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiff is represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MONSANTO COMPANY: Browns Sue over Sale of Herbicide Roundup ----------------------------------------------------------- JOHN T. BROWN and MARY ANN BROWN, the Plaintiffs, v. MONSANTO COMPANY, the Defendants, Case No. 4:19-cv-02067 (E.D. Mo., July 22, 2019), seeks to recover damages suffered by the Plaintiffs, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. John T. Brown's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiffs are represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MONSANTO COMPANY: Case Sues over Sale of Herbicide Roundup ---------------------------------------------------------- LEWIS CASE, the Plaintiff, v. MONSANTO COMPANY, the Defendants, Case No. 4:19-cv-02069 (E.D. Mo., July 22, 2019), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiff maintains that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiff brings this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiff is represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MONSANTO COMPANY: D'Heur Sues over Sale of Herbicide Roundup ------------------------------------------------------------ BEVERLY D'HEUR, the Plaintiff, v. MONSANTO COMPANY, the Defendants, Case No. 4:19-cv-02075 (E.D. Mo., July 22, 2019), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiff maintains that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiff brings this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiff is represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MONSANTO COMPANY: Hineses Sue over Sale of Herbicide Roundup ------------------------------------------------------------ EDITH and ALVIN HINES, the Plaintiffs, v. MONSANTO COMPANY, the Defendants, Case No. 4:19-cv-02080 (E.D. Mo., July 22, 2019), seeks to recover damages suffered by the Plaintiffs, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. Edith Hines's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiffs are represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MONSANTO COMPANY: Mitchells Sue over Sale of Herbicide Roundup -------------------------------------------------------------- ATON MITCHELL and DENISE COX MITCHELL, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:19-cv-02121 (E.D. Mo., July 23, 2019), seeks to recover damages suffered by the Plaintiffs, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. Aton Mitchells' 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: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MUTUAL FUND: Emerson Securities Suit Dismissed With Prejudice ------------------------------------------------------------- In the case, ROGER EMERSON, MARY EMERSON, ROBERT CAPLIN and MARTHA J. GOODLETT, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. MUTUAL FUND SERIES TRUST, CATALYST CAPITAL ADVISORS LLC, NORTHERN LIGHTS DISTRIBUTORS LLC, JERRY SZILAGYI, TOBIAS CALDWELL, TIBERIU WEISZ, BERT PARISER, and ERIK NAVILOFF, Defendants, Case No. 2:17-cv-02565 (ADS)(GRB)(E.D. N.Y.), Judge Arthur D. Spatt of the U.S. District Court for the Eastern District of New York (i) granted the Defendants' motion to dismiss the Amended Complaint in its entirety, and (ii) dismissed the Plaintiffs' claims with prejudice. On April 28, 2017, the Plaintiffs brought the putative class action on behalf of certain persons who purchased shares of the Fund seeking to pursue remedies under the Securities Act of 1933, against the registrant for the Fund, certain of the Fund's executive officers and/or trustees, the investment advisor to the Fund, and the underwriter for the ongoing offering of Fund shares to the public. The Fund is an open-end mutual fund that invests in cash, and cash equivalents, such as high-quality short-term fixed income securities, and long and short call and put options on Standard & Poor's 500 Index futures contracts. The Plaintiffs allege that the Defendants sold shares of the Fund pursuant to misrepresentations in publicly filed registration statements and prospectuses that the Fund was a low-risk investment suitable for capital preservation in all market conditions. Contrary to these representations, the Fund purportedly made numerous highly speculative investments that exposed the Fund to potentially unlimited losses of capital in rising markets. Giving rise to the action, the Fund had a "melt down" when the S&P 500 experienced a steady and rapid increase in value during the first two weeks of February 2017. The Plaitiffs assert violations of: (1) Section 11 of the Securities Act by the Trust, the Distributor, and the Trustee Defendants; (2) Section 12(a)(2) of the Securities Act by the Defendants; and (3) Section 15 of the 1933 Act by Catalyst Advisors and the Individual Defendants. On Jan. 8, 2018, the Court appointed the Folk Group and Jeffrey Berkowitz Co-Lead Plaintiffs to represent the putative class. On March 30, 2018, the Co-Lead Plaintiffs filed an amended complaint asserting the same causes of actions but adding additional factual allegations. On June 5, 2018, the Defendants filed a joint motion, pursuant to Rule 12(b)(6), to dismiss the Amended Complaint in its entirety with prejudice. The Defendants argue that, in light of the relevant disclosures in the Offering Documents, the Plaintiffs fail to allege any material misstatements or omissions as a matter of law. The representations at issue fall into four categories, namely, statements regarding the Fund's: (1) stated objective of capital preservation and portrayal as a low-risk, low-volatility investment with low correlation to equity markets; (2) options strategies and risks; (3) purportedly robust risk management procedures; and (4) past performance. Judge Spatt concurs with the Defendants that no actionable misstatements or omissions occurred. He finds that (i) the Amended Complaint fails to allege an actionable misrepresentation or omission based on the Funds statements regarding investment objectives and market correlation; (ii) the Amended Complaint fails to allege an actionable misrepresentation or omission based on the Fund's statements regarding options strategy and risks; (iii) the Amended Complaint fails to allege an actionable misrepresentation or omission based on the Fund's statements regarding risk management; (iv) the Amended Complaint fails to allege an actionable misrepresentation or omission based on the Fund's statements regarding past performance; and (v) the Plaintiffs base their allegations on unreasonable assumptions regarding the meaning of the statements at issue. The Defendants argue that the Plaintiffs' claims also fail because they cannot show that their losses were "caused" by the purported misrepresentations. Assuming the Plaintiffs retained a viable misrepresentation claim, the Judge cannot conclude that negative loss causation serves as an independent basis for dismissing the Plaintiffs' claims. He finds that the Defendants failed to establish negative loss causation based solely on the allegations in the Amended Complaint. He cannot say that the revelation of the Fund's overinvestment in naked call options had no causal connection to decline in the Fund's NAV. While it may not have resulted in the market "reacting" with a lower evaluation of the Fund's shares, the fund's over-exposure to upward movements in the S&P 500 was certainly intertwined with the diminution of the Fund's assets. Parsing out the extent to which the Fund's assets deteriorated because of the concealed risk -- i.e., its writing of uncovered options -- or something else seems better suited for a motion for summary judgment. The Judge finds that the Amended Complaint lacks facts sufficient to confer standing upon the Plaintiffs to bring claims against the Individual Defendants and Catalyst Advisors under Section 12. To the extent the Plaintiffs argue that additional facts show solicitation by Catalyst Advisors due to its role as manager of the fund, they are irrelevant because the Plaintiffs drew these facts from exhibits to the Defendants' brief rather than allegations in the Amended Complaint. Finally, the Judge finds that the Amended Complaint lacks facts sufficient to plead control under Section 15. The Plaintiffs cannot recover under Section 15 due to their failure to allege a primary violation. In addition, the Amended Complaint's allegations regarding Catalyst Advisors are insufficient. The fact that Catalyst Advisors managed the Fund's strategy, without more, fails to allege actual control and merely constitutes a boilerplate statement of control status. For the foregoing reasons, Judge Spatt granted the Defendants' motion to dismiss the Amended Complaint in its entirety, and dismissed the Plaintiffs' claims with prejudice pursuant to Rule 12(b)(6). The Clerk of the Court is respectfully directed to close the case. A full-text copy of the Court's June 25, 2019 Memorandum Decision and Order is available at https://is.gd/1sSyay from Leagle.com. Catalyst Futures Fund Investor Group, Movant, represented by Shannon Lee Hopkins -- shopkins@zlk.com -- Levi & Korsinsky, LLP. Richard Kingston, Margaret Pak, Ken Hopkins, The Weinstein Family Trust & Kelly Farmer, Movants, represented by Phillip Kim -- pkim@rosenlegal.com -- Rosen Law Firm, P.A. P.C. Eugene Almendinger, William H. Tod, Earle Folk, Debra Folk, Tom Lovelidge & Maryann Lovelidge, Movants, represented by David Avi Rosenfeld , Robbins Geller Rudman & Dowd, LLP, Samuel H. Rudman , Robbins Geller Rudman & Dowd, LLP, William John Geddish , Robbins Geller Rudman & Dowd LLP & Evan Jay Kaufman , Robbins Geller Rudman & Dowd LLP. Roger Emerson, Mary Emerson, Robert Caplin & Martha J. Goodlett, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, represented by Samuel H. Rudman, Robbins Geller Rudman & Dowd, LLP. Jeffrey Berkowitz, Plaintiff, represented by Christopher Joseph Keller, Labaton Sucharow & Rudoff LLP, Evan Jay Kaufman, Robbins Geller Rudman & Dowd LLP, James W. Johnson, Labaton Sucharow & Rudoff LLP, Michael H. Rogers, Labaton Sucharow LLP, Samuel H. Rudman, Robbins Geller Rudman & Dowd, LLP, Francis P. McConville, Labaton Sucharow LLP, John Julian Esmay, Labaton Sucharow & William John Geddish, Robbins Geller Rudman & Dowd LLP. Mutual Fund Series Trust, Catalyst Capital Advisors LLC, Jerry Szilagyi & Erik Naviloff, Defendants, represented by James F. Moyle -- jmoyle@lpgmlaw.com -- Lazare Potter Giacovas & Moyle LLP & Jacob Ari Englander -- jenglander@lpgmlaw.com -- Lazare Potter Giacovas & Moyle LLP. Northern Lights Distributors LLC, Defendant, represented by Elizabeth S. David, Goodwin Procter LLP & Mark Holland, Goodwin Procter LLP. Tobias Caldwell, Tiberiu Weisz & Bert Pariser, Defendants, represented by Michelle Gitlitz Courtney, Blank Rome LLP. NATIONAL RURAL: Sued over Mismanagement of 401(k) Pension Plan -------------------------------------------------------------- THADDIUS INTRAVAIA; and STEVEN MARVIK, individually and on behalf of all others similarly situated, Plaintiffs v. NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION (NRECA); and INSURANCE AND FINANCIAL SERVICES COMMITTEE, Defendants, Case No. 1:19-cv-00973 (E.D. Va., July 25, 2019) alleges that the Defendants: -- failed to prudently monitor and control the Plaintiffs' 401(k) Pension Plan administrative costs in the interests of Plan participants, -- appropriated the extra fees from the Plan for their own benefit, and -- diverted monies from the Plan to subsidize other expenses of NRECA and its member. The Plan's administrative costs are grossly excessive. The Plan is one of the 75 largest defined contribution plans in the United States (out of more than 650,000). As a result, the Defendants have access to the most competitive pricing and services in the marketplace. While fiduciaries of similarly-sized plans typically incur administrative expenses well under $100 per participant, the Plan's administrative costs are wildly out of scale at more than $400 per participant. The problem is also getting worse with time. The Plan's administrative costs have increased each year since 2013, and the 2017 rate of $404 per participant is a 50% surge from the 2013 rate. Based on trends in the overall marketplace, the Plan's administrative costs should have decreased on a per-participant basis during this time. Further, the growth within the Plan provided significant opportunities for Defendants to reduce the Plan's administrative expenses. Yet, the Defendants failed to take measures to reduce the Plan's expenses consistent with other retirement plan fiduciaries and marketplace trends, failed to leverage the Plan's size, and failed to advance the interest of participants, causing the Plan to pay unreasonable administrative fees. The Defendants also improperly used the Plan to subsidize costs of NRECA's overall benefits program. As a defined contribution plan, the Plan is distinct from NRECA's traditional pension and health and welfare plans, in which participants are promised certain benefits, and NRECA's member employers are financially obliged to underwrite those benefits. This funding distinction incentivizes Defendants to shift more shared costs to the Plan, thereby minimizing the financial liabilities incurred by NRECA's member employers related to the administration of the traditional pension and health and welfare plans. The National Rural Electric Cooperative Association (NRECA) is the organization that represents the interests of over 900 electric cooperatives in the U.S., to various legislatures. Independent electric utilities are not-for-profit and are owned by their members. The Association, which was founded in 1942, unites the country's generation, transmission and distribution cooperatives which are found in 47 states and serve over 40 million people. It is headquartered in Arlington, Virginia. [BN] The Plaintiff is represented by: Gregg C. Greenberg, Esq. ZIPIN, AMSTER, & GREENBERG. 8757 Georgia Ave., Ste. 400 Silver Spring, MD 20910 Telephone: (301) 587-9373 Facsimile: (240) 839-9142 E-mail: ggreenberg@zagfirm.com - and - Kai H. Richter, Esq. Paul J. Lukas, Esq. Carl F. Engstrom, Esq. Brandon T. McConough, Esq. Chloe A. O'Neill, Esq. NICHOLS KASTER, PLLP 4600 IDS Center 80 S 8th Street Minneapolis, MN 55402 Telephone: (612) 256-3200 Facsimile: (612) 338-4878 E-mail: krichter@nka.com lukas@nka.com bmcdonough@nka.com cengstrom@nka.com coneill@nka.com NAVY FEDERAL: Bid to Reconsider Expert Fees in Plemons Suit Denied ------------------------------------------------------------------ In the case, JENNA LLOYD, JAMIE PLEMONS, on behalf of themselves and all others similarly situated, Plaintiffs, v. NAVY FEDERAL CREDIT UNION, Defendant, Case No. 17-cv-1280-BAS-RBB (S.D. Cal.), Judge Cynthia Bashant of the U.S. District Court for the Southern District of California denied the Plaintiffs' motion for partial reconsideration and request approval of the remaining $109,100 in Arthur Olsen's charged fees. Plaintiffs Lloyd and Plemons move for partial reconsideration of the Court's order granting in part and denying in part their consolidated motion for attorneys' fees in the amount of $6.125 million, reimbursement of costs and expenses in the amount of $143,038.82, and $5,000 service awards for each named Plaintiff, a motion that they filed in connection with the motion for final approval of the class action settlement in the case. In its preliminary approval order, the Court ordered the Plaintiffs to thoroughly support all requests for attorneys' fees and costs and expenses sought in connection with final approval. And, more specifically, during the Final Approval Hearing, the Court requested additional information regarding fees for the Plaintiffs' expert, Olsen, for whom they requested approval of $132,500 in fees charged. After consideration of the Plaintiffs' submissions, the Court granted in full the Plaintiffs' request for an award of $6.125 million in attorneys' fees and granted their request for service award. The Court, however, did not approve in full the Plaintiffs' request for reimbursement of $132,500 in fees for Olsen. The Court approved $23,400 in fees for Olsen's work performed prior to the Court's preliminary approval order as reflected in his invoices and denied reimbursement of $109,100 on the ground that the amount was unreasonable based on the information provided to the Court. Seeking now to present the Court with supplemental information regarding the work Olsen performed, the Plaintiffs move for partial reconsideration and request approval of the remaining $109,100 in Olsen's charged fees. They contend that denial of this additional amount would be "manifestly unjust." Judge Bashant finds that the Plaintiffs' motion mistakes the asserted importance of Olsen's work as the relevant issue on reconsideration. However, it is not the importance of Olsen's work, but rather the Plaintiffs' failure to comply with two court orders directing them to thoroughly support their requests and, more specifically, their request for reimbursement of Olsen's fees. It is not manifestly unjust to require a party to abide by the Court's orders. Under these circumstances, denial of reconsideration of the Plaintiffs' request for an additional $109,100 in fees for Olsen is not manifestly unjust. For the foregoing reasons, Judge Bashant denied the Plaintiffs' motion for partial reconsideration. A full-text copy of the Court's June 25, 2019 Order is available at https://is.gd/xMaE8L from Leagle.com. Jenna Lloyd, on behalf of herself and all others similarly situated, Plaintiff, represented by Andrea Gold -- agold@tzlegal.com -- Tycko & Zavareei LLP, pro hac vice, Andrew Silver -- asilver@tzlegal.com -- Tycko and Zavareei LLP, pro hac vice, Hassan Ali Zavareei -- hzavareei@tzlegal.com -- Tycko & Zavareei LLP, Jeffrey Douglas Kaliel -- jdkaliel@gmail.com -- Kaliel PLLC, Jeffrey M. Ostrow -- ostrow@kolawyers.com -- Kopelowitz Ostrow Ferguson Weiselberg Gilbert, pro hac vice, Jonathan M. Streisfeld -- streisfeld@kolawyers.com -- Kopeloiwtz Ostrow Ferguson Weiselberg Gilbert, pro hac vice, Chiharu Sekino -- csekino@sfmslaw.com -- Shepherd, Finkelman, Miller & Shah, LLP, James C. Shah -- jshah@sfmslaw.com -- Shepherd, Finkelman, Miller & Shah, LLP & Taras Kick. Jamie Plemons, on behalf of herself and all others similarly situated, Plaintiff, represented byAndrea Gold, Tycko & Zavareei LLP, pro hac vice, Andrew Silver, Tycko and Zavareei LLP, pro hac vice, Hassan Ali Zavareei, Tycko & Zavareei LLP, Jeffrey Douglas Kaliel, Kaliel PLLC, Jeffrey M. Ostrow, Kopelowitz Ostrow Ferguson Weiselberg Gilbert, pro hac vice, Jonathan M. Streisfeld, Kopeloiwtz Ostrow Ferguson Weiselberg Gilbert, pro hac vice, Chiharu Sekino, Shepherd, Finkelman, Miller & Shah, LLP & James C. Shah, Shepherd, Finkelman, Miller & Shah, LLP. Navy Federal Credit Union, Defendant, represented by Jason J. Kim -- kimj@HuntonAK.com -- Hunton Andrews Kurth LLP & Neil K. Gilman -- ngilman@HuntonAK.com -- Hunton & Williams, pro hac vice. NETSHOES (CAYMAN): Securities Class Action Claim Dismissed ---------------------------------------------------------- Tom McParland, writing for New York Law Journal, reports that a Manhattan Supreme Court judge has dismissed a securities class action claim against Brazilian online retailer Netshoes (Cayman) Limited, finding the suit failed to support allegations that the company had purposely misrepresented key aspects of its business to would-be investors. The cause of action, brought under federal securities law, claimed that the Brazilian online sporting goods retailer "painted a materially false and misleading picture of Netshoes' business" in the face of increasing competition, which improperly lifted its IPO offering price in 2017. Investors said the alleged missteps ultimately caused Netshoes' stock price to collapse from its $18 per-share IPO price to a low of $2.87 per share 13 months later. However, New York County Supreme Court Justice Andrew S. Borrok, in a revised opinion released Wednesday, ruled that statements cited from Netshoes' IPO materials were either opinion, accurate assessments of past performance or expressions of "puffery or corporate optimism" that are not actionable under the statute. "Absent factual allegations demonstrating that these statements were false or misleading when made (and there are none in the complaint), statements concerning Netshoe's customer loyalty and past performance do not give rise to a securities claim," Borrok wrote last week in an 18-page revised opinion, published July 17. Skadden, Arps, Slate, Meagher & Flom, which represented Netshoes, said the decision was one the first to dismiss a securities class action for allegedly false or misleading disclosures since the U.S. Supreme Court unanimously affirmed in 2017 that state courts have jurisdiction to hear such cases. According to Borrok's ruling, plaintiffs had targeted Netshoes' pre-IPO statements touting its competitive position, "high margin" strategy and new supplements and vitamins business. The complaint, however, alleged that, in fact, Netshoes' core sports and lifestyle e-commerce business was under pressure to significantly ramp up marketing and provide deeper discounts to preserve its business model in light of increased competition from Mercado Libre, its rival in Latin America, as well as from Amazon, which was active in Mexico at the time. Netshoes, the plaintiffs alleged, knew or should have known that the net income the net income it posted in 2016 was overstated and in line with the international reporting standards it cited in its offering documents. Reviewing the case under the Omnicare standard, Borrok said there was no evidence in the complaint to support allegations that Netshoes knew its statements concerning competition were false when they were made. On other points regarding the company's future growth, he said, Netshoes shared relevant risk factors with investors, and its forward-looking statements were protected by "ample cautionary language" in the prospectus, which isolated the company from legal challenges. "Netshoes disclosed the information that the plaintiffs claim was omitted," he said. "To the extent that it did not disclose certain information, it had no duty to do so." Skadden attorneys were not available July 19 afternoon to comment on the decision. Thomas Laughlin, Esq. -- TLAUGHLIN@SCOTT-SCOTT.COM -- a Scott+Scott attorney who represented the proposed class did not immediately return a call seeking comment. [GN] NEW YORK: $2.9MM Attorney's Fees OK'd Willowbrook Litigation ------------------------------------------------------------ The United States District Court for the Eastern District of New York issued a Memorandum and Order granting Plaintiffs' Motion for Attorney's Fees and Costs in the case captioned NEW YORK ASSOCIATION FOR RETARDED CHILDREN et al., Plaintiffs, v. ANDREW M. CUOMO, et al., Defendants. Nos. 72 CV 356 (RJD), 72 CV 357 (RJD) (E.D.N.Y). This motion for attorneys' fees and costs arises out of a 1972 class action (Willowbrook Litigation) related to the deprivation of basic rights, including unclean and unsafe living conditions, of individuals with intellectual and developmental disabilities housed at the Willowbrook State Developmental Center in Staten Island, New York. The litigation resulted in a 1975 Consent Judgment, which was replaced in 1993 by a Permanent Injunction (Injunction). Attorneys' Fee Disputes The Plaintiffs request attorneys' fees and costs in the amounts of $3,789,386.39 for NYCLU, $124,140 for NYLPI and $88,137.50 for the law firm of Kasowitz, Benson and Torres LLP (Kasowitz firm), retained specifically to prepare the Plaintiffs' fee application. The requested fee award is based on Southern District of New York (SDNY) hourly billing rates between $525 and $600 for attorneys from NYCLU and NYLPI and between $300 and $925 for attorneys from the Kasowitz firm, and accounts for almost 7,000 hours of time over seven years, including over 200 hours spent preparing this fee application. Billing Rates Legal Standard The Plaintiffs' counsel argues the Court should apply prevailing market rates from the Southern District of New York (SDNY) because it would be difficult, if not impossible, to find a law firm or group of lawyers practicing solely within the Eastern District with the combination of constitutional expertise, monitoring experience, and resources to have prosecuted a disability law case as complex and demanding as this action, and to have continued to monitor the Permanent Injunction for so long with such skill and expertise. The Defendants, however, contend that the forum rule must be applied because the Plaintiffs' counsel has not overcome the strong forum rule presumption by persuasively establishing out-of-district counsel was likely to produce a substantially better net result. The Court agrees the Plaintiffs have not overcome the strong presumption in favor of the forum rule and thus Eastern District rates provide the appropriate benchmark for calculating the Plaintiffs' attorneys' fees and costs; however, the Court finds that counsel is nevertheless entitled to in-district rates at the higher end of the spectrum and sufficient to reflect counsels' significant experience and institutional knowledge. The Forum Rule The Plaintiffs' counsel, indisputably, has significant skill and expertise with respect to the subject matter of this litigation and is uniquely positioned to effectively and efficiently enforce the Injunction and monitor the OPWDD's own enforcement efforts. However, the Court must also account for the nature of the work counsel has performed during the period covered by the fee application, not the considerably more extensive work counsel performed decades ago, including overseeing the development of the OPWDD infrastructure that exists today. In Restivo v. Nassau County, 2015 WL 7734100 (E.D.N.Y. Nov. 30, 2015), a section 1983 suit arising out of a wrongful murder conviction, the Court permitted a fee award applying SDNY billing rates because the case was exceedingly arduous and complex, involving extensive expert analysis and presentation of DNA evidence spanning eight years and two trials and even defense counsel acknowledged that the Plaintiff's firm might have held a monopoly on DNA law and that no lawyers with primary offices in the Eastern District of New York have obtained a successful jury verdict in a section 1983 wrongful conviction suit as Plaintiff's counsel did here. Despite their expertise and institutional knowledge, Plaintiffs' counsel in this case has not made the requisite showing to rebut the forum rule presumption. Instead, Plaintiffs do not provide sufficient evidence that no attorneys in this district possess such skill. Like United States v. City of New York, Plaintiffs' application at most shows that in-district counsel might be harder to find, but that is not enough to show that there is a complete dearth of such counsel. Moreover, Plaintiffs' counsel does not have a monopoly on disability-rights law like counsel in Restivo, nor has counsel shown that no Eastern District lawyer has secured a successful Permanent Injunction in an important civil rights case requiring prospective monitoring. Billing Rates The Plaintiffs argue that even if the Court declines to award out-of-district rates, their requested hourly rates nevertheless fall within the accepted range of rates for the Eastern District, particularly in light of counsels' extensive experience and the complexity of this case. Defendants disagree, and argue for a substantial reduction in billing rates. Of course, both sides cherry pick case citations depending upon their magic number. The Plaintiffs request an hourly rate of $600 for Beth Haroules, an NYCLU attorney with over 30 years of experience who has worked on the Willowbrook Litigation since 1994, $525 for Lisa Laplace, an NYCLU attorney with close to 30 years of experience who has worked on the Willowbrook Litigation since 2005, $550 for Roberta Mueller, an NYLPI attorney with over 30 years of experience who has worked on the Willowbrook Litigation since 2001 and $150 for Suhali Mendez, an NYLPI paralegal with over 10 years of experience. Defendants counter with hourly rates of $375, $275, $325 and $0, respectively. Viewed in light of prevailing market rates in this district for cases requiring comparable levels of experience and expertise, Plaintiffs' proposed rates are too high, and Defendants' counter is too low; however, the Court concludes that rates approaching Plaintiffs' proposal are more appropriate in this case. Ultimately, counsels' subject-matter expertise and vast institutional knowledge persuade the Court that a billing rate on the higher end of the spectrum in this District is warranted, and counsels' independent interest in the litigation and delay in submitting a fee application only sway the pendulum marginally in Defendants' favor. Ms. Haroules is entitled to a $500 rate, Ms. Laplace is entitled to a $425 rate, Ms. Mueller is entitled to a $450 and Ms. Mendez is entitled to a $100 rate. These rates are consistent with those prevailing in this district for attorneys with similar experience, and reduced slightly to account for the delay, of Plaintiff's own creation, in requesting fees. Number of Hours Billed The Plaintiffs seek compensation for approximately 6,700 hours of work between 2012 and 2019 performing monitoring and enforcement tasks on behalf of the Willowbrook class pursuant to the terms of the Injunction, 6,400 hours of work performed by NYCLU and just under 300 hours of work performed by NYLPI. Plaintiffs contend these hours are reasonable in light of the directives set out by the Injunction, and that their supporting documentation is contemporaneous and of sufficient detail. Specifically, Plaintiffs note that in recent years, OPWDD, the state agency counsel are charged with monitoring, has seen a number of highly experienced and knowledgeable staff' retire and experienced significant turnover. Accordingly, Plaintiffs explain counsel are repeatedly called upon by Defendants to educate new state employees and provider agencies on issues relating to Willowbrook entitlements and Plaintiffs' compliance rights and counsel have also been invited to comment on and/or craft regulatory and programmatic initiatives that are vital to OPWDD. The Defendants, on the other hand, claim counsels' billing entries (i) reflect work outside the scope of that contemplated by the Injunction, (ii) contain numerous duplicative time entries, (iii) are vague, and (iv) reflect inappropriate block billing practices. Defendants contend that these billing record deficiencies warrant a 40% across-the-board reduction in counsels' total billable hours. Though the Court finds some deduction in billable hours is appropriate, a 40% deduction is not necessary. Nature of Work Performed by Counsel The Defendants claim Plaintiffs' counsel attempts to bill the state for any work even tangentially related to their representations of the Willowbrook class, as well as activities and tasks that are simply not contemplated or required by the Permanent Injunction, including attendance or participation in public conferences, webinars, and forums," providing testimony and public comments on OPWDD initiatives and programs and tasks independently undertaken in an unsolicited effort to policy agency operations. Though Defendants include ample citations to counsels' billing records which it claims reference work falling outside the scope of the Injunction, Defendants do not explain why such work is inconsistent with the role of counsel envisioned by the Injunction. Plaintiffs claim counsels' billing records reflect work done together with, or at the behest of, OPWDD. To this end, Ms. Haroules submitted two detailed declarations describing recent changes to the OWPDD services delivery system and counsels' need to participate in briefings and submit comments related to those changes in order to ensure that the entitlements of the Willowbrook class members are protected in whatever new system is developed. Moreover, Ms. Haroules explains that Defendants' attempt to take issue with Plaintiffs' efforts to police agency operations is improper because the entire structure of the Injunction vests Plaintiffs' Counsel with that obligation insofar as the policing related to the rights and entitlements of the Willowbrook class under the Injunction. Indeed, Ms. Haroules notes the Injunction obligates Defendants to provide ongoing information sessions to counsel to monitor the development and implementation of the plans to address systemic issues and give counsel an opportunity to make suggestions. Duplicative Billing Entries The Defendants also complain that Plaintiffs' counsel billed an excessive amount of time for conferring with each other without any particularized explanation as to why these duplicative efforts were necessary or otherwise justify billing by multiple lawyers. However, Plaintiffs contend, and the Court agrees, that this matter has been staffed leanly, with only two attorneys from NYCLU and one attorney for NYLPI, reducing the incidence of duplicative billing. Indeed, Courts often make fee reductions to reflect what billable hours would have been had the case been leanly staffed. The fact that counsel communicated with each other regarding monitoring and enforcement work is not enough to warrant a deduction in hours for duplicative billing. Vague Billing Entries The Defendants next argue that the proliferation of vague billing entries warrants a fee reduction and point to a number of entries referencing indecipherable abbreviations and acronyms and sparsely described activities and tasks. Plaintiffs counter with an 11-page abbreviation and acronym key designed to translate the allegedly vague billing entries and insist that counsel does not bill for every email we review or write, every phone call we take, or every time we speak with co-counsel, the Consumer Advisory Board going on to list a number of other stakeholders. The Plaintiffs' key only goes so far. The Court agrees that even with the key, a number of billing entries are too vague for the Court to ascertain whether counsels' time was reasonably spent. A modest deduction is warranted to account for counsels' vague billing entries. Block Billing Finally, Defendants ask the Court to reduce fees based on NYCLU's rampant use of block billing which render it impossible to determine the reasonableness of the time expended on any individual task. Plaintiffs respond that their block-billed entries amply satisfy standards established in the Second Circuit" and note that in the majority of instances where counsel submitted a single entry for more than five hours on a particular day, OPWDD should be able to understand how those hours were spent because counsel was either (i) engaged in meetings or court proceedings with Defendants (ii) covering court proceedings where OPWDD declined to participate to ensure Willowbrook class members' rights and entitlements were protected, or (iii) engaged in drafting court pleadings, regulatory comments and demand letters, all of which were shared with or directed at OPWDD. Block billing is disfavored because it can cloud the court's ability to assess whether counsels' time expenditures were reasonable. However, in this case, counsels' entries often list out discrete tasks, even if those individual tasks might, at times, be vaguely described. Though all of counsels' tasks for a particular day are contained within a single billing entry, the Court concludes that the tasks are broken out within that entry to a sufficient degree, and thus counsels' block billing practices do not warrant a fee reduction. Overall, a 10% deduction of Plaintiffs' requested fees for monitoring and enforcement work is appropriate in light of the incidence of vague billing entries and, relatedly, billing for activities that are not clearly germane to the enforcement and monitoring activities contemplated by the Injunction. This results in a fee award of $2,773,152.90 to NYCLU and $104,283 to NYLPI. Costs NYCLU requests costs in the amount of $3,985.70 for some, but not all, of the costs incurred over the last seven years, including conference calls, shipping, PACER and other court fees, as well as certain travel expenses. However, Defendants argue that because Plaintiffs merely provide general ledger reports of expenses allegedly incurred, such reports do not constitute adequate documentation to establish whether a charge is reasonable. Defendants would prefer Plaintiffs submit the underlying invoices. Notwithstanding the fact that Defendants may have accepted general ledger reports as acceptable documentation of costs in the past, this Circuit requires the party seeking costs provide "adequate documentation of costs incurred. Here, Plaintiffs have at least provided the dates on which expenses were incurred rather than the lump sum format submitted in Rotella. Theoretically, one could cross-verify these costs with Plaintiffs' billing records to confirm their legitimacy. The Court finds that a 10% deduction in costs is warranted: though these costs are not impossible to verify, in light of the minimal supporting documentation and the difficulty associated with verifying the requested costs, some deduction is appropriate. NYCLU may thus recover costs totaling $3,587.13. Fees on Fee The Plaintiffs also request fees on fees, fees for the time spent preparing and litigating this fee application -- to the tune of $120,680. Specifically, Plaintiffs request $88,137.50 for the Kasowitz firm, retained, on a pro bono basis, for the sole purpose of preparing this application, and $32,542.50 for attorneys from NYCLU and NYLPI for a total of 227 attorney hours. Defendants contend that the requested fees must be dramatically reduced to no more than 30 hours, which is the maximum number generally approved for preparing fee applications. The hourly rates requested by counsel in this case and number of hours spent preparing the fee application far surpass the realm the of reasonableness. First, the hourly rates must be reduced to match the rates that apply in the underlying action and second, the number of hours billed reveals innumerable redundancies and excessive billing practices, particularly by the Kasowitz firm. Guida, However, even though the rates and hours must be substantially reduced, a reduction to no more than 30 hours the billable time Defendants contend is reasonable is not necessary. Hourly Rates Plaintiffs' fees on fees application seeks payment for hours billed by one partner, Mr. Abrams, with just under thirty years of experience (28.3 hours at $925 per hour), one senior-level associate, Ms. Roberts, (48.7 hours at $500 per hour), one mid-level associate, Ms. Cusick, (92.6 hours at $400 per hour), and one junior-level associate, Mr. Intravatola, (1.9 hours at $300 per hour). In order to match the rates the Court has calculated for the underlying action, Mr. Abrams is entitled to a $500 hourly rate, Ms. Roberts is entitled to a $325 rate, Ms. Cusick is entitled to a $300 rate, and Mr. Intravalota is entitled to a $250 rate. The hourly rates for Ms. Haroules and Ms. Mueller will be the same as they are in the underlying action $500 and $450, respectively. These fees are similar to those recently awarded in a variety of cases litigated in this district and appropriately reflect the experience of counsel as well as the relatively straightforward, albeit tedious, work involved in preparing a fee application. Hours Billed by the Kasowitz Firm in Preparing the Fee Application With respect to the number of hours billed in preparing the fee application, the amount reported by the Kasowitz firm is well above the norm and replete with examples of redundant billing, inefficiencies and overstaffing. Most notably, the billing records for Ms. Roberts and Ms. Cusick reveal a number of overlapping and vague time entries and reflect duplicative work. To the extent Ms. Roberts and Ms. Cusick performed different work or focused on different sections of the fee petition, it would be impossible to discern from the vague time entries submitted. For example, on February 5, 2019 Ms. Roberts billed 5.4 hours to review and revise draft fee petition and the very same day Ms. Cusick billed 7.5 hours to draft and revise fee petition. Again, on February 7, 2019, Ms. Roberts billed 4.2 hours to revise fee petition and Ms. Cusick billed 5.1 hours to revise sections of fee petition. And, on February 11, 2019, Ms. Roberts billed 1.2 hours to review comments and edits made by co-counsel while Ms. Cusick also billed 1.2 hours to review co-counsel's edits. Though Ms. Roberts, who is several years Ms. Cusick's senior, billed relatively fewer hours, there are nevertheless too many instances of duplicative work in the billing records. The Court thus finds that a 50% hours reduction across Ms. Roberts and Ms. Cusick's total hours is appropriate. Reducing Ms. Roberts's 48.70 hours by 50% results in 24.35 hours at $325 per hour and totaling $7,913.75. Reducing Ms. Cusick's 92.60 hours billed by 50% results in 46.3 hours at $300 per hour and totaling $13,890. Hours Billed by NYCLU and NYLPI in Preparing the Fee Application Ms. Haroules spent 53.1 hours and Ms. Mueller spent 14.4 hours on this fee application. Overall, Ms. Mueller's time entries relating to the fee application reflect sound billing judgment, specifically tailored to reviewing her own declaration and some additional, limited time reviewing the brief as a whole. No deduction in hours is warranted for Ms. Mueller and she is thus entitled to her requested 14.4 hours at $450 per hour, totaling $6,480. Ms. Haroules submitted several lengthy declarations in support of this fee application which surely required substantial work and review, capitalizing on her significant institutional knowledge as reflected by her billing records. However, Ms. Haroules's records also reflect a number of vague, block-billed entries for "attention to fee app, making it difficult for the Court to determine how Ms. Haroules's review differed from that of her NYLPI colleague Ms. Mueller or Mr. Abrams of the Kasowitz firm. Accordingly, the Court finds that a 30% deduction in Ms. Haroules's hours is warranted to account for large number of vague entries and entries overlapping with work performed by the Kasowitz senior attorneys on the fee application. Reducing Ms. Haroules's hours by 30% yields 37.17 hours at $500 per hour, totaling $18,585. The Kasowitz firm is therefore awarded $30,293.75 in fees for preparing the fee application, NYLPI is awarded $6,480 and NYCLU is awarded $18,585 for their work in preparing the fee application. Accordingly, the Plaintiffs' motion for attorneys' fees is granted, subject to the modifications. NYCLU counsel is awarded $2,791,737.90 and NYLPI counsel is awarded $110,763 for monitoring and enforcement work as well as the time spent preparing this fee application. NYCLU may recover $3,587.13 in costs. The Kasowitz firm is awarded $30,293.75 for its work preparing the fee application. Moving forward, with the assistance of OPWDD, class members must be provided notice of any fee application pursuant to Fed. R. Civ. P. 23(h), and Plaintiffs' counsel is required to submit fee requests on an annual basis. A full-text copy of the District Court's July 22, 2019 Memorandum and Order is available at https://tinyurl.com/y62nth93 from Leagle.com. In re National Archives and Records Administration, Plaintiff, represented by Margaret M. Kolbe, United States Attorneys Office. New York State Association for Retarded Children, Plaintiff, represented by Beth Haroules, New York Civil Liberties Union Foundation, Marianne L. Engelman Lado, New York Lawyers for the Public Interest, Roberta L. Mueller, New York Lawyers for the Public Interest, Inc., Christopher T. Dunn, NY Civil Liberties Union, 125 Broad Street, 19th Floor, New York, NY 10004, David J. Abrams -- dabrams@kasowitz.com -- Kasowitz Benson Torres LLP, Deva Roberts -- droberts@kasowitz.com -- Kasowitz Benson Torres LLP & Lisa J. Laplace, New York Civil Liberties Union. George Pataki, Defendant, represented by Jane R. Goldberg, State of New York, Office of Attorney General, Richard Paul Wolfe, NYS Office of Mental Retardation & Erin P. Kandel, Office of the New York State Attorney General. NINTENDO CO: Class Action Over Drifting Joy-Con Controllers ----------------------------------------------------------- James Brightman, writing for Yahoo! Finance News, reports that Nintendo, after sleepwalking through a generation with the Wii U, is once again at the top of its game. The Switch has sold around 35 million units worldwide and continues to lead hardware sales each month, according to NPD. Some frustrated gamers, however, may have found Nintendo's Achilles heel. If a newly-filed class action lawsuit has any weight to it, the House of Mario may have a serious defect in its Switch Joy-Con controllers. Filed by plaintiff Ryan Diaz on July 19, 2019 in the US District Court for the Western District of Washington at Seattle, the suit alleges that a number of Nintendo Switch owners are experiencing drifting with the Joy-Con controllers; this means movements are being registered in games when the analog sticks are left untouched. If the drifting gets bad enough, it can render a Joy-Con practically useless. Diaz sent a faulty Joy-Con to Nintendo for repair under the one-year warranty, only to experience drifting again a few months later. At that point, he said he would have had to pay for an out-of-pocket repair and decided to purchase two additional left and right Joy-Con controllers for $90. Diaz and the class represented in the suit allege that Nintendo is fully aware of the drifting defect from its own pre-release testing and numerous online complaints received from its customers and yet the company continues to fail to "disclose the defect and routinely refuses to repair the joysticks without charge when the defect manifests and never disclosed this material defect to consumers." The suit claims that Diaz's "experiences are by no means isolated or outlying occurrences. Indeed, the internet is replete with examples of message boards and other websites where consumers have complained of the exact same Joy-Con defect." Switch owners, the suit says, have "suffered an ascertainable loss of money and/or property and/or value." Nintendo is specifically being accused of "violations of California consumer fraud statutes, negligent misrepresentation, breach of implied warranty, unjust enrichment, and...violations of the federal Magnuson-Moss Warranty Act and California's Song-Beverly Consumer Warranty Act." The class is seeking "monetary relief for damages suffered, declaratory relief as to the parties' rights under Defendant's warranty, and public injunctive relief." Nintendo is no stranger to lawsuits, and the company in fact actually has a pretty long history of winning patent cases in particular. Warranty-related cases are a bit different; just ask Microsoft, which ultimately lost $1 billion due to its "Red Ring of Death" problem for the Xbox 360. Microsoft wound up extending its warranty from one year to three for the console, but it's not clear at all if Nintendo's situation is even comparable. "I think social media has amplified this to be larger than it actually is," Brandon J Huffman, Esq. attorney with Odin Law and Media told GameDaily. "If 100 people total had this problem, and all posted about it and posted video, it does not mean, necessarily, that they are representative of millions more with the same issue. Time will tell if that hypothesis is correct. "Whether this lawsuit will succeed is a crapshoot at this point… For Nintendo, the best case is it gets dismissed or the class does not get certified for some reason. Worst case is that Nintendo faces millions in damages and millions more in attorneys fees, but I think that is pretty unlikely." One key issue in the suit that may be hard to prove is whether there is actually a problem with the Joy-Con design. "The fact that this issue is happening does not prove why it is happening," Huffman continued. "Is there a design defect, or did these people just not take great care of a sophisticated piece of electronic equipment? I have had the drifting issue personally, on the left Joy-Con. But, I have always just assumed it is because I sometimes toss my Switch in my bag without much regard for what is putting pressure [on] it, etc. "Even if it is a defect, and they knew, and they do nothing about it, what are the damages? In my personal experience, the device still works so long as I am actively using the controller. It has a minimal impact. What is a minor inconvenience in gameplay worth?" Richard Hoeg, Esq. -- rhoeg@hoeglaw.com -- attorney at Hoeg Law, is largely in agreement with Huffman. He told us, "As both a consumer of their products and a corporate attorney, I find some significant flaws with the reasoning set forth in the claim. (1) Everything before Page 14 is establishing the reasoning behind why the court should certify the class (i.e., that the people described should all be afforded the same rights under the law). (2) The main counts are basically a general claim that Nintendo breached its warranties under Federal law and CA law. "The Plaintiffs try to make the case that Nintendo has produced intentionally defective products, that they know about the defects because of Internet complaints and that they haven't held up their end of the contract." Hoeg noted that because Nintendo did in fact fix one of Diaz's Joy-Con controllers under warranty, there likely was no formal contractual violation. "By all outward appearances they did what they said they were going to do and the lead plaintiff received more than a year of use out of his purchase," Hoeg continued. "Thus there is already an issue with whether or not he was truly harmed. [Also,] as the lead plaintiff is usually the most sympathetically situated plaintiff a law firm can find, this already suggests a certain softness in the class." That being said, Hoeg also stressed that "California is generally the most ‘consumer protection' oriented of the US jurisdictions, and no doubt why the lead plaintiff (from CA) was selected." From a PR standpoint, it's not a great situation for Nintendo, but the company does need to take any possible legal consequences seriously as well. "Should Nintendo ‘worry' about it? The answer is yes," Hoeg continued. "This will be bad publicity for them and their Switch product, especially with a new one on the way and the holidays around the corner, and it would behoove them to make it go away. The plaintiff's attorney knows this. This is how the class action litigation boutique model works. So I would expect them to settle if they can't get it immediately kicked out of court with prejudice." If Hoeg's assessment is correct, there's a chance that this class action doesn't even proceed to discovery. In the end, to put it in layman's terms, this suit feels like it's overblown. "I think the likely state of reality is that Nintendo sold somewhat cheap Joy-Cons with an expected lifespan of 1-3 years under a 1-year warranty That doesn't make them the sellers of high-end consumer goods, but it doesn't make them fraudsters either. The law generally recognizes a usefulness in lower quality goods sold at lower prices," Hoeg explained. "Or said another way, you don't buy a cheap fan at Walmart and expect it to last as long as a $3,000 fan you buy from an upscale fixture store. If you buy a product with a 1-year warranty and get 13+ months out of it, the law isn't terribly inclined to swing around and get you a refund. As a side note, the law of products liability is generally much more concerned with actual physical injury or death than mere loss of use of a product. Did that swingset kill your child? Was that pill incorrectly labeled? . . . That's not to say that claims like the one at issue here can't succeed, just that it is a much tougher road for plaintiffs." We reached out to Nintendo for comment and will update the story if we receive a response. [GN] NRG ENERGY: Removes Tejero Labor Class Suit to N.D. California -------------------------------------------------------------- Defendant Corporations removed on July 19, 2019, the lawsuit titled AARON TEJERO, JR., individually, and on behalf of other members of the general public similarly situated v. NRG ENERGY SERVICES, LLC, a Delaware Limited Liability Company; NRG ENERGY SERVICES GROUP LLC, a Delaware Limited Liability Company; NRG ENERGY, INC., a Delaware Corporation; and DOES 1 through 10, inclusive, Case No. MSC18-01067, from the Superior Court of the State of California for the County of Contra Costa to the U.S. District Court for the Northern District of California. The District Court Clerk assigned Case No. 4:19-cv-04187-DMR to the proceeding. On May 25, 2018, the Plaintiff filed an unverified complaint in the Superior Court. On July 12, 2018, after filing their Answer to the Complaint in the Superior Court, NRG removed the action to the District Court (assigned Case No. 4:18-cv-04188-PJH). On November 16, 2018, the District Court granted the Plaintiff's motion to remand, finding that NRG had not met its burden of showing by a preponderance of the evidence that the amount in controversy exceeds $5 million. On May 5, 2019, the Plaintiff filed a First Amended Complaint. The FAC alleges 10 causes of action, including violation of the California Labor Code Sections 510 and 1198 (Unpaid Overtime), and Sections (Unpaid Minimum Wages).[BN] Defendants NRG ENERGY SERVICES LLC, NRG ENERGY SERVICES GROUP LLC and NRG ENERGY, INC. are represented by: Thomas M. McInerney, Esq. Carolyn B. Hall, Esq. Roshni Chaudhari, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Steuart Tower, Suite 1300 One Market Plaza San Francisco, CA 94105 Telephone: (415) 442-4810 Facsimile: (415) 442-4870 E-mail: tmm@ogletree.com carolyn.hall@ogletree.com roshni.chaudhari@ogletree.com OHIO EQUITY PLUS: Brett Sues Over Illegal Telemarketing Calls ------------------------------------------------------------- Erin Brett on behalf of herself and others similarly situated, Plaintiff, v. Ohio Equity Plus LLC, Defendant, Case No. 19-cv-01633 (N.D. Ohio, July 17, 2018), seeks injunctive relief, statutory damages and any other available legal or equitable remedies for violations of the Telephone Consumer Protection Act. Brett alleges that Ohio Equity Plus made telemarketing calls to her phone without her prior express written consent. Brett is on the National Do-Not-Call Registry. [BN] The Plaintiff is represented by: Michael C. Lueder, Esq. HANSEN REYNOLDS LLC 301 N. Broadway, Suite 400 Milwaukee, WI 53202 Tel: (414) 273-7676 Fax: (414) 273-8476 Email: mlueder@hansenreynolds.com - and - Anthony Paronich, Esq. PARONICH LAW, P.C. 350 Lincoln Street, Suite 2400 Hingham, MA 02043 Tel: (617) 485-0018 Fax: (508) 318-8100 Email: anthony@paronichlaw.com OMNICELL INC: Bernstein Liebhard Files Securities Class Suit ------------------------------------------------------------ Bernstein Liebhard LLP, a nationally acclaimed investor rights law firm, announces that a securities class action lawsuit has been filed on behalf of investors who purchased shares of Omnicell Inc. (OMCL) between October 25, 2018, and July 11, 2019, inclusive (the "Class Period"). The lawsuit, which was filed in the United States District Court for the Northern District of California, seeks to recover damages under the Securities Exchange Act of 1934. If you purchased Omnicell securities, and/or would like to discuss your legal rights and options please visit Omnicell OMCL Shareholder Class Action or contact Matthew E. Guarnero toll free at (877) 779-1414 or MGuarnero@bernlieb.com According to the lawsuit, throughout the Class Period, Defendants failed to disclose: (1) that the Company recognized revenue for certain transactions before fulfilling its performance obligations; (2) that the Company engaged in improper accounting practices to meet revenue targets; (3) that the Company experienced weaker demand for new product lines than it had previously projected; (4) that, as a result, the Company would be required to write-off certain inventory; (5) that the Company misclassified certain expenses as capitalized expenditures; and (6) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. On July 11, 2019, GlassHouse Research LLC published a report entitled "Ominous Omnicell, Inc. (OMCL) Delays the Inevitable." The report concluded that Omnicell prematurely recognized $38.3 million in sales that should have been recognized long-term consistent with the Company's performance obligations. Among other things, the report alleged that Omnicell's "new product lines [were] previously pushed onto hospitals, GPOs, and other customers to the point where they are stuffed with products and hesitant to procure any more inventory, especially when dealing with implementation issues." The report further stated that, due to these accounting practices, the Company would be required to write off $23 million of obsolete inventory. Due to inconsistent increases in capitalized expenses and prepaid commissions, the report alleged that $38.0 million in capitalized expenditures should have been expensed. On this news, the Company's stock price fell $11.41 per share, or nearly 14%, to close at $75.11 per share on July 11, 2019, on unusually heavy trading volume. If you purchased Omnicell securities, and/or would like to discuss your legal rights and options please visit https://tinyurl.com/y4vkcsqx or contact Matthew E. Guarnero toll free at (877) 779-1414 or MGuarnero@bernlieb.com. If you wish to serve as lead plaintiff you must move the court no later than September 17, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you choose to take no action, you may remain an absent class member. Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. As a result of its success litigating hundreds of lawsuits and class actions, the Firm has been named to The National Law Journal's "Plaintiffs' Hot List" thirteen times and listed in The Legal 500 for ten consecutive years. Contact Information: Matthew E. Guarnero, Esq. Bernstein Liebhard LLP https://www.bernlieb.com Tel: (877) 779-1414 E-mail: MGuarnero@bernlieb.com [GN] OMNICELL INC: Federman & Sherwood Files Securities Class Action --------------------------------------------------------------- Federman & Sherwood announces that on July 18, 2019, a class action lawsuit was filed in the United States District Court for the Northern District of California against Omnicell, Inc. (NASDAQ: OMCL). The complaint alleges violations of federal securities laws, Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5, including allegations of issuing a series of material or false misrepresentations to the market which had the effect of artificially inflating the market price during the Class Period, which is October 25, 2018 through July 11, 2019. To learn how to participate in this action, please visit https://tinyurl.com/yxpb3akk Plaintiff seeks to recover damages on behalf of all Omnicell, Inc. shareholders who purchased common stock during the Class Period and are therefore a member of the Class as described above. You may move the Court no later than Monday, September 16, 2019 to serve as a lead plaintiff for the entire Class. However, in order to do so, you must meet certain legal requirements pursuant to the Private Securities Litigation Reform Act of 1995. If you wish to discuss this action, obtain further information and participate in this or any other securities litigation, or should you have any questions or concerns regarding this notice or preservation of your rights, please contact: Robin Hester FEDERMAN & SHERWOOD 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Email: rkh@federmanlaw.com Or, visit the firm's website at http://www.federmanlaw.com/[GN] OMNICELL INC: Glancy Prongay Files Securities Fraud Class Action ---------------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM") announces that it has filed a class action lawsuit in the United States District Court for the Northern District of California, captioned Bursick v. Omnicell, Inc. et al., (Case No. 3:19-cv-04150), on behalf of persons and entities that purchased or otherwise acquired Omnicell, Inc. (NASDAQ: OMCL) securities between October 25, 2018 and July 11, 2019, inclusive (the "Class Period"). Plaintiff pursues claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"). Investors are hereby notified that they have 60 days from the date of this notice to move the Court to serve as lead plaintiff in this action. On July 11, 2019, GlassHouse Research LLC published a report alleging that Omnicell prematurely recognized over $38 million in sales. The report also alleged that new product lines had been pushed onto customers, who were hesitant to purchase more inventory because of implementation issues, and that the Company will need to write off $23 million in obsolete inventory. On this news, the Company's stock price fell $11.41 per share, or nearly 14%, to close at $75.11 per share on July 11, 2019, thereby injuring investors. The complaint filed in this class action alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that the Company recognized revenue for certain transactions before fulfilling its performance obligations; (2) that the Company engaged in improper accounting practices to meet revenue targets; (3) that the Company experienced weaker demand for new product lines than it had previously projected; (4) that, as a result, the Company would be required to write-off certain inventory; (5) that the Company misclassified certain expenses as capitalized expenditures; and (6) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. If you purchased Omnicell securities during the Class Period, you may move the Court no later than 60 days from the date of this notice to ask the Court to appoint you as lead plaintiff. To be a member of the Class you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the Class. If you wish to learn more about this action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Lesley Portnoy, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles, California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. If you inquire by email please include your mailing address, telephone number and number of shares purchased. [GN] OMNICELL INC: Hagens Berman Files Securities Class Action --------------------------------------------------------- Hagens Berman Sobol Shapiro LLP alerts investors in Omnicell, Inc. (OMCL) to the securities class action, Bursick v. Omnicell, Inc. et al., No. 3:19-cv-04150, filed in the U.S. District Court for the Northern District of California. If you purchased or otherwise acquired OMCL securities between October 25, 2018 and July 11, 2019 (the "Class Period"), you do not need to sign up to be included in the putative class of investors. If you suffered significant losses (in excess of $50,000) you may qualify to be a lead plaintiff -- one who selects and oversees the attorneys prosecuting the case. If you wish to serve as a lead plaintiff in this class action, you must move the Court no later than September 16, 2019 (the "Lead Plaintiff deadline"). Contact Hagens Berman immediately for more information about the case and being a lead plaintiff https://www.hbsslaw.com/investor-fraud/omnicell or contact Reed Kathrein, who is leading the firm's investigation, by calling 510-725-3000 or emailing OMCL@hbsslaw.com According to the Complaint, Defendants misled investors by concealing that Omnicell (1) engaged in improper revenue recognition, (2) experienced weaker demand for new product lines than it previously projected, (3) would be required to write off certain obsolete inventory, and (4) misclassified certain expenses as capitalized expenditures. "We're focused on investors' losses, whether Omnicell and senior management engaged in GAAP violations and, if so, the extent to which investors may have been misled," said Hagens Berman partner Reed Kathrein. Whistleblowers: Persons with non-public information regarding Omnicell should consider their options to help in the investigation or take advantage of the SEC Whistleblower program. Under the new program, whistleblowers who provide original information may receive rewards totaling up to 30 percent of any successful recovery made by the SEC. For more information, call Reed Kathrein at 510-725-3000 or email OMCL@hbsslaw.com Hagens Berman is a national law firm with nine offices in eight cities around the country and eighty attorneys. The firm represents investors, whistleblowers, workers and consumers in complex litigation. More about the firm and its successes is located at hbsslaw.com. For the latest news visit our newsroom or follow us on Twitter at @classactionlaw. Contact: Reed Kathrein, Esq. Tel: 510-725-3000 E-mail: reed@hbsslaw.com [GN] OMNICELL INC: Sept. 16 Lead Plaintiff Bid Deadline -------------------------------------------------- Rosen Law Firm, a global investor rights law firm, announces the filing of a class action lawsuit on behalf of purchasers of the securities of Omnicell, Inc. (OMCL) from October 25, 2018 through April 9, 2019, inclusive (the "Class Period"). The lawsuit seeks to recover damages for Omnicell investors under the federal securities laws. To join the Omnicell class action, go to https://tinyurl.com/y5onc3tp or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) Omnicell recognized revenue for certain transactions before fulfilling its performance obligations; (2) the Company engaged in improper accounting practices to meet revenue targets; (3) the Company engaged in improper accounting practices to meet revenue targets; (4) as a result, the Company would be required to write-off certain inventory; (5) the Company misclassified certain expenses as capitalized expenditures; and (6) as a result, defendants' statements about Omnicell's business, operations, and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than September 16, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-register-1624.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or cases@rosenlegal.com Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. Rosen Law Firm has secured hundreds of millions of dollars for investors. Contact: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 Website: www.rosenlegal.com Email: lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com [GN] ONE WORLD TELECOM: Has Made Unsolicited Calls, Boriskin Claims -------------------------------------------------------------- ELIZABETH BORISKIN, individually and on behalf of all others similarly situated, Plaintiff v. ONE WORLD TELECOM LLC d/b/a NO PIN, Defendant, Case No. 9:19-cv--81063 (S.D. Fla., July 26, 2019) seeks to stop the Defendant's practice of making unsolicited calls. One World Telecom provides telephone features and services to small business customers. [BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400-4713 E-mail: mhiraldo@hiraldolaw.com - and - Michael Eisenband, Esq. EISENBAND LAW, P.A. 515 E. Las Olas Boulevard, Suite 120 Ft. Lauderdale, FL 33301 Telephone: (954) 533-4092 E-mail: MEisenband@Eisenbandlaw.com ONLINE INFORMATION: Freeman Files FDCPA Suit in E.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against Online Information Services, Inc. The case is styled as Yisroel Freeman on behalf of himself and all other similarly situated consumers, Plaintiff v. Online Information Services, Inc., Defendant, Case No. 1:19-cv-04398 (E.D. N.Y., July 31, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. ONLINE Information Services, Inc. is a developer of credit risk assessment and debt recovery solutions.[BN] The Plaintiff is represented by: Adam Jon Fishbein, Esq. Adam J. Fishbein, P.C. 735 Central Avenue Woodmere, NY 11598 Phone: (516) 668-6945 Email: fishbeinadamj@gmail.com OWL INC: Perez Appeals M.D. Florida Decision to Eleventh Circuit ---------------------------------------------------------------- Plaintiffs Jose Perez, Douglas Richey and Alfredo Santos filed an appeal from a Court ruling in their lawsuit titled Jose Perez, et al. v. Owl, Inc., Case No. 6:17-cv-01092-CEM-GJK, in the U.S. District Court for the Middle District of Florida. As previously reported in the Class Action Reporter, the Hon. Carlos E. Mendoza granted the Plaintiffs' Renewed Motion for Issuance of Notice. These collective subclasses are conditionally certified: a. Road Supervisors: Drivers employed by Owl, Inc. since June 15, 2014, who have been labeled as "road supervisors" and paid on a salary basis; and b. Hourly Drivers: Drivers employed by Owl, Inc. since June 15, 2014, who have been paid on an hourly basis. The appellate case is captioned as Jose Perez, et al. v. Owl, Inc., Case No. 19-90011, in the United States Court of Appeals for the Eleventh Circuit.[BN] Plaintiffs-Petitioners JOSE PEREZ, on behalf of themselves and all others similarly situated; ALFREDO SANTOS, on behalf of themselves and all others similarly situated; and DOUGLAS RICHEY, on behalf of themselves and all others similarly situated, are represented by: Joseph Egan, Jr., Esq. EGAN, LEV, LINDSTROM & SIWICA, P.A. 231 E. Colonial Drive PO Box 2231 Orlando, FL 32802-2231 Telephone: (407) 422-1400 E-mail: jegan@eganlev.com - and - Eric Jacob Lindstrom, Esq. EGAN, LEV, LINDSTROM & SIWICA, P.A. PO Box 5276 Gainesville, FL 32627 Telephone: (352) 672-6901 E-mail: elindstrom@eganlev.com - and - Shannon Liss-Riordan, Esq. Benjamin J. Weber, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 E-mail: sliss@llrlaw.com bweber@llrlaw.com Defendant-Respondent OWL, INC., d.b.a. Owl, Inc. Transportation is represented by: Marci E. Britt, Esq. COTNEY CONSTRUCTION LAW, LLP 8621 E Martin Luther King Jr. Blvd. Tampa, FL 33610 Telephone: (813) 853-0574 E-mail: MBritt@TrentCotney.com - and - Anthony Tilton, Esq. COTNEY CONSTRUCTION LAW, LLP 113 S Monroe St., Suite 405 Tallahassee, FL 32301 Telephone: (850) 213-1295 E-mail: atilton@trentcotney.com - and - James Larry Stine, Esq. WIMBERLY LAWSON STECKEL SCHNEIDER & STINE, PC 3400 Peachtree Rd. NE, Suite 400 Atlanta, GA 30326-1107 Telephone: (404) 365-0900 E-mail: jls@wimlaw.com PER.SE BEAUTY: Kiler Files ADA Suit in E.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Per.Se Beauty Incorporated. The case is styled as Marion Kiler Individually and as the representative of a class of similarly situated persons, Plaintiff v. Per.Se Beauty Incorporated also known as: PerSe Beauty, Inc. doing business as: Prose, Defendant, Case No. 1:19-cv-04404 (E.D. N.Y., July 31, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Per.Se Beauty Incorporated provides personal care products. The Company offers soap and other detergent products.[BN] The Plaintiff is represented by: Dan Shaked, Esq. Shaked Law Group, P.C. 44 Court Street, Suite 1217 Brooklyn, NY 11217 Phone: (917) 373-9128 Fax: (718) 504-7555 Email: shakedlawgroup@gmail.com PETSMART INC: Delsalvo Claims Website not Blind-Friendly -------------------------------------------------------- Brett Delsalvo, individually and on behalf of themselves and all others similarly situated, Plaintiff, v. Petsmart, Inc. and Does 1 to 10, inclusive, Defendant, Case No. 19-cv-06172 (C.D. Cal., July 17, 2019), seeks preliminary and permanent injunction, compensatory, statutory and punitive damages and fines, prejudgment and post-judgment interest, costs and expenses of this action together with reasonable attorneys' and expert fees and such other and further relief under the Americans with Disabilities Act and California's Unruh Civil Rights Act. Defendant's website https://www.petsmart.com/ offers pet merchandise online. Brett Delsalvo is legally blind and claims that the site cannot be accessed by the visually-impaired. [BN] Plaintiff is represented by: Bobby Saadian, Esq. Thiago Coelho, Esq. WILSHIRE LAW FIRM 3055 Wilshire Blvd., 12th Floor Los Angeles, CA 90010 Tel: (213) 381-9988 Fax: (213) 381-9989 Email info@wilshirelawfirm.com PREMIERE CREDIT: Ward Files FDCPA Suit in M.D. Florida ------------------------------------------------------ A class action lawsuit has been filed against Premiere Credit of North America, LLC. The case is styled as Dominique Ward individually and on behalf of all others similarly situated, Plaintiff v. Premiere Credit of North America, LLC, John Does 1-25, Defendants, Case No. 3:19-cv-00893 (M.D. Fla., July 31, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Premiere Credit of North America, LLC is a debt collection firm that offers financial services. It serves federal and state government, universities, guaranty agencies, private lenders, healthcare providers, and other asset class creditors in the United States.[BN] The Plaintiff is represented by: Justin Zeig, Esq. Zeig Law Firm, LLC 3595 Sheridan Street, Suite 103 Hollywood, FL 33021 Phone: (754) 217-3084 Email: justin@zeiglawfirm.com PROCOLLECT INC: Bradswell Files FDCPA Suit in Connecticut --------------------------------------------------------- A class action lawsuit has been filed against ProCollect, Inc. The case is styled as Valerie Bradswell also known as: Valerie Nelson individually and on behalf of all others similarly situated, Plaintiff v. ProCollect, Inc., John Does 1-25, Defendants, Case No. 3:19-cv-01179 (D. Conn., July 31, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. ProCollect, Inc. is one of the nation's debt collection agencies.[BN] The Plaintiff is represented by: Raphael Deutsch, Esq. Stein Saks PLLC 285 Passaic St Hackensack, NJ 07601 Phone: (347) 668-9326 Email: rdeutsch@steinsakslegal.com PROGRESSIVE SELECT: Lopez's Class Cert. Bid Denied as Moot ---------------------------------------------------------- The Hon. William P. Dimitrouleas granted the Plaintiff's Unopposed Motion to Withdraw Class Certification Motion in the lawsuit entitled MICHAEL A. LOPEZ, on behalf of himself and all others similarly situated v. PROGRESSIVE SELECT INSURANCE CO., Case No. 0:18-cv-61844-WPD (S.D. Fla.). The Plaintiff's original Motion to Certify Class was denied as moot as the Plaintiff has withdrawn the motion. The Plaintiff has also filed a new motion for class certification on August 2, 2019.[CC] PSP DISTRIBUTION: Ash Sues over Mislabeled Cat Food Products ------------------------------------------------------------ CARYN ASH, individually and on behalf of all others similarly situated, Plaintiff v. PSP DISTRIBUTION, LLC; PSP FRANCHISING LLC; and PSP GROUP, LLC, Defendants, Case No. 1:19-cv-05042 (N.D. Ill., July 26, 2019) alleges that the Defendants' brand of cat food known as Redford Naturals do not contain ground flaxseed. Instead, the Redford Naturals contain whole flaxseed which does not provide the nutritional and health benefits compared to ground flaxseed. According to the complaint, the ground flaxseed -- a seed derived from the flax plant -- and flaxseed oil are popular nutritional supplements due to the fact that they are rich sources of the essential fatty acid alpha-linolenic acid ("ALA"), which is a heart-healthy omega-3 fatty acid. Ground flaxseed and flaxseed oil reduce cholesterol and blood sugar, treat digestive conditions, and treat inflammatory diseases such as allergies, arthritis, and kidney and heart disease. The nutritional and health benefits of ground flaxseed and flaxseed oil also extend to animals, and therefore many types of animal food contain ground flaxseed or flaxseed oil. Several scientific studies conducted on humans and animals found that ground flaxseed is more effective at delivering ALA than whole flaxseed. For example, one study noted that plasma levels of ALA in subjects fed whole flaxseed did not vary significantly from their baseline ALA values—i.e., consuming whole flaxseed is essentially the same as consuming no flaxseed at all. Studies have also found that adverse effects were more severe in subjects consuming whole flaxseed as opposed to ground flaxseed and flaxseed oil, such that some of the test subjects had to withdraw from the study after consuming whole flaxseed due to the severity of the adverse effects. The Defendants' Redford Naturals do not contain ground flaxseed. Instead, these varieties of Redford Naturals contain whole flaxseed. Prior to purchasing Redford Naturals, the Plaintiff and members of the Class were repeatedly exposed to, saw, read, and understood the Defendants' representations regarding the ingredients in Redford Naturals, including the representation that the aforementioned flavors of Redford Naturals contained ground flaxseed. Those representations were made on the Defendants' website. The Defendants, intended that the Plaintiff and members of the Class rely on the standardized representations contained on cans of Redford Naturals, and on their website. In reliance on the Defendants' representations that the aforementioned flavors of Redford Naturals contained ground flaxseed, the Plaintiff and members of the Class reasonably believed that these varieties of Redford Naturals contained ground flaxseed and were willing to pay a premium for them over other cat food that did not contain any flaxseed. Based on that belief, the Plaintiff and members of the Class purchased the aforementioned varieties of Redford Naturals and paid a premium for them. Psp Distribution, LLC is a Delaware limited liability company with its principle place of business at 17197 North Laurel Park Drive, Suite 402, Livonia, MI 48152, that does business nationwide, including in Cook County and throughout the state of Illinois. [BN] The Plaintiff is represented by: Thomas A. Zimmerman, Jr., Esq. Sharon A. Harris, Esq. Matthew C. De Re, Esq. Nickolas J. Hagman, Esq. ZIMMERMAN LAW OFFICES, P.C. 77 W. Washington Street, Suite 1220 Chicago, IL 60602 Telephone: (312) 440-0020 Facsimile: (312) 440-4180 E-mail: tom@attorneyzim.com sharon@attorneyzim.com matt@attorneyzim.com nick@attorneyzim.com PURDUE PHARMA: Poughkeepsie City Opioid Row Removed to S.D.N.Y. --------------------------------------------------------------- The case captioned The City of Poughkeepsie, individually and on behalf of all others similarly situated, Plaintiffs, V. Purdue Pharma L.P., Purdue Pharma Inc., Purdue Frederick Company, Inc., Teva Pharmaceuticals Usa, Inc., Cephalon, Inc., Johnson & Johnson, Janssen Pharmaceuticals, Inc., Janssen Pharmaceutica, Inc. (now Janssen Pharmaceuticals), Inc., Ortho-Mcneil-Janssen Pharmaceuticals, Inc. (now Janssen Pharmaceuticals, Inc.), Endo Health Solutions Inc., Endo Pharmaceuticals, Inc., Allergan PLC (formerly Actavis PLC), Actavis, Inc. (formerly Watson Pharmaceuticals, Inc.), Watson Laboratories, Inc., Actavis LLC, Actavis Pharma, Inc. (formerly Watson Pharma, Inc.), Insys Therapeutics, Inc., Mckesson Corporation, Cardinal Health Inc., Amerisourcebergen Drug Corporation, American Medical Distributors, Inc., Bellco Drug Corp., Blenheim Pharmacal, Inc., Eveready Wholesale Drugs Ltd., Kinray, LLC, Pss World Medical, Inc., Rochester Drug Cooperative, Inc., Darby Group Companies, Inc., Raymond Sackler Family, Mortimer Sackler Family, Richard S. Sackler, Jonathan D. Sackler, Mortimer D. A. Sackler, Kathe A. Sackler, Ilene Sackler Lefcourt, Beverly Sackler, Theresa Sackler, David A. Sackler, Rhodes Technologies, Rhodes Technologies Inc., Rhodes Pharmaceuticals L.P., Rhodes Pharmaceuticals Inc., Trust For The Benefit Of Members of the Raymond Sackler Family, the P.F. Laboratories, Inc., Stuart D. Baker, Par Pharmaceutical, Inc., Par Pharmaceutical Companies, Inc., Mallinckrodt PLC, Mallinckrodt LLC, Specgx LLC, Mylan Pharmaceuticals, Inc., Sandoz, Inc., West-Ward Pharmaceuticals Corp. (now Hikma Pharmaceuticals, Inc.), Amneal Pharmaceuticals, Inc., Noramco, Inc., John N. Kapoor, Anda, Inc., Discount Drug Mart, Inc., HBC Service Company, Morris & Dickson Co., LLC, Publix Supermarkets, Inc., SAJ Distributors, Value Drug Company, Smith Drug Company, CVS Health Corporation, Rite Aid Of Maryland, Inc., Inc., Rite Aid Corp., Walgreens Boots Alliance, Inc., Walgreen Eastern Co., Walgreen, Co., Wal-Mart Inc., Miami-Luken, Inc., The Kroger Co., Henry Schein, Inc. and Henry Schein Medical Systems, Inc., Defendants, Case No. 2019-51786, (N.Y. Sup., May 15, 2019), was removed to the United States District Court for the Southern District of New York on July 22, 2019, under Case NO. 19-cv-06800. Defendants are manufacturers, distributors, and dispensers of prescription opioid medications that allegedly contain opioids which have narcotic effects and may cause addiction. The City of Poughkeepsie asserts claims for deceptive acts and practices under New York General Business Law, false advertising under New York General Business Law, public nuisance, violation of New York Social Services Law, fraud, unjust enrichment and negligence.[BN] CVS Health Corporation is represented by: Shawn P. Naunton, Esq. Adam L. Fotiades, Esq. Vanessa I. Garcia, Esq. ZUCKERMAN SPAEDER LLP 485 Madison Avenue, 10th Floor New York, NY 10022 Telephone: (212) 704-9600 Fax: (212) 704-4256 E-mail: snaunton@zuckerman.com afotiades@zuckerman.com vgarcia@zuckerman.com - and - Conor B. O'Croinin, Esq. ZUCKERMAN SPAEDER LLP 100 East Pratt Street, Suite 2440 Baltimore, MD 21202–1031 Telephone: (410) 949–1160 Fax: (410) 659-0436 E-mail: cocroinin@zuckerman.com QUOGUE CLUB: Duncan Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Quogue Club Management LLC. The case is styled as Eugene Duncan and on behalf of all others similarly situated, Plaintiff v. Quogue Club Management LLC, Defendant, Case No. 1:19-cv-07170 (S.D. N.Y., July 31, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. The Quogue Club at Hallock House in Quogue, NY, is a boutique hotel at the gateway to the Hamptons and the east end of Long Island.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. The Marks Law Firm PC 175 Varick Street 3rd Floor New York, NY 10014 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: bmarkslaw@gmail.com RBS CITIZENS: Renewed Bid to Decertify Reinig FLSA Class Denied --------------------------------------------------------------- In the case, ALEX REINIG, KEN GRITZ, BOB SODA, MARY LOU GRAMESKY, PETER WILDER SMITH, WILLIAM KINSELLA, DANIEL KOLENDA, VALERIA DAL PINO, AHMAD NAJI, ROBERT PEDERSON, TERESA FRAGALE, and DAVID HOWARD, Plaintiffs, v. RBS CITIZENS, N.A., Defendant, Case No. 15cv1541 (W.D. Pa.), Judge Arthur J. Schwab of the U.S. District Court for the Western District of Pennsylvania denied without prejudice the Defendant's Renewed Motion to Decertify the FLSA Collective Action. The Court previously certified the Plaintiffs' collective action pursuant to Section 216(b) of the Fair Labor Standards Act ("FLSA") on May 3, 2016. Thereafter, approximately 350 Plaintiffs opted-in to the FLSA collective action between May of 2016 and August of 2017. The Defendant filed a Motion to Decertify the FLSA Collective Action on April 11, 2017. The Court denied the Motion to Decertify on Aug. 22, 2017. The U.S. Court of Appeals for the Third Circuit, in its precedential Opinion, ruled that it declined to exercise pendent appellate jurisdiction over the FLSA collective action certification order in the case and that it will leave undisturbed the District Court certifying a collective action under the FLSA. It held that that Rule 23 class certification and FLSA final collective action certification are not inextricably intertwined. Thus, the Court of Appeals held that there was not sufficient overlap in the facts relevant to both issues to warrant plenary review. Despite the language of the precedential Opinion of the Court of Appeals that (1) the legal standard for a FLSA collective action is meaningfully different than the legal standard for a Rule 23 class action, and (2) there was insufficient overlap in the facts relevant to the FLSA and Rule 23 issues, the Defendant in effect now argues to the contrary, and thus seeks the Court to reconsider its previous decision not to decertify the FLSA collective action. Judge Schwab denied the Defendant's Motion for Reconsideration is denied. He finds that the Defendant does not cite to any intervening change in controlling law from the Court of Appeals for the Third Circuit. The only "new" case cited by the Defendant is an opinion of the U.S. Court of Appeals for the Ninth Circuit (Campbell v. City of Los Angeles), which is inconsistent with the governing precedential Opinion in the case, and factually inapt. Indeed, the only possible intervening change in controlling law is the Court of Appeal's Opinion in the case, which stated explicitly that its Rule 23 analysis did not apply to the issue of FLSA certification because the two standards are "fundamentally different." Further, the Judge finds that the Defendant fails to cite any "new evidence" and fails to cite any "clear error of law or manifest injustice," other than its continued disagreement with the Special Master's Second Report, and the Court's prior rulings on the FLSA collective action issue. The factual record sufficiently establishes that the opted-in Plaintiffs are "similarly situated." Therefore, the Defendant's Renewed Motion to Decertify the FLSA Collective Action is denied without prejudice, and a new Pretrial/Trial Order will be promptly entered on the following narrow, single-issue jury question applicable to the collective FLSA claims (scheduling the jury trial to commence on Sept. 23, 2019): Did the Plaintiffs prove by a preponderance of the evidence that Citizens Bank had a policy or practice that caused mortgage loan officers to not report all of the hours they worked (i.e., to work `off the clock')? A full-text copy of the Court's June 25, 2019 Memorandum Opinion and Order is available at https://is.gd/bEXdll from Leagle.com. DAVID R. COHEN, Special Master, pro se. ALEX REINIG, KEN GRITZ & BOB SODA, Plaintiffs, represented by Daniel A. Horowitz -- dhorowitz@swartz-legal.com -- Swartz Swidler LLC, Justin L. Swidler, Swartz Swidler LLC, Joshua Boyette -- jboyette@swartz- legal.com -- Swartz Swidler LLC, pro hac vice & Robert D. Soloff, Robert D. Soloff, P.A., pro hac vice. MARY LOU GRAMESKY, PETER WILDER SMITH, WILLIAM KINSELLA, DANIEL KOLENDA, VALERIE DAL PINO, AHMAD NAJI, ROBERT PEDERSON, TERESA FRAGALE & DAVID HOWARD, Plaintiffs, represented by Daniel A. Horowitz, Swartz Swidler LLC, Justin L. Swidler, Swartz Swidler LLC & Joshua Boyette, Swartz Swidler LLC, pro hac vice. DANIEL JENKINS & MARK ROSS, Plaintiffs, represented by Joshua Boyette, Swartz Swidler LLC. RBS CITIZENS, N.A., Defendant, represented by Richard L. Etter, Fox Rothschild LLP, Thomas E. Hill -- thill@reedsmith.com -- Reed Smith LLP, pro hac vice, Christina T. Tellado -- ctellado@reedsmith.com -- Reed Smith LLP, Gretchen Woodruff Root -- groot@reedsmith.com -- Reed Smith LLP & Robert J. Tyler, III -- rtyler@reedsmith.com -- Reed Smith LLP. RECOLOGY SAN FRANCISCO: Dwelle Files Suit in Cal. Super. Ct. ------------------------------------------------------------ A class action lawsuit has been filed against RECOLOGY SAN FRANCISCO. The case is styled as THEA DWELLE, FOR HERSELF INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff v. RECOLOGY SAN FRANCISCO, GOLDEN GATE DISPOSAL & RECYCLING COMPANY, SUNSET SCAVENGER COMPANY, DOES 1-50, Defendants, Case No. CGC19578069 (Cal. Super. Ct., San Francisco Cty., July 31, 2019). The case type is stated as "BUSINESS TORT". Recology is an integrated resource recovery company headquartered in San Francisco, California. The company also operates transfer stations, materials recovery facilities (MRFs), a number of landfills, and continues to spearhead renewable energy projects.[BN] SHOWS CALI: Court Dismisses Calogero FDCPA Suit With Prejudice -------------------------------------------------------------- In the case, IRIS CALOGERO, v. SHOWS, CALI & WALSH, LLP, a Louisiana limited liability partnership; MARY CATHERINE CALI, an individual; and JOHN C. WALSH, an individual, SECTION M (3), Civil Action No. 18-6709 (E.D. La.), Judge Barry W. Ashe of the U.S. District Court for the Eastern District of Louisiana granted the Defendants' motion to dismiss Calogero's individual and class action Fair Debt Collection Practices Act ("FDCPA") claims. In August and September 2005, Hurricanes Katrina and Rita caused widespread property damage in Louisiana and other Gulf Coast states. To aid in disaster relief, Congress appropriated funds that were administered through the Community Development Block Grant Program of the U.S. Department of Housing and Urban Development ("HUD") and distributed to state governments. Louisiana created the Road Home program to disburse these funds to homeowners in the form of grants to compensate them up to $150,000 for structural damages caused by the storms. The Road Home program was administered through the Louisiana Office of Community Development ("OCD") and the Louisiana Recovery Authority. It placed certain conditions on the recipients' use of the money and other covenants to run with the land. Calogero's home in Slidell, Louisiana, was significantly damaged by the storms. On May 11, 2007, Calogero entered into a contract with the OCD to receive a Road Home grant in the amount of $33,392.68. In consideration of receipt of all Grant proceeds as compensation for damages incurred by Calogero due to the Hurricanes, she agreed to contractual covenants pertaining to alienation and use of the property, maintenance of flood insurance, and other items. Calogero also agreed to repay to the State any additional funds she received from her insurance company or the Federal Emergency Management Agency ("FEMA") for damage to the property caused by Hurricanes Katrina and/or Rita in the amount by which her Road Home grant would have been reduced if she had received those payments prior to receiving the grant. On Feb. 9, 2018, the Defendants sent Calogero a letter informing her that they represented the OCD in an effort to retrieve Road Home grant overpayments, and that she owed $4,598.89 to the State because she received more in total insurance proceeds than the amount used to calculate her grant. On March 5, 2018, Calogero disputed the alleged overpayment. On April 10, 2018, the Defendants sent a letter to Calogero's counsel explaining that Calogero initially reported to OCD $5,200 in FEMA payments and $14,733.29 in homeowners' insurance proceeds for structural damage, which amounts were used to calculate Calogero's Road Home grant. OCD later learned that Calogero actually received $10,500 from FEMA and $16,003.14 in structural damage insurance proceeds from her insurer, resulting in variances of FEMA benefits and insurance benefits used to calculate her Road Home grant in the amounts of $5,300 and $1,269.85, respectively. As a result, after accounting for a $1,970.96 credit in the lack-of-flood-insurance penalty, OCD calculated that Calogero's Road Home grant should have been $28,793.79, rather than the $33,392.68 she received. On July 16, 2018, Calogero filed the action alleging that Defendants violated the FDCPA because the collection letter did not inform her both that the alleged debt is prescribed and thus unenforceable, and that any repayment would restart the statute of limitations. She contends that, by administering the Road Home program to distribute federal funds, the OCD acted as a federal agency and any action to recover overpayments is subject to a six-year statute of limitations under 28 U.S.C. Section 2425. Thus, Calogero argues that the overpayment debt is unenforceable and Defendants' collection letter violated the FDCPA by falsely (according to her) implying that OCD could sue her for breach of contract. Calogero also asserts that the letter misrepresented the nature of her alleged debt because it stated that the entire $4,598.89 Road Home grant overpayment was due to unreported insurance proceeds, when only $1,269,85 of that amount was in unreported insurance proceeds, whereas the rest was unreported payments from FEMA. The Defendants move to dismiss Calogero's individual and class FDCPA claims arguing that the FDCPA is inapplicable because Calogero's obligation to repay the overpayment on her Road Home grant is not a debt as defined by the statute. Calogero counters that her obligation to repay the alleged overpayment is a debt under the FDCPA because it arose from the consumer transaction of her entering into the Road Home contract. She analogizes her situation to that of the seller in Oppenheim v. I.C. Sys., Inc., in which the Eleventh Circuit held that a seller's obligation to repay PayPal, under the user agreement, for funds he withdrew from his account on a transaction that PayPal later reversed as fraudulent on the part of the third-party buyer, was a debt under the FDCPA. According to Calogero, Oppenheim stands for the proposition that a contractual obligation to repay is a debt under the FDCPA. Further, she argues that the Defendants must have considered themselves subject to the FDCPA by including in the collection letter language required by the statute. Judge Ashe explains that the FDCPA is designed in part "to eliminate abusive debt collection practices by debt collectors. Not all payment obligations are "debts" under the FDCPA. Calogero's obligation to repay the alleged Road Home overpayment is not a "debt" as defined by the FDCPA. The precise transaction that created the obligation was OCD's issuing a grant to Calogero under the Road Home program, a condition of which was that she agreed to repay any overpayments. There was no consumer transaction between Calogero and OCD. Calogero did not give OCD money for goods or services, or vice versa. Rather, OCD granted to Calogero money to repair her home -- money that Calogero would never be obligated to repay unless she broke one of the covenants or received an overpayment. The FDCPA's application is limited to the recovery of debts incurred as a result of transactions for the consumption of consumer goods and services. OCD's grant of funds to a hurricane victim that elicited a promise from the recipient to return funds to which she was never entitled is not such a transaction. Calogero did not incur any consumer debt by purchasing any goods or services from OCD; instead she received grant monies, and the obligation to repay arose as a result of the overpayment of the grant funds to which Calogero was never entitled. The overpayment of the Road Home grant funds is more like the overpaid salary the court in Orenbuch v. Leopold, Gross & Sommers, P.C. concluded was not a debt for purposes of the FDCPA, than it is like the quintessential consumer credit transaction at issue in Oppenheim. As such, Calogero's case is distinguishable from Oppenheim. Accordingly, for the foregoing reasons, Judge Ashe granted the Defendants' motion to dismiss, and dismissed with prejudice Calogero's complaint. A full-text copy of the Court's June 25, 2019 Order and Reasons is available at https://is.gd/rVSoJY from Leagle.com. Iris Calogero, On her own behalf and on behalf of all others similarly situated, Plaintiff, represented by Keren E. Gesund -- gesundk@gesundlawoffices.com -- Gesund & Pailet, LLC. Shows, Cali & Walsh, LLP, a Louisiana limited liability partnership, Mary Catherine Cali & John C Walsh, Defendants, represented by David Scranton Daly -- ddaly@frilot.com -- Frilot L.L.C., Allen Joseph Krouse, III -- akrouse@frilot.com -- Frilot L.L.C., Elliot Mitchell Lonker -- elonker@frilot.com -- Frilot L.L.C. & Suzanne Marie Risey -- srisey@frilot.com -- Frilot L.L.C.. SIRIUS XM: Removes Parrella Suit to New Jersey District Court ------------------------------------------------------------- The Defendants removed on July 24, 2019, the lawsuit titled JEFFREY PARRELLA, on behalf of himself and all others similarly situated v. SIRIUS XM HOLDINGS INC. d/b/a SIRIUS XM SATELLITE RADIO; SIRIUS XM RADIO INC.; and JAMES E. MEYER, Case No. MERL00120719, from the Superior Court of New Jersey to the U.S. District Court for the District of New Jersey. The District Court Clerk assigned Case No. 3:19-cv-15778 to the proceeding. The Plaintiff initiated the action in the Superior Court on June 19, 2019. The Plaintiff alleges that Defendants conducted a "bait-and-switch advertising scheme" by advertising to sell to him and others Sirius XM's "Select Service" radio package at a price of $99 for three years, but then sold to him a one year-plan for $68. The Plaintiff's Complaint contends that the Defendants, thereby, violated the New Jersey Consumer Fraud Act, the General Advertising Regulations, and the Truth-in-Consumer Contract, Warranty and Notice Act.[BN] The Plaintiff is represented by: Bharati O. Sharma, Esq. THE WOLF LAW FIRM, LLC 1520 U.S. Highway 130, Suite 101 North Brunswick, NJ 08902 Telephone: (732) 545-7900 Facsimile: (732) 545-1030 E-mail: bsharma@wolflawfirm.net Defendants Sirius XM Holdings Inc., Sirius XM Radio Inc., and James E. Meyer are represented by: Keith J. Miller, Esq. Michael J. Gesualdo, Esq. Justin T. Quinn, Esq. ROBINSON MILLER LLC One Newark Center, 19th Floor Newark, NJ 07102 Telephone: (973) 690-5400 E-mail: kmiller@rwmlegal.com mgesualdo@rwmlegal.com jquinn@rwmlegal.com - and - Mark A. Baghdassarian, Esq. Aaron M. Frankel, Esq. Eileen M. Patt, Esq. KRAMER LEVIN NAFTALIS & FRANKEL LLP 1177 Avenue of the Americas New York, NY 10036 Telephone: (212) 715-9100 E-mail: mbaghdassarian@kramerlevin.com afrankel@kramerlevin.com epatt@kramerlevin.com SOUTHAMPTON VILLAGE: Duncan Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Southampton Village Motel, Inc. The case is styled as Eugene Duncan and on behalf of all other persons similarly situated, Plaintiff v. Southampton Village Motel, Inc., Defendant, Case No. 1:19-cv-07165 (S.D. N.Y., July 31, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Southampton Village Motel is a Hamptons hotel with 5 star service and amenities.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. The Marks Law Firm PC 175 Varick Street 3rd Floor New York, NY 10014 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: bmarkslaw@gmail.com SPIROS PARTNERS: Bailey Hits Misclassification, Unpaid Wages ------------------------------------------------------------ JENNIFER BAILEY, On Behalf of Herself and Others Similarly Situated v. SPIROS PARTNERS, LTD. d/b/a RICK'S CABARET SAN ANTONIO, Case No. 5:19-cv-00866 (W.D. Tex., July 19, 2019), alleges that the Defendant misclassified the Plaintiff and other similarly situated female exotic dancers as "independent contractors" rather than as employees. As a result of this misclassification, the Defendant failed to pay her and other similarly situated female exotic dancers required wages under the Federal Fair Labor Standards Act, Ms. Bailey alleges. Rick's Cabaret is a corporation formed in Texas that operates as a gentlemen's club featuring female exotic dancers at 5418 Brewster Street, in San Antonio, Texas.[BN] The Plaintiff is represented by: Jay Forester, Esq. FORESTER HAYNIE PLLC 1701 N. Market Street, Suite 210 Dallas, TX 75202 Telephone: (214) 210-2100 E-mail: jay@foresterhaynie.com - and - Gregg C. Greenberg, Esq. ZIPIN, AMSTER & GREENBERG, LLC 8757 Georgia Avenue, Suite 400 Silver Spring, MD 20910 Telephone: (301) 587-9373 E-mail: GGreenberg@ZAGFirm.com STANFORD INTERNATIONAL: 5th Cir. Affirms Bar Orders in Zacarias --------------------------------------------------------------- The United States Court of Appeals, Fifth Circuit issued an Opinion affirming the District Court's judgment entering bar orders and approving the settlements in the appeals cases captioned ANTONIO JUBIS ZACARIAS; ROBERTO BARBAR, Plaintiffs-Appellants, v. STANFORD INTERNATIONAL BANK, LIMITED, Defendant, BARRY L. RUPERT; CAROL RUPERT; MICHAEL RISHMAGUE; LIONEL ALESSIO; DAN AULI PANOS, et al., Movants-Appellants, v. OFFICIAL STANFORD INVESTORS' COMMITTEE; MANUEL CANABAL; WILLIS, LIMITED; WILLIS OF COLORADO, INCORPORATED, Interested Parties-Appellees, WILLIS GROUP HOLDINGS LIMITED; WILLIS NORTH AMERICA, INCORPORATED; AMY S. BARANOUCKY; BOWEN MICLETTE; BRITT, INCORPORATED; RALPH S. JANVEY; SAMUEL TROICE, Appellees, v. EDNA ABLE, Interested Party-Appellant, THE OFFICIAL STANFORD INVESTORS' COMMITTEE; SAMUEL TROICE, on their own behalf and on behalf of a class of all others similarly situated; MANUEL CANABAL, on their own behalf and on behalf of a class of all others similarly situated, Plaintiffs-Appellees, v. CARLOS TISMINESKY; ROBERTO BARBAR; ANA LORENA NUILA DE GADALA-MARIA, Plaintiffs-Appellants, v. WILLIS OF COLORADO, INCORPORATED; WILLIS LIMITED; WILLIS GROUP HOLDINGS LIMITED; WILLIS NORTH AMERICA, INCORPORATED; AMY S. BARANOUCKY; BOWEN, MICLETTE; BRITT, INCORPORATED, Defendants-Appellees, v. BARRY L. RUPERT; CAROL RUPERT; MICHAEL RISHMAGUE; LIONEL ALESSIO; DAN AULI PANOS, EDNA ABLE; et al., Appellants, v. RALPH S. JANVEY, in his Capacity as Court-Appointed Receiver for Stanford Receivership Estate, Appellee, EDNA ABLE; ROBERT C. AHDERS; RODRIGO RIVERA ALCAYAGA; DAVID ARNTSEN; CARLIE ARNTSEN; ET AL, Plaintiffs-Appellants, v. WILLIS OF COLORADO, INCORPORATED; WGH HOLDINGS, LTD.; WILLIS LTD., Defendants-Appellees, ANTONIO JUBIS ZACARIAS, Individual; ANA VIRGINIA GONZALEZ DE JUBIS, Individual; GLADIS JUBIS DE ACUNA, Individual; ERIC ACUNA JUBIS, Individual; TULIO CAPRILES, Individual; JORGE CASAUS HERRERO, Individual; MARTHA BLANCHET, Individual; LUIS ZABALA, Individual; EMMA LOPEZ, Individual; ELBA DE LA TORRE, Individual, Plaintiffs-Appellants, v. WILLIS LIMITED; WILLIS OF COLORADO, INCORPORATED, Defendants-Appellees, ANA LORENA NUILA DE GADALA-MARIA, Individual; JOSE NUILA, Individual; JOSE NUILA FUENTES, Individual; GLADYS BONILLA DE NUILA, Individual; GLADYS ELENA NUILA DE PONCE, Individual, et al., Plaintiffs-Appellants, v. WILLIS LIMITED, a United Kingdom Company; WILLIS OF COLORADO, INCORPORATED, a Colorado Corporation, Defendants-Appellees, CARLOS TISMINESKY, Individual; RACHEL TISMINESKY, Individual; FELIPE BRONSTEIN, Individual; ETHEL TISMINESKY DE BRONSTEIN, Individual; GUY GERBY, Individual; VICENTE JUARISTI SUAREZ, Individual; AMPARO MATEO LONGARELA, Individual; SALVADOR GAVILAN, Individual; LARRY FRANK, Individual; MERCEDES BITTAN, Individual; OMAIRA BERMUDEZ, Individual, Plaintiffs-Appellants, v. WILLIS LIMITED; WILLIS OF COLORADO, INCORPORATED, Defendants-Appellees. No. 17-11073, Consolidated with Nos. 17-11114, 17-11122, 17-11127, 17-11128, 17-11129. (5th Cir.). Certain objectors bring this appeal challenging the district court's jurisdiction and discretion to enter the bar orders. Under the operation of Robert Allen Stanford, the Antigua-based Stanford International Bank issued certificates of deposit, (SIB CDs) and marketed them throughout the United States and Latin America. Stanford's financial advisors promoted SIB CDs by blurring the line between the Antiguan bank and Stanford's United States-based financial advisors, creating the impression that SIB CDs were better protected than similar investments backed by the Federal Deposit Insurance Corporation. Stanford trained its brokers to assure potential investors that the Bank's investments were highly liquid and achieved consistent double-digit annual returns, all under the protection of extensive insurance coverage. The Securities and Exchange Commission filed a complaint in the Northern District of Texas against Robert Allen Stanford, the Stanford International Bank, and other Stanford entities, alleging a massive, ongoing fraud. Invoking the court's long-held statutory authority, the Commission requested that the district court take custody of the troubled Stanford entities and delegate control to an appointed officer of the court. After years of litigation, the insurance brokers, negotiating for complete peace, agreed to settle conditioned on bar orders enjoining related Ponzi-scheme suits filed against the brokers. The district court entered the bar orders and approved the settlements. The Plaintiffs-Objectors argue that the district court lacked subject matter jurisdiction to bar claims not before the court. Alternatively, they argue the bar orders were an improper exercise of the district court's power over the receivership. The Court reviews the district court's subject matter jurisdiction de novo and review the settlement for abuse of discretion. The Plaintiffs-Objectors repeatedly urge that their claims are independent and distinct from those asserted by the receiver and Investors' Committee. The Plaintiffs-Objectors argue that the bar orders entail the district court's assertion of jurisdiction to settle their claims pending in other judicial proceedings. They are mistaken. It is necessarily the case that where a district court appoints a receiver to coordinate interests in a troubled entity, that entity's creditors will have hypothetical claims they could independently bring but for the receivership: the receivership exists precisely to gather such interests in the service of equity and aggregate recovery. While claims seeking recovery for Ponzi-scheme harms can sound in tort, contract, or numerous other causes of action, the harms arise from a singular scheme, not isolated acts that is, from a composite of conduct by numerous conspirators taken over years, collectively establishing and perpetuating the fraud. The Stanford Ponzi scheme, and Willis and BMB's participation in it, increased the receivership entities' liabilities and misappropriated its funds, such that those liabilities could not be satisfied; SIB CD investors were saddled with the corresponding lost investments. The Stanford International Bank, and hence SIB CD investors attracted by the promise of high returns plus comprehensive insurance were injured by these alleged Ponzi players who created, amplified, and maintained the fraud. The Plaintiffs-Objectors seek to recover assets directly from Willis and BMB to compensate lost investments in the Stanford entities; the receiver and Investors' Committee attempt to recover from the same defendants to satisfy corresponding liabilities to investors through the receivership's distribution process. To the point, the claims of the Plaintiffs-Objectors' and those of the receiver and Investors' Committee seek recovery to address the same harms sustained by the same conduct in the same Ponzi scheme. By entering the bar orders, the district court recognizes the reality that, given the finite resources at issue in this litigation, Stanford's investors must recover Ponzi-scheme losses through the receivership distribution process. The Willis Defendants and BMB contend that the bar orders are preconditions of their respective settlements. The brokers' incentives to settle are reduced likely eliminated if each SIB CD investor retains an option to pursue full recovery in individual satellite litigation. Such resolution is no resolution. And the costs of undermining this settlement are potentially large. The receivership and thus qualifying investor claimants will be deprived of $132 million in settlement proceeds. Continued prosecution of the receiver and Investors' Committee's suit against Willis and BMB could result in the same if not greater recovery, but this is sheer speculation. Further, any potential value of the receiver's ultimate recovery must be reduced by the costs of prolonged litigation over the same assets, not only in the receiver's own action but also in the Plaintiffs-Objectors' myriad satellite suits, into which the receivership is likely to be drawn. Supposing that Willis, an allegedly deep-pocketed defendant, remains able to satisfy any judgment against it, the same cannot be said of BMB: continued litigation would eat away at the limited funds available under its wasting insurance policy. The Court says its decision is consistent with this court's decision in SEC v. Stanford International Bank, Limited. (Lloyds) reviewing bar orders entered by the same receivership court in connection with the Stanford receiver's $65 million settlement with insurance underwriters. While it held that the bar orders improperly enjoined co-insured Stanford officers' non-investment-related suits against the underwriters, the court approved the bar orders relative to investors in Stanford securities, as here. Unlike the co-insured officers, the investors were able to participate in the receivership's distribution process they were afforded a means of filing claims apart from the direct action suit, and many availed themselves of that opportunity. The bar order functioned to channel investors' recovery into the receivership distribution process and did not interfere with or improperly extinguish the investors' rights. In this appeal the Court addresses only the effect of the Willis and BMB bar orders enjoining third-party investors' claims. The receiver initiated suit, negotiated, and settled with the Willis Defendants and BMB while empowered to offer global peace, that is, to deal with potential investor holdouts like the Plaintiffs-Objectors. These holdouts have been content for the receiver to pursue litigation for their benefit, then to participate as receivership claimants, collecting pro rata. Now, however, they ask to jump the queue, come what may to their fellow claimants who remain within the receivership distribution process. At bottom, the Plaintiffs-Objectors seek special treatment: they ask this court to recreate the collective-action problem that Congress sought to eliminate so that they -- and no one else -- can recover in full. The Court says it will not do so. The bar orders -- enjoining these investors' third-party claims fall well within the broad jurisdiction of the district court to protect the receivership res. The exercise of jurisdiction over a receivership is not an exercise of jurisdiction over other judicial proceedings. It rather permits the barring of such proceedings where they would undermine the receivership's operation. The district court has wide discretion to determine the appropriate relief in an equity receivership. Again, the receivership solves a collective-action problem among the Stanford entities' defrauded creditors, all suffering losses in the same Ponzi scheme. It maximizes assets available to them and facilitates an orderly and equitable distribution of those assets. Allowing creditors to circumvent the receivership would dissolve this orderly process circumvention must be foreclosed for the receivership to work. It was no abuse of discretion for the district court to enter the bar orders to effectuate and preserve the coordinating function of the receivership. Under the Anti-Injunction Act, a court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. The district court exercises jurisdiction over the receivership estate. The particular part of that res at issue here is $132 million receivable owed to the receivership, conditioned upon the BMB and Willis bar orders. When in 2009 the district court took the receivership estate into its custody, the res was as much withdrawn from the judicial power of the other courts, as if it had been carried physically into a different territorial sovereignty. The Plaintiffs-Objectors' suits in state court implicate that same res. The formal distinction between the Plaintiffs-Objectors' and the receivers' claims against the brokers arises from the receivership's mediating role, interposed by the district court between the investor-creditors and the assets belonging to the Stanford entities. The receiver sues the brokers on behalf of the Stanford entities so that assets owed to creditors can be distributed to them administratively, through the distribution process rather than through their own piecemeal satellite litigations: any proceeds of the Plaintiffs-Objectors' claim are potential receivership assets, falling squarely within the bounds of the Receivership Order. The bar orders here prevent Florida and Texas state-court proceedings from interfering with the res in custody of the federal district court. The bar orders aided the court's jurisdiction over the receivership entities, which remain in the custody of the court. The bar orders do not violate the Act. The Texas and Florida Plaintiffs-Objectors argue that the Willis bar order deprived them of their property (that is, their claims) without due process and without just compensation. This is a recasting of the jurisdictional argument the Court have rejected. The district court was empowered to bar judicial proceedings not before it to protect the receivership. In so doing, the court afforded the Plaintiffs-Objectors all the process due, notice and opportunity to be heard on the proposed settlement and bar orders an opportunity they seized. All due process has been afforded. The Plaintiffs-Objectors challenge the settlement agreements and bar orders, inferring from the large settlement sums that these are de facto class settlements entered unlawfully without certification of a settlement class. There is a likeness in function between the receivership and a hypothetical certified SIB CD investor class action: both offer means to pursue litigation in an aggregative form. In the former, the court channels recovery through its officer, the receiver, and retains power to bar parallel proceedings that would interfere. In the latter, creditors pursue their entitlements via class representatives under the requirements of Rule 23. But, as Congress authorizes, the district court appointed a receiver and did not certify an investor class. The Willis and BMB settlements bring monies ultimately to be distributed to all SIB CD investor-claimants through the receivership. There was no illicit class settlement, and the bar orders do not offend Rule 23. The Texas Plaintiffs-Objectors argue that the bar orders deny their right to a jury trial, retreading the jurisdictional argument we have addressed. Their argument presumes the Objector-Plaintiffs were otherwise entitled to pursue their independent action in state court unconstrained by the receivership court's bar order. The Court have explained why they have no such entitlement. The right to a jury does not create a right to proceed outside the receivership proceeding. The district court did not abuse its discretion in approving the BMB and Willis settlement agreements. The Texas Plaintiffs-Objectors argue that a far greater recovery was possible, that the settlement was premature, and SIB CD investors could have recovered 100 percent of their investments. This is at best speculative. The settlement was reached after years of investigation and litigation. There was no certainty in the outcome of the Receivership Action. The defendant brokers contested liability and insist they would continue to do so if the settlements are terminated. It remained for the plaintiffs to prove their claims at trial, including proving the brokers' role in the Ponzi scheme. The potential benefits of continued litigation must be discounted by the risk of failing in that proof or in overcoming defenses, together with attendant costs, mindful that to succeed it would not be enough to prove that the brokers aided and abetted. The district court considered tradeoffs the parties faced with the prospect of settlement and found the settlements consistent with interests of both the receivership and the investors. The district court found no evidence of fraud or collusion and did not abuse its discretion in approving the settlements. Accordingly, the Fifth Circuit affirms the district court's approval of the BMB and Willis settlements and its entering of the corresponding bar orders enjoining the Plaintiffs-Objectors' third-party investor claims. A full-text copy of the Fifth Circuit's July 22, 2019 Opinion is available at https://tinyurl.com/yyhtbndr from Leagle.com. Judith R. Blakeway -- judith.blakeway@clarkhillstrasburger.com -- for Appellee. Judith R. Blakeway, for Interested Party-Appellee. T. Ray Guy -- ray.guy@weil.com -- for Appellee. T. Ray Guy, for Interested Party-Appellee. Peter Michael Jung -- michael.jung@ clarkhillstrasburger.com -- for Appellee. Christopher John King, for Plaintiff-Appellant. Jonathan D. Polkes -- jonathan.polkes@weil.com -- for Appellee. Jonathan D. Polkes, for Interested Party-Appellee. Curtis Bradley Miner, 255 Alhambra Circle, PH. Coral Gables, FL 33134. for Plaintiff-Appellant. Matthew John McGowan, 1107 1/2 Tacoma Ave S, Tacoma, WA, 98402, for Movant-Appellant. STEMGENEX MEDICAL: Court Certifies 2 Subclasses in Moorer Suit -------------------------------------------------------------- In the case, Selena Moorer, Plaintiff, v. Stemgenex Medical Group, Inc., et al. Defendants, Case No. 16-cv-2816-AJB-NLS (S.D. Cal.), Judge Anthony J. Battaglia of the U.S. District Court for the Southern District of California (i) granted the Plaintiffs' motion to certify the class; and (ii) denied both the Defendants' motions to strike the reports of Dr. David Stewart, Dr. Michael Kamins and Dr. Eliot Hartstone, with some caveats. On Aug. 22, 2014, the Plaintiffs filed a putative class action complaint against the Defendants in the Superior Court of California, County of San Diego, alleging violations of California's Unfair Competition Law ("UCL"), California's False Advertising Law ("FAL"), California's Consumer Legal Remedies Act ("CLRA"), California's Health and Safety Code section 24170 ("Human Experimentation"), 18 U.S.C. section 1961, et seq., ("RICO"), Fraud, Negligent Misrepresentation, and Unjust Enrichment. On Sept. 15, 2016, the Plaintiffs filed a First Amended Complaint, ("FAC"), to include a claim for damages under the CLRA. The FAC contained similar factual allegations, but added Plaintiff Stephen Ginsberg to the action and alleged an additional claim for Financial Elder Abuse. On Nov. 16, 2016, the Defendants removed the action to the Court pursuant to 28 U.S.C. Section 1441(a) and (b). The operative complaint alleges that the Defendants engage in a nationwide scheme to wrongfully market and sell stem cell treatments to consumers who are often "sick or disabled, suffering from incurable diseases and a dearth of hope." Specifically, the Plaintiffs allege that the Defendants advertise their "stem cell treatments" to consumers via their website and make misrepresentations that the treatments "effectively treat a multitude of diseases," when in actuality, the Defendants maintain "no reasonable basis" to make these claims. The Plaintiffs further allege that the Defendants represent to consumers that "100% of its prior consumers are satisfied with its service," while omitting material information about its services, including consumer dissatisfaction and complaints regarding the ineffectiveness of the treatments. These statements were based upon "Patient Satisfaction Ratings" or "PSR" collected by the Defendant. The Plaintiffs seek to represent a class of all consumers nationwide who purchased Stem Cell Treatments from StemGenex between Dec. 8, 2013 and present, and a subclass of all members of the nationwide class aged 65 years or older at the time of purchase. The Plaintiffs allege that each customer was exposed to the Defendants' website, relied on the Defendants' "false and misleading marketing" of the Stem Cell Treatments, and have been harmed as a result. Specifically, Plaintiff Moorer, suffering from lupus, and Plaintiff Gardener, suffering from diabetes, each relied upon the customer satisfaction statistics posted on the StemGenex website in deciding to purchase the Defendants' Stem Cell Treatments. The Plaintiffs allege that each Plaintiff paid a total of $14,900 for the treatment, did not benefit from the treatment, and informed Defendants of their dissatisfaction. Further, they allege they would not have paid for the Stem Cell Treatment had they known that the statistics on the StemGenex website regarding consumer satisfaction were false, and that StemGenex had no reasonable basis for its marketing claim that the Stem Cell Treatments were effective to treat diseases as advertised. The Defendants seek to strike two of the Plaintiffs' expert reports from Dr. Stewart and Drs. Kamins and Hartstone. The Defendants seek to strike Dr. Stewart's report, which attempts to analyze what effect the PSR impacted a consumer's decision to purchase the treatment. Essentially, Dr. Stewart's report relates to the proposed class's damages. The Defendants argue the report ought to be disqualified because Dr. Stewart is unqualified and touches on efficacy—a charge that has been excluded from the Plaintiffs' complaint. Judge Battaglia finds both the Defendants' objections without merit and thus denies the motion. However, the he directs the Plaintiffs to change the survey question in accordance with his directions. The Defendants also argue the report proposed by Dr. Kamins and Dr. Hartstone must be stricken. This report establishes that the Pie Chart is material and misleading to consumers. The proposed survey seeks to establish that the Overall Experience Pie Chart was material to consumers in choosing to consider stem cell treatment. The Defendants assert that the survey design did not adhere to necessary quality controls or have a proper control mechanism necessary for a causal survey. The Judge will grant in part and deny in part the Defendants' request. To the extent the report is to be used to show causation, the the Judge grants the motion. However, to the extent that the Plaintiffs will use the report to show whether or not the pie chart was material in considering stem cell therapy, he denies the motion. The simple fact is that the Defendants put out an overly vague statement and created confusion where different interpretations might lie. The Defendants cannot then turn around and use that confusion as a shield. As to the Plaintiffs' move to certify their class under Federal Rule of Civil Procedure 23, they seek to certify a class defined as all persons residing in the United States who purchased Stem Cell Therapy Treatment from StemGenex for at least $14,900 between Dec. 8, 2013 and the time of trial, after (a) visiting www.stemgenex.com when the website contained Patient Satisfaction Ratings and/or (b) receiving an email from StemGenex with Patient Satisfaction Ratings. The Judge finds that the Plantiffs have met the Rule 23(a) and Rule 23(b) requirements. Based on the foregoing, Judge Battaglia denied the Defendants' motions to strike, albeit with caveats and change. He granted the Plaintiffs' motion for class certification. He certified the following Rule 23(b)(3) classes: a. Subclass A: All persons residing in the United States who purchased Stem Cell Therapy Treatment from StemGenex for at least $14,900 between Dec. 8, 2013 and April 2016, after (a) visiting www.stemgenex.com when the website contained Patient Satisfaction Ratings and/or (b) receiving an email from StemGenex with Patient Satisfaction Ratings. b. Subclass B: All persons residing in the United States who purchased Stem Cell Therapy Treatment from StemGenex for at least $14,900 between April 2016 and March 2017, or when the information was no longer on the website or being used in emails or advertising materials, after (a) visiting www.stemgenex.com when the website contained Patient Satisfaction Ratings and/or (b) receiving an email from StemGenex with Patient Satisfaction Ratings. Plaintiffs Jennifer Brewer and Alexandra Gardner are appointed as the class representatives of Subclass A, as they both received treatment prior to April 2016. The Plaintiffs are to submit a class representative(s) for Subclass B for the Court's approval within three weeks of the Order. Under Fed. R. Civ. P. 23(g), the Plaintiffs' attorneys are appointed as the class counsel. Collectively, they are Elizabeth Banham, Janice Mulligan, Brian Findley, Harvey Berger, Timothy Williams, and Stephanie Reynolds. Under Fed. R. Civ. P. 23(c)(2)(B), the parties will meet and confer, and submit to the Court an agreed-upon form of class notice that will advise individual members of, among other things, the nature of the action, the relief sought, the right of class members to intervene or opt out, and the binding effect of a class judgment on members under Rule 23(c)(3). The parties will also jointly submit a plan for dissemination of the proposed notice. The proposed notice and plan of dissemination will be filed with the Court by Aug. 1, 2019. A full-text copy of the Court's June 25, 2019 Order is available at https://is.gd/0Ov1To from Leagle.com. Selena Moorer, individually and on behalf of all others similarly situated, Jennifer Brewer & Rebecca King, Plaintiffs, represented by Brian Keith Findley, Mulligan & Banham, Elizabeth A. Banham, Mulligan, Banham & Findley, Harvey C. Berger, Berger, Williams & Reynolds, LLP, Janice F. Mulligan, Mulligan, Banham & Findley, Stephanie Reynolds -- reynolds@popeberger.com -- Berger, Williams & Reynolds, LLP & Timothy Garr Williams -- williams@popeberger.com -- Berger, Williams & Reynolds, LLP. Stemgenex Medical Group, Inc., a California Corporation, Stemgenex, Inc., a California Corporation, Stem Cell Research Centre, Inc., a California Corporation & Rita Alexander, an individual, Defendants, represented by Annette Farnaes, Rosenberg Shpall & Associates APLC, Malte L.L. Farnaes, Farnaes & Lucio, APC & Christina Marie Lucio -- christina@jameshawkinsaplc.com -- Farnaes & Lucio, APC. Andre P. Lallande, D.O., an individual, Defendant, represented by Clark Ray Hudson, Neil Dymott Frank McCabe & Hudson, Jonathan Reza Ehtessabian, Neil Dymott Frank McFall Trexler McCabe & Hudson, APLC, Nicole T. Melvani, Neil Dymott Frank McCabe & Hudson, APLC & Malte L.L. Farnaes, Farnaes & Lucio, APC. STUDENT LOANS: Garcia TCPA Suit Asserts Invasion of Privacy ----------------------------------------------------------- NICOLE GARCIA, individually and on behalf of all others similarly situated v. STUDENT LOANS OF AMERICA LLC, a California Limited Liability Company, Case No. 1:19-cv-23033-XXXX (S.D. Fla., July 22, 2019), arises from the Defendant's alleged illegal actions in negligently or willfully contacting the Plaintiff on her cellular telephone, in violation of the Telephone Consumer Protection Act, thereby, invading her privacy. Student Loans of America LLC is a California Limited Liability Company and citizen of the state of California, listing its principal address in San Diego, California. Student Loans is in the business of selling fee based application assistance services to consumers who apply for various student loan repayment programs, such as income-driven repayment plans. Student Loans promotes and markets its services, in part, by calling wireless phone users.[BN] The Plaintiff is represented by: Seth M. Lehrman, Esq. EDWARDS POTTINGER LLC 425 North Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Telephone: (954) 524-2820 Facsimile: (954) 524-2822 E-mail: seth@epllc.com TECH RABBIT: Zarrabian Remanded to California State Court --------------------------------------------------------- In the case, SAHAND ZARRABIAN, individually and on behalf of all others similarly situated, Plaintiff, v. TECH RABBIT, LLC; and DOES 1-100, inclusive, Defendants, Case No. 2:18-cv-10648-ODW (JCx) (C.D. Cal.), Judge Otis D. Wright of the U.S. District Court for the Central District of California granted Zarrabian's Motion to Remand, and remanded the action to the Superior Court of California, County of Los Angeles. The Plaintiff brings nine causes of action based on various state law claims against the Defendant arising from a data breach of the Defendant's website that resulted in consumers' private information being disclosed to unauthorized third parties. As a result of the Defendant's alleged action/inaction, the Plaintiff seeks a number of equitable reliefs including appropriate methods and policies with respect to consumer data collection, storage, and safety. On Dec. 26, 2018, the Defendant removed the action to federal court based on alleged diversity jurisdiction. It invokes diversity as the basis of the Court's subject matter jurisdiction. To satisfy the jurisdictional threshold, the Defendant argues that Plaintiff's prayer for equitable relief requiring the Defendant to utilize appropriate methods and policies with respect to consumer data collection, storage, and safety results in costs in excess of the jurisdictional minimum. Judge Wright finds that based on the allegations in the Class Action Complaint, the jurisdictional minimum has not been met. At most, the Class Action Complaint alleges that the amount in controversy is over $25,000 to meet the superior court's unlimited jurisdiction requirement. The Defendant has not met its burden to prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. In its Notice of Removal, the Defendant, without support, asserts that it would cost $300,000 to $500,000 to adopt banking-grade security standards. It is unclear in the Defendant's Notice of Removal how it arrived at that figure, but nonetheless, the estimate appears to be based on speculation as it states that it cannot ascertain, what, precisely Plaintiff Zarrabian supposes to be equitable relief compelling Tech Rabbit to utilize appropriate methods and policies and assumes the statement to require "banking-grade security." This estimation is highly speculative and not sufficient to invoke diversity jurisdiction. Through its Motion, the Plaintiff argues that the Defendant failed to meet its burden of proof by a preponderance of the evidence that the amount in controversy exceeds $75,000. As such, the Defendant had another opportunity, through its Opposition, to establish that the amount in controversy exceeded $75,000. Again, the Defendant failed to do so. In light of the standard of construing the removal statute against removal and the record before the Court, the Defendant has not made a sufficient showing to invoke this Court's jurisdiction. Judge Wright therefore remanded the action to the Superior Court of California, County of Los Angeles, Case No. 18STCV01352, 111 North Hill Street, Los Angeles, California 90012. As such, the Motion to Dismiss is denied as moot. The Clerk of the Court will close the case. A full-text copy of the Court's June 25, 2019 Order is available at https://is.gd/h9mjnj from Leagle.com. Sahand Zarrabian, individually and on behalf of all others similarly situated, Plaintiff, represented by Ebby Shahrokh Bakhtiar -- esb@lb-lawyers.com -- Livingston Bakhtiar, Keith David Griffin, Girardi Keese & Thomas Vincent Girardi, Girardi Keese. Tech Rabbit, LLC, a New Jersey Limited Liability Company, Defendant, represented by Christian S. Molnar -- cmolnar@arendsenlaw.com --Arendsen Cane Molnar LLP. UNITED AIRLINES: Seeks 9th Circuit Review of Ruling in Brown Suit ----------------------------------------------------------------- Defendant United Airlines, Inc., filed an appeal from a Court ruling in the lawsuit styled Ella Brown v. United Airlines, Inc., Case No. 3:19-cv-00537-MMA-JLB, in the U.S. District Court for the Southern District of California, San Diego. The appellate case is captioned as Ella Brown v. United Airlines, Inc., Case No. 19-80094, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiff-Respondent ELLA BROWN, an individual, on behalf of herself and on behalf of all persons similarly situated, is represented by: Norman B. Blumenthal, Esq. Aparajit Bhowmik, Esq. BLUMENTHAL, NORDREHAUG & BHOWMIK 2255 Calle Clara La Jolla, CA 92037 Telephone: (858) 551-1223 Facsimile: (858) 551-1232 E-mail: norm@bamlawca.com aj@bamlawlj.com Defendant-Petitioner UNITED AIRLINES, INC., a Corporation, is represented by: Adam P. KohSweeney, Esq. O'MELVENY & MYERS LLP Two Embarcadero Center, 28th Floor San Francisco, CA 94111 Telephone: (415) 984-8700 E-mail: akohsweeney@omm.com UNITED COLLECTION: Israel Files FDCPA Suit in E.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against United Collection Bureau Inc. The case is styled as Amram Israel individually and on behalf of all others similarly situated, Plaintiff v. United Collection Bureau Inc, LVNV Funding LLC, Defendants, Case No. 1:19-cv-04408 (E.D. N.Y., July 31, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. United Collection Bureau, Inc. provides debt collection services for companies (government, healthcare, utility, financial service, communication, and student markets) and individuals in the United States.[BN] The Plaintiff appears pro se. UNITED STATES: Sweet Moves to Certify Borrowers' Class & Subclass ----------------------------------------------------------------- The Plaintiffs in the lawsuit captioned THERESA SWEET, CHENELLE ARCHIBALD, DANIEL DEEGAN, SAMUEL HOOD, TRESA APODACA, ALICIA DAVIS, and JESSICA JACOBSON on behalf of themselves and all others similarly situated v. ELISABETH DEVOS, in her official capacity as Secretary of the United States Department of Education, And THE UNITED STATES DEPARTMENT OF EDUCATION, Case No. 3:19-cv-03674-WHA (N.D. Cal.), move the Court for an order certifying a class and subclass: * Class: All people who borrowed a Direct Loan or FFEL loan to pay for a program of higher education, who have asserted a borrower defense to repayment to the U.S. Department of Education, whose borrower defense has not been granted or denied on the merits, and who is not a class member in Calvillo Manriquez v. DeVos, No. 17-7106 (N.D. Cal.); and * Subclass: All people who borrowed a Direct Loan or FFEL loan to pay for a program of higher education, who have asserted a borrower defense to the U.S. Department of Education, who meet the prima facie criteria for a loan discharge (as established in Department policies, including but not limited to Department memoranda on "CCI Transferability of Credit" claims, "CCI Guaranteed Employment Claims," and "ITT Guaranteed Employment claims"), and who have not received notice of their borrower defense decision. The Plaintiffs further ask that the Court appoint Theresa Sweet, Chenelle Archibald, Daniel Deegan, Samuel Hood, Tresa Apodaca, Alicia Davis, and Jessica Jacobson as class representatives, and that it appoint their counsel as class counsel. In the alternative, the Plaintiffs ask the Court to hold this motion in abeyance and permit limited discovery in support of the motion for class certification.[CC] The Plaintiffs are represented by: Joseph Jaramillo, Esq. Natalie Lyons, Esq. HOUSING & ECONOMIC RIGHTS ADVOCATES 1814 Franklin Street, Suite 1040 Oakland, CA 94612 Telephone: (510) 271-8443 Facsimile: (510) 868-4521 E-mail: jjaramillo@heraca.org nlyons@heraca.org - and - Eileen M. Connor, Esq. Toby R. Merrill, Esq. Kyra A. Taylor, Esq. Joshua D. Rovenger, Esq. LEGAL SERVICES CENTER OF HARVARD LAW SCHOOL 122 Boylston Street Jamaica Plain, MA 02130 Telephone: (617) 390-3003 Facsimile: (617) 522-0715 E-mail: econnor@law.harvard.edu tmerrill@law.harvard.edu ktaylor@law.harvard.edu jrovenger@law.harvard.edu UNIVERSAL PROTECTION: Underpays Security Officers, Griffith Says ---------------------------------------------------------------- AKEYA GRIFFITH, individually and on behalf of all others similarly situated, Plaintiff v. UNIVERSAL PROTECTION SERVICE, LLC; ALLIED UNIVERSAL SECURITY SERVICES d/b/a ALLIED UNIVERSAL; and [FNU] JONES, Defendants, Case No. 1:19-cv-06983 (S.D.N.Y., July 25, 2019) seeks to recover from the Defendants unpaid wages due to time-shaving, statutory penalties, liquidated damages, attorneys' fees and costs. The Plaintiff Griffith was employed by the Defendants as security officer. Universal Protection Service, LLC provides security solutions. The Company specializes in the design, installation, and monitoring of security and fire monitoring systems. Universal Protection Service serves customers in the States of North Carolina and Massachusetts. [BN] The Plaintiff is represented by: C.K. Lee, Esq. LEE LITIGATION GROUP, PLLC William Brown, Esq. 148 West 24th Street, 8th Floor New York, NY 10011 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 US BANK: Casper Files Suit Over Illegal Fees -------------------------------------------- Theodore Casper, on behalf of himself and all others similarly situated, Plaintiff, v. US Bank, N.A., Defendant, Case No. 19-cv-00850, (N.D. N.Y., July 17, 2019) alleges breach of contract and violations of the New York General Business Law. Casper alleges that U.S. Bank borrowers are charged illegal fees when they try to pay by automated phone system or online. He claims to have paid this fee 44 times. [BN] Plaintiff is represented by: Theodeos Basdekis, Esq. SCARZAFAVA, BASDEKIS & DADEY, PLLC 48 Dietz Street, Suite C Oneonta, NY 13820-5107 Telephone: (607) 432-9341 Fax: (607) 432-1986 Email: tbasdekis@stny.1r.com - and - James L. Kauffman, Esq. BAILEY GLASSER, LLP 1055 Thomas Jefferson Street, NW, Suite 540 Washington, DC 20007 Telephone: (202) 463-2101 Fax: (202) 342-2103 Email: jkauffman@baileyglasser.com VACO TECHNOLOGY: Google's Bid to Junk Bush Wage & Hour Suit OK'd ---------------------------------------------------------------- The United States District Court for the Northern District of California, San Jose Division, issued an Order granting in part Defendant's Motion to Dismiss in the case captioned CHRISTIANA BUSH, Plaintiff, v. VACO TECHNOLOGY SERVICES, LLC., et al., Defendants. Case No. 17-cv-05605-BLF. (N.D. Cal.). In her Second Amended Complaint (SAC), the Plaintiff alleged that VTS staffed her at Google in Google's Expedition Team as an Expedition Team Lead and that she was the victim of several wage and hour violations by both Defendants while in that position. She brought labor law claims on behalf of herself and several putative classes against VTS, Google, and several other Vaco entities. Google moves to dismiss the Plaintiff's Vaco Class and sub-classes, as well as all references in the TAC to equitable tolling. LEGAL STANDARD Motion to Dismiss A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted tests the legal sufficiency of a claim. When determining whether a claim has been stated, the Court accepts as true all well-pled factual allegations and construes them in the light most favorable to the plaintiff. However, the Court need not "accept as true allegations that contradict matters properly subject to judicial notice or allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. Tolling Law In 1974, the Supreme Court in American Pipe held that the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action. In that case, a class action was filed just before the statute of limitations expired, and then the trial court declined to certify the class. Eight days after the denial of certification, class members sought to intervene in the action to assert the same claims as the class would have asserted. The Supreme Court tolled the statute of limitations for those class members, holding that the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status. In so holding, the Supreme Court noted that the purpose of statutory limitation periods is to ensure essential fairness to defendants by barring a plaintiff who has slept on his rights by not putting the defendants on notice of the claims against them early enough for the defendants to marshal fresh evidence and witnesses. This purpose is satisfied, the Supreme Court held, when a named plaintiff who is found to be representative of a class commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment. Under this law, the Court finds that equitable tolling is not appropriate in this case. As a reminder, Plaintiff only references equitable tolling in two places in the TAC: (1) explicitly in her individual FLSA claim; and (2) implicitly in her class allegations, and thus in each of her class claims, by defining the class period in terms of the Trujillo action. She does not expressly allege tolling as to her state law individual claims. As to the FLSA claim, Plaintiff concedes by not arguing otherwise) that American Pipe bar her class claim. American Pipe expressly tolls individuals' successive claims asserted previously in a putative class action. As to the state law claims, Plaintiff does not plead equitable tolling for her individual state law claims. She pleads it only in the definition of the classes. If she had pled tolling for her individual claims, American Pipe tolling would apply. However, American Pipe tolling does not apply to the class claims. Several facts weigh against allowing equitable tolling here, each of which indicates that it would prejudice Defendants to allow equitable tolling. First, the class definitions in the cases do not overlap. Trujillo brought claims on behalf of a Vaco Class that are no longer in this case because the Court has substantially narrowed them. Though Google may have been on notice that Vaco employees working at Google were the focus of the Trujillo action, the number of claimants in that case and the range of jobs at issue were drastically more numerous than remain in this case. Likewise, this case has and had in previous iterations of the complaint broader class allegations, in that it involves a Google Expedition Class that the Trujillo Action did not include. At the very least then, the Google Expedition Class could not be tolled. Second, the claims brought in each action are not the same. Though some claims overlap, and they are all wage and hour violations, several claims do not overlap. The substantial identity of successive claims was a key motivating factor in Hatfield and the cases on which it relies. Denying equitable tolling when neither the parties nor the claims overlaps comports with Hatfield's guidance to look to American Pipe, even if the types of tolling are not identical. American Pipe emphasized that the defendant was on notice of the substantive claims being brought against them and also of the number and generic identities of the potential plaintiffs who may participate in the judgment. Third, and finally, Plaintiff filed her claims in this case before the Trujillo Action ended. Not only does this reinforce that the claims and parties at stake differ, but also it is an anomaly in the tolling jurisprudence. How Plaintiff's state-law claims here can be tolled by an action that was still ongoing at the time she filed those claims here is a mystery. But more importantly, it shows that Defendants could not have been on notice that Plaintiff's claims would be tolled based on Trujillo, and thus Defendants would be prejudiced to allow such tolling. It also indicates that Plaintiff is not acting reasonably in seeking to toll her claims. Given that she cannot toll her claims, it is likewise inequitable to allow tolling of even the narrow overlap between Trujillo and this case: the narrowed three-job Vaco Class for the handful of claims asserted both here and in Trujillo. Accordingly, Google's motion is granted without leave to amend with respect to tolling. A full-text copy of the District Court's July 22, 2019 Order is available at https://tinyurl.com/yyher32p from Leagle.com. Christiana Bush, Plaintiff, represented by Chaim Shaun Setareh -- shaun@setarehlaw.com -- Setareh Law Group & Thomas Alistair Segal -- thomas@setarehlaw.com -- Setareh Law Group. Vaco Technology Services, LLC, a Tennessee limited liability company, Defendant, represented by Alexandria Marie Witte -- awitte@fordharrison.com -- Ford & Harrison LLP & Daniel B. Chammas -- dchammas@fordharrison.com -- Ford & Harrison LLP. Google, LLC, a Delaware corporation, Defendant, represented by Zachary P. Hutton -- zachhutton@paulhastings.com -- Paul Hastings LLP, Paul Andrew Holton -- paulholton@paulhastings.com -- Paul Hastings LLP & William Tucker Page -- rickkirkbride@paulhastings.com -- Paul Hastings LLP. VITA-MIX CORP: $41K in Costs Awarded in Linneman Suit ----------------------------------------------------- In the case, Vicki Linneman, et al., Plaintiffs, v. Vita-Mix Corporation, et al., Defendants, Case No. 1:15-cv-748 (S.D. Ohio), Judge Susan J. Dlott of the U.S. District Court for the Southern District of Ohio, Western Division, granted in part the Class Counsel's Motion for Attorneys' Fees, Costs, and Class Representative Service Awards. The consumer class action was filed on Nov. 19, 2015. The Plaintiffs alleged that Vitamix2 blenders were defective because a seal in the container deposited tiny black polytetrafluoroethylene ("PTFE") flecks into the blended food and drink. They filed a First Amended Class Action Complaint on Feb. 26, 2016, seeking certification of a nationwide class of purchasers of Vitamix blenders and asserting the following claims: (1) breach of express warranty; (2) breach of implied warranty of merchantability; (3) negligent design, engineering, and manufacture; (4) fraud and fraudulent concealment; (5) unjust enrichment; (6) breach of contract; and (7) violation of the Ohio Consumer Sales Practices Act. In April 2016, the Defendants filed a motion for partial dismissal of the action as well as an answer with a jury demand. While the dismissal motion was pending, the parties began settlement negotiations and attended a settlement conference before U.S. District Court Judge Michael R. Barrett on Aug. 3, 2016. Although no settlement was reached, ongoing negotiations continued. The parties met for an additional conference with the Hon. Michael R. Barrett on Nov. 30, 2016, at which the parties negotiated a Memorandum of Understanding of substantive terms for a settlement. The parties spent the early part of 2017 negotiating the details of a Class Action Settlement Agreement and Release. However, as set forth in the Settlement Agreement, the parties did not reach an agreement on the amount of attorneys' fess and expenses Vita-Mix would pay to the class counsel, except that the parties agreed the class counsel is entitled to an award of attorneys' fees and expenses and that the Defendants have a right to object to and contest a fee application. In September 2017, the Plaintiffs filed an amended motion for preliminary approval of the Class Action Settlement. On May 3, 2018, the Court entered an Order Granting Final Approval of Class Action Settlement, but reserved the issue of attorneys' fees, costs, and service awards for a separate ruling. The matter is before the Court on the Class Counsel's Motion for Attorneys' Fees, Costs, and Class Representative Service Awards. The Plaintiffs request approval of $7,188,846.25 in attorneys' fees, $41,194.77 in expenses, and $3,000 in service awards for each of the two named Plaintiffs. Although Vita-Mix does not object to expenses or service awards, they strongly oppose the request for attorneys' fees. Although Judge Dlott has established applicable rates, she is not in a position to compute the final lodestar in the case because the attorney time is subject to revision and objections. The parties will be required to submit a final lodestar calculation for her after all objections to billing records have been resolved. The Judge has reviewed the documentation regarding expenses and finds them to be reasonable and related to the case. Further, the Defendants do not object to payment of $41,194.77 in expenses. The Judge is satisfied that each Plaintiff contributed meaningfully to the case and an award of a $3,000 to each is in no way a "bounty." Furthermore, the service awards are not taken from a common fund but paid separately by the Defendants irrespective of any settlement benefits. She finds that the service awards appropriately incentivize active, effective, and meaningful participation in class action litigation, which is necessary to move the case forward and, in the case, reach a meaningful settlement. For these reasons, she approves the two awards. Finally, having considered the named Plaintiffs' time investment in the case, the Judge finds that two small service awards are not bounties but a meaningful way to compensate these individuals for their contributions to the case. The objections to approval of the settlement on the basis that they objected to attorneys' fees are overruled. For these reasons, Judge Dlott granted in part the Class Counsel's Motion for Attorneys' Fees, Costs, and Class Representative Service Awards. She granted the request for expenses and service awards. Although she has ruled on aspects of the request for attorneys' fees, the request remains pending, subject to the protocol described. To reiterate, within 14 days of entry of the Order, the Class Counsel will provide modified billing records to the Defendants for their review. Within 14 days of the Class Counsel's submission to the Defendants, the Defendants must submit an updated list of objections (if necessary) to te Class Counsel. Within 14 days of circulating updated objections, the Class Counsel and the Defendants must meet and confer in person to attempt to resolve all remaining objections without Court intervention. Within 14 days of the meet-and-confer, the parties must file a joint statement of all objections as well as a joint submission of the Class Counsel's time entries. If any redacted entries remain, the Class Counsel must file a redacted version with any remaining privileged entries with a privilege log. If necessary, the Court will review the remaining objections and set a date for a hearing during which it will rule on the remaining objections. In addition, the Defendants' Motion to Receive Expert Testimony is granted. The Judge has also received the parties' Joint Request for a Status Conference in light of the conclusion of the validation process. She granted the request. An in-person status conference is set for July 18, 2019 at 10:00 a.m. in chambers. A full-text copy of the Court's June 25, 2019 Order is available at https://is.gd/JAV6mT from Leagle.com. Kamala Bennett, Objector, represented by Simina Vourlis -- svourlis@vourlislaw.com -- The Law Offices of Simina Vourlis. Franklin DeJulius & Jon Lorenzo, Objectors, represented by Edward W. Cochran. Avagail Short, Objector, pro se. Vicki A Linneman, On behalf of themselves and those similarly situated & Obadiah N Ritchey, On behalf of themselves and those similarly situated, Plaintiffs, represented by Andrew Biller -abiller@msdlegal.com -- Markovits, Stock & DeMarco, LLC, Christopher P. Finney -- chris@finneylawfirm.com -- Finney Law Firm, LLC, Jeffrey Scott Goldenberg -- jgoldenberg@gs-legal.com -- Goldenberg Schneider, LPA, Justin Charles Walker -- justin@finneylawfirm.com -- Finney Law Firm, LLC, Paul M. De Marco -- pdemarco@msdlegal.com -- Markovits, Stock & DeMarco, LLC, Terence Richard Coates -- tcoates@msdlegal.com -- Markovits, Stock & DeMarco, LLC, Christopher D. Stock -- cstock@msdlegal.com -- Markovits, Stock & DeMarco LLC & Wilbert Benjamin Markovits -- bmarkovits@msdlegal.com -- Markovits, Stock & DeMarco LLC. Vita-Mix Corporation, Vita-Mix Management Corporation & Vita-Mix Manufacturing Corporation, Defendants, represented by Carolyn Ann Taggart -- ctaggart@porterwright.com -- Porter Wright Morris & Arthur, LLP, J. Philip Calabrese -- pcalabrese@porterwright.com -- Porter Wright Morris & Arthur LLP, Tracey L. Turnbull -- tturnbull@porterwright.com -- Porter Wright Morris & Arthur LLP, Ana P. Crawford -- acrawford@porterwright.com -- Porter Wright Morris & Arthur, Caroline Gentry -- cgentry@porterwright.com -- Porter Wright Morris & Arthur & Ryan Lewis Graham , Porter -- rgraham@porterwright.com -- Wright, Morris & Arthur. WALGREEN PHARMACY: Epstein Labor Suit Removed to C.D. Cal. ---------------------------------------------------------- Christina Epstein, individually, and on behalf of all others similarly, Plaintiff, v. Walgreen Pharmacy Services Midwest, LLC, Walgreen Co. and Does 1 through 50, inclusive, and Does 1 through 100, inclusive, Defendants, Case No. RIC1903150 filed on May 31, 2019, in California Superior Court, was removed to U.S. District Court for the Central District of California on July 18, 2019, under Case No. 19-cv-01323. Epstein seeks redress for Defendants' failure to provide meal periods, rest periods, minimum wages, overtime, complete and accurate wage statements, reimbursement of business-related expenses and resulting from unfair business practices, waiting time penalties for unpaid wages due upon termination and for violation of the California Labor Code, California Business and Professions Code, including declaratory relief, damages, penalties, equitable relief, costs and attorneys' fees.[BN] Walgreen Pharmacy is represented by: Allison C. Eckstrom, Esq. Christopher J. Archibald, Esq. Karina Lo, Esq. BRYAN CAVE LEIGHTON PAISNER LLP 3161 Michelson Drive, Suite 1500 Irvine, CA 92612-4414 Telephone: (949) 223-7000 Facsimile: (949) 223-7100 Email: allison.eckstrom@bclplaw.com christopher.archibald@bclplaw.com karina.lo@bclplaw.com WYETH: Denial of Browning's Claims in Diet Drugs Suit Affirmed -------------------------------------------------------------- In the case, IN RE: DIET DRUGS (PHENTERMINE/FENFLURAMINE/DEXFENFLURAMINE) PRODUCTS LIABILITY LITIGATION. Debra K. Browning and Rick E. Browning, Appellants, Case No. 18-2978 (3d Cir.), Judge Paul Matey of the U.S. Court of Appeals for the Third Circuit affirmed the District Court's Aug. 7, 2018 order denying Debra K. Browning's claim for benefits under the Diet Drugs Nationwide Class Action Settlement Agreement. In 2000, Wyeth, the successor in interest to America Home Products, settled a class action related to certain diet drugs. Under the continuing supervision of the District Court, the AHP Settlement Trust administers and reviews claims by the class members to determine their qualification to participate in the settlement. The class settlement agreement uses matrices that assess factors such as age, length of illness, and medical severity, to determine the amount each claimant may recover from the Trust. The Settlement Agreement requires that each claim for these "Matrix" benefits be supported by a reasonable medical basis. So claims submitted to the Trust must come with a physician's attestation. In 2002, the District Court ordered the Trust to audit all claims for medical reasonableness. The next year, the District Court, with the consent of the parties, approved new "Audit Rules" for the review of claims submitted to the Trust. The Audit Rules now guide the Trust's scrutiny of the medical basis for a successful settlement claim and underlie the issues in the appeal. Browning submitted her claim for benefits in November 2015 with the attestation of her physician Richard DiNardo. Citing an echocardiogram dated Aug. 5, 2015, Dr. DiNardo diagnosed Browning as suffering from moderate mitral regurgitation. Under the applicable Matrix, this diagnosis qualified Browning for "Level II" benefits equaling $604,808. Following the Audit Rules, the Trust forwarded the claim for review to Zuyue Wang, a cardiologist retained by the Trust. Dr. Wang reviewed the echocardiogram and other studies, reports, and materials submitted by Browning and concluded that there was no reasonable medical basis for Dr. DiNardo's finding that Browning exhibited moderate mitral regurgitation. This alternate conclusion was significant, because Level II benefits for mitral valve damage require at least moderate mitral regurgitation, as well as one of the five complicating factors listed in the Settlement Agreement. Under the Settlement Agreement, moderate mitral regurgitation has an objective definition and exists only where the regurgitant jet area ("RJA") in any apical view is equal to or greater than 20% of the left atrial area ("LAA"). Dr. Wang's reading of Browning's 2015 echocardiogram found an RJA/LAA of 18%, below the required 20% ratio threshold. Based on this diagnosis, the Trust denied Browning's claim. Browning, backed by Dr. DiNardo, challenged the denial of her claim, arguing that her echocardiogram showed a reasonable medical basis for a diagnosis of moderate mitral regurgitation. Dr. DiNardo stood by his reading of the August 2015 echocardiogram as showing "mitral regurgitation near the border between mild and moderate mitral valve regurgitation." And Dr. DiNardo noted that Browning complained of worsening chest pain and heart palpitations, consistent with moderate mitral valve regurgitation. Although not required to do so by the Audit Rules, the Trust forwarded Browning's case back to Dr. Wang for a second review. Dr. Wang confirmed her original measurements of the RJA/LAA ratio and again found no reasonable medical basis for a diagnosis of moderate mitral regurgitation. She also dismissed Dr. DiNardo's references to Browning's other symptoms as "not indicative of moderate mitral regurgitation. Browning disputed this second review, and the Trust applied to the supervising District Court for an order to show cause requiring Browning to demonstrate her entitlement to benefits. The District Court issued the order and referred the matter to a Special Master. Both parties submitted their documents from the earlier reviews to the Special Master. Additional medical disputes followed. The Special Master forwarded the record and the technical advisor's report to the District Court for review. The District Court considered it all, and ultimately credited the findings of both Dr. Vigilante and Dr. Wang. Finding that Browning failed to meet her burden of establishing a reasonable medical basis, the District Court affirmed the Trust's denial of her claim. Browning timely appealed. Jugde Matey begins with the District Court's conclusion that Browning failed to show a "reasonable medical basis" for her alleged condition. He finds that (i) because Browning did not show the required RJA/LAA ratio, the District Court did not abuse its discretion by not considering her other symptoms; and (ii) the District Court correctly concluded that adopting Browning's argument would allow a claimant to recover Matrix Benefits with an RJA/LAA ratio that does not meet the definition under the Settlement Agreement and would render meaningless this critical provision of the Settlement Agreement. Browning also claims error in the decision to exclude Dr. McLean's second affidavit. The Judge finds that the Trust's reply to Browning's submission to the Special Master questioned Dr. McLean's findings, and Browning sought permission to file both a surreply and another affidavit from Dr. McLean. Browning argued that the Trust misconstrued Dr. McLean's affidavit, warranting rebuttal. The Special Master accepted that claim as good cause and allowed her to reframe his testimony in the most favorable light in a surreply. But the Special Master declined to allow a new affidavit from Dr. McLean, a decision logically connected to Browning's desire to correct, rather than supplement, the closed record. That decision is not an abuse of discretion. For all these reasons, Jugde Matey affirmed the order of the District Court. A full-text copy of the Court's June 25, 2019 Opinion is available at https://is.gd/cRC4Eh from Leagle.com. XPO LOGISTIC: Sept. 4 Hearing on Kramer Deal Prelim Approval Bid ---------------------------------------------------------------- In the case, KEVIN KRAMER on behalf of himself, all others similarly situated, and on behalf of the general public, Plaintiffs, v. XPO LOGISTICS, INC.; and DOES 1-100, Defendants. HECTOR IBANEZ on behalf of himself, all others similarly situated, and on behalf of the general public Plaintiffs, v. XPO LAST MILE, INC.; and DOES 1-100, Defendants, Case No. 3:16-cv-07039-WHO, Consolidated with No. 3:17-cv-04009-JSC (N.D. Cal.), Judge William H. Orrick of the U.S. District Court for the Northern District of California continued the hearing on the Plaintiff's Motion for Preliminary Approval of Class Action Settlement to Sept. 4, 2019 at 2:00 p.m. as stipulated by the parties. The Motion for Preliminary Approval must be filed by July 31, 2019. A full-text copy of the Court's June 25, 2019 Order is available at https://is.gd/FXNPgb from Leagle.com. Kevin Kramer, Plaintiff, represented by David Thomas Mara -- dmara@maralawfirm.com -- Mara Law Firm, PC, Jamie Kathryn Serb -- jserb@maralawfirm.com -- Mara Law Firm, PC, William David Turley, Mara Law Firm, PC & Katharine McCall -- kmccall@kmtg.com -- The Turley Law Firm, APLC. Hector Ibanez, individually and on behalf of others similarly situated, Plaintiff, represented by David Thomas Mara, Mara Law Firm, PC, Matthew Roland Bainer, The Bainer Law Firm & Jamie Kathryn Serb, Mara Law Firm, PC. XPO Logistics, Inc., Defendant, represented by Adam Lewis Lounsbury -- Adam.Lounsbury@jacksonlewis.com -- Jackson Lewis, PC, pro hac vice, Fraser Angus McAlpine -- Fraser.McAlpine@jacksonlewis.com -- Jackson Lewis P.C. & Ronald John Holland, II -- rjholland@mwe.com -- McDermott Will & Emery LLP. XPO Last Mile Inc., a Georgia corporation, Defendant, represented by Allyson Suzanne Ascher, Jackson Lewis P.C., David Scott Durham, McDermott Will & Emery, Fraser Angus McAlpine, Jackson Lewis P.C., Lauren Ashley Ziegler, DLA Piper LLC, Robert Irving Lockwood, Pacific Employment Law LLP & Ronald John Holland, II, McDermott Will & Emery LLP. ********* 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. 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