/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190814.mbx C L A S S A C T I O N R E P O R T E R Wednesday, August 14, 2019, Vol. 21, No. 162 Headlines 3M CO: Continues to Defend PFAS Related Class Suit in NJ 3M COMPANY: Drago Sues Over Defective Earplugs ABERCROMBIE & FITCH: Removes Shaw Case to C.D. California ADVANCED DRAINAGE: Court Denies Bid to Reconsider Wyche Dismissal ALLEGHENY COUNTY, PA: Russo Seeks to Certify Class Action AMAZON.COM: Knipe Suit Transferred to N.D. California ANADARKO PETROLEUM: Faces Thompson Class Action ANTHEM LIFE: Court Allows Protective Order in Yost APEX MIDSTREAM: Santifer Seeks Overtime Wages for Workers APPLE INC: Hid Device Defects & Battery Issues, Naylor et al. Say ARC OF FAYETTE COUNTY: Certification of Collective Action Sought ARK FINANCIAL: Barry Law Sues over Unsolicited Fax Messages ASV HOLDINGS: Kent Files Suit Over Yanmar Merger Deal AUTOPARTSPROS LLC: Underpays Drivers, Alvarez Suit Alleges BANK OF AMERICA: Sharp Sues over Alleged Improper Overdraft Fees BEAVER DAM COMMUNITY: Hansen Seeks Unpaid Overtime Wages, Damages BET INFORMATION: Has Made Unsolicited Calls, Caldwell Suit Says BIG PICTURE: 4th Cir. Flips Denial of Bid to Dismiss Williams Suit BLOOMBERG LP: Data Analysts File Suit Over Unpaid Overtime Back pay BOEING COMPANY: Pilot G Seeks Indemnity over Opportunity Losses BOUCHERIE LLC: Gabilly Seeks Return of Tip Credit, Unpaid Wages BRIXMOR PROPERTY: $19.5MM Settlement Balance Released from Escrow BROCK BEAUTY: Morgan Files ADA Class Action CALIFORNIA: Court Dismisses J. Austin's Class Claims CANNTRUST HOLDINGS: Jones Sues Over Share Price Drop CAPITAL ONE BANK: Labajo Sues Over Data Breach CAPITAL ONE: Francis Sues Over Failure to Properly Secure PII CAPITAL ONE: Haque Sues Over Failure to Protect Personal Info CAPITAL ONE: Tadrous Sues over Data Breach CARBONITE INC: Luna Suit Hits Share Price Drop CARDINAL HEALTH: Louisiana Sheriffs' Fund Hits Share Price Drop CARGILL INC: Court Narrows Claims in Tavares Labor Suit CARRINGTON MORTGAGE: Court Dismisses MFDCPA Claims in Miller Suit CELLULAR SALES OF KNOXVILLE: Seeks Arbitration of Deardorff Case CENIKOR FOUNDATION: Williams Suit Transferred to S.D. Texas CHEERLEADERS GENTLEMEN'S: Exotic Dancer Sues Over Wages CONOCOPHILLIPS: Duffy Sues Over Unpaid Overtime Wages CORELOGIC RENTAL: Court OKs Class Certification in Feliciano CREDITREPAIR.COM INC: Has Made Unsolicited Calls, Forrest Alleges CURLKIT LLC: Has Made Unsolicited Calls, Addo Suit Claims DAVID NOLAN GALLERY: Picon Sues Over Blind-Inaccessible Website DEL TACO: Discovery Ongoing in Former Calif. Employee's Suit DHALIWAL LABS: Perez et al Sue over Collection of Biometric Data DOORDASH INC: Faces Arkin Suit over Delivery Tip Policy EAGLE BANCORP: Glancy Prongay Files Securities Fraud Suit EAGLE BANCORP: Kahn Swick Files Securities Fraud Suit EAGLE BANCORP: Kessler Topaz Files Securities Class Action EAGLE BANCORP: Kirby McInerney Files Securities Fraud Suit ECIG DISTRIBUTORS: Has Made Unsolicited Calls, Gallion Alleges ENTREVOICE VIRTUAL: Bid for Class Certification Denied EPIC GAMES: R.A. Suit transferred to E.D. North Carolina FELIX ENERGY: Evans Seeks Unpaid Overtime Wages, Damages FIGS INC: Torres Files Class Suit in California GASTRO BAR: Rios Seeks Unpaid Wages for Food Service Workers GEO GROUP: Underpays Security Personnel, Azpeitia Suit Alleges GLOCK INC: Melian Sues Over Defective Handguns GRENNING GALLERY: Picon Asserts Violation under Disabilities Act HELIX ENERGY: McKnight Sues Over Unpaid Overtime Wages HOME DEPOT: Moshtagh Sues Over Unpaid Regular, Overtime Wages HOUND DOGS TOWING: Muncy Sues Over Unpaid Wages HYUNDAI MOTOR: Court Narrows Claims in Defective Powertrain Suit IDEANOMICS INC: Howard G. Smith Files Securities Fraud Suit IDEANOMICS INC: Pomerantz Files Securities Class Action Lawsuit INDOCHINO APPAREL: Freeman Sues Over Deceptive Business Practices JOHNSON & JOHNSON: 1,500 Suits Filed Hip Resurfacing System JOHNSON & JOHNSON: Agreement in XARELTO(R) Suit Finalized JOHNSON & JOHNSON: AWP Suits in Illinois and New Jersey Ongoing JOHNSON & JOHNSON: Continues to Defend INVOKANA(R) Related Suits JOHNSON & JOHNSON: Suits Over Ethicon Pelvic Mesh Devices Ongoing JOHNSON & JOHNSON: Talc-Related Class Suit Ongoing in NJ JOHNSON & JOHNSON: XARELTO Sales Class Suit in Louisiana Ongoing KIA MOTORS: Baldwin et al Sue over Defective Airbags LIFESHARE BLOOD: Court Narrows Claims in Trisler FLSA Suit LITTLE CAESAR: Court Dismisses Ogden Antitrust Suit LOBBY VENTURES: Morgan Asserts Violation under Disabilities Act LOS ANGELES, CA: Customers Want $67MM Overcharging Deal Tossed LYFT INC: More Rape Victims Join Class Action in SLO Court MACY'S CREDIT: Guardino Suit Asserts TCPA Violation MADDIES MAYHEM: Sanchez Seeks Overtime Wages for Service Staff MCDERMOTT INT'L: Class Cert. Bid in Chicago Bridge Suit Pending MCDERMOTT INT'L: Curti and Stremcha Class Suits Dismissed MCDERMOTT INT'L: Lead Plaintiff Appointed in Consolidated Suit MCDERMOTT INT'L: Tentative Settlement Reached in Cantrell Suit MDL 2472: Warner Chilcott Appeals Cert. Order in Loestrin MDL MDL 2492: Hutcherson v. NCAA over Health Issues Consolidated MJ ENTERPRISES: McDaniel Sues Over Unpaid Overtime Wages MUTH CAPITAL: Fabricant Suit Asserts TCPA Violation MYLAN NV: Bid to Dismiss MYL Litigation Recovery Suit Pending MYLAN NV: Class Cert. in EpiPen(R) Auto-Injector Suit Still Pending MYLAN NV: Israeli Securities Suit Still Stayed MYLAN NV: Valsartan-Related Class Suit in New Jersey Ongoing NETFLIX INC: Faces Class Action, Sept. 20 Lead Plaintiff Deadline NETFLIX INC: Schall Investigating Claims on Behalf of Investors NEW BALANCE: $1.4MM Class Settlement in Dashnaw Suit Has Final OK NEW JERSEY: Ct. Denies Gittens Inmate's Bid to Maintain Class Suit NEW ORIENTAL: Bid to Dismiss Amended Chan Securities Suit Granted OMNI FAMILY: Removes Ower Suit to Eastern District of California PERFORMANCE TRANSPORT: Sonia Seeks Overtime Wages for Workers PETES TOWING: Nelson Seeks Unpaid Minimum, Overtime Wages PETROLEO BRASILIERO: Court Denies Cornell's Sect 1782 Discovery Bid PREMERA BLUE: $74MM Settlement in Data Breach Suit Has Prelim OK PROGRESSIVE SELECT: Clearview Suit Moved to M.D. Florida QUICK CHANGE: Tindol Seeks Overtime Wages for Technicians RESEARCH AMERICA: Byer Files Damasco Bid for Class Certification RESEARCH AMERICA: Has Made Unsolicited Calls, Byer Clinic Says RUE21 INC: Removes Avila Suit to Eastern District of California SAFECO INSURANCE: Signor Suit Moved to S.D. Florida SHEARD-LOMAN: Miranda Sues Over Unpaid Overtime Wages SIRIUS XM: Sued Over 'Bait and Switch' Advertising Methods STACKIN INC: Maddux Sues Over Unsolicited Text Messages STATE FARM: Dismissal of L. Daniels Suit Reversed TATE & KIRLIN: Key Files Class Suit Under FDPCA THRIFTY PAYLESS: Cal. Reverses Certification Denial in D. Noel Suit UCLA: Fails to Protect Women from Heaps' Sexual Misconducts VECTOR STRUCTURAL: Osorio Sues Over Unpaid Minimum, Overtime Wages WELLPATH LLC: Has Made Unsolicited Calls, Barnett Suit Alleges WELLS FARGO: Bid to Defer Ruling on Bid to Certify Class Granted ZUORA INC: Schall Law Files Securities Class Action Lawsuit ********* 3M CO: Continues to Defend PFAS Related Class Suit in NJ -------------------------------------------------------- 3M Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 26, 2019, for the quarterly period ended June 30, 2019, that the company continues to defend a putative PFAS related class action suit in New Jersey in connection to the DuPont "Chambers Works" plant. In New Jersey, 3M is defending one putative class action in federal court that relates to the DuPont "Chambers Works" plant. Plaintiffs allege that PFAS compounds from the plant have contaminated private wells for drinking water. 3M Company operates as a technology company worldwide. The company's Industrial segment offers tapes, abrasives, adhesives, ceramics, sealants, specialty materials, purification products, closure systems, acoustic systems products, automotive components, abrasion-resistant films, and paint finishing and detailing products. The company was founded in 1902 and is headquartered in St. Paul, Minnesota. 3M COMPANY: Drago Sues Over Defective Earplugs ---------------------------------------------- MICHAEL DRAGO, on behalf of himself and all others similarly situated, Plaintiff, v. 3M COMPANY, and AEARO TECHNOLOGIES, LLC, Defendants, Case No. 1:19-cv-11663-FDS (D. Mass., Aug. 2, 2019) is an action on behalf of Plaintiff and all other similarly situated individuals against Defendants to recover damages for personal injuries and to enjoin the Defendants' unfair, deceptive and unlawful practices. Plaintiff alleges that Defendants made false statements to the United States Government regarding its dangerously defective dual-ended Combat Arms earplugs. These false statements lead to Defendants selling Combat Arms earplugs to the U.S. military for more than a decade. The subject dual-ended Combat Arms earplugs were standard issue in certain branches of the U.S. military between 2003 and 2015. The Defendants falsely promised the Combat Arms earplugs would protect soldiers' ears from dangerous impulse noises, despite internal testing which revealed that such promises were false. Because of the defects, thousands of soldiers have been exposed to and/or suffered significant hearing loss and tinnitus. The Defendants statements and practices were nothing short of a continuing fraud which endangered the health and fitness of Drago and other U.S. service men and women that lasted more than a decade, says the complaint. Plaintiff Drago was a retired Army sergeant of the United States National Guard In January of 2011. 3M Company was in the business of manufacturing, sale and distribution of consumer goods throughout the Commonwealth of Massachusetts.[BN] The Plaintiff is represented by: Kevin J. McCullough, Esq. Michael C. Forrest, Esq. David J. Relethford, Esq. Forrest, LaMothe, Mazow, McCullough, Yasi & Yasi, P.C. 2 Salem Green, Suite 2 Salem, MA 01970 Phone: (617) 231-7829 Fax: (877) 599-8890 Email: kmccullough@forrestlamothe.com mforrest@forrestlamothe.com drelethford@forrestlamothe.com ABERCROMBIE & FITCH: Removes Shaw Case to C.D. California --------------------------------------------------------- Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc. and Hollister Co. removed the case captioned as JASMAINE SHAW, the Plaintiff, vs. ABERCROMBIE & FITCH CO., an Ohio Corporation, ABERCROMBIE & FITCH STORES, INC., an Ohio Corporation; HOLLISTER CO., an Ohio Corporation, and DOES 1-50, inclusive, Case No. 2:19-cv-06642 (Filed May 8, 2019), was removed from the Superior Court of the State of California, County of Orange, to the United States District Court for the Central District of California on July 31. 2019. The Central District of California Court Clerk assigned Case No. 2:19-cv-06642 to the proceeding. The complaint asserts that Defendants failed to pay wages including overtime, failed to provide meal periods, failed to provide rest periods as required by the as required by the California Labor Code.[BN] Attorneys for the Defendants are: Emily T. Patajo, Esq. Rachael Lavi, Esq. Cassidy C. Veal, Esq. LITTLER MENDELSON, P.C. 2049 Century Park East, 5th Floor Los Angeles, CA 90067.3107 Telephone: 310 553 0308 Facsimile: 310 553 5583 E-mail: epatajo@littler.com rlavi@littler.com cveal@littler.com ADVANCED DRAINAGE: Court Denies Bid to Reconsider Wyche Dismissal ----------------------------------------------------------------- In the case, CHRISTOPHER WYCHE, individually and on behalf of all others similarly situated, Plaintiff, v. ADVANCED DRAINAGE SYSTEMS, INC., JOSEPH A. CHLAPATY, and MARK B. STURGEON, Defendants, Case No. 15 Civ. 5955 (KPF) (S.D. N.Y.), Judge Katherine Polk Failla of the U.S. District Court for the Southern District of New York denied the Plaintiff's motion for reconsideration under Rule 60(b)(2). The Plaintiff brought a class action lawsuit on behalf of purchasers of securities issued by ADS during the period from July 25, 2014, through March 29, 2016. Broadly, he alleged that the Defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, in financial statements issued in conjunction with the Company's Initial Public Offering and during the months thereafter. The Court found that Plaintiff had failed adequately to allege that the Defendants acted with scienter, an element of both the Section 10(b) and Rule 10b-5 claims. The Plaintiff's Section 20(a) claim was also dismissed in light of his failure to plead a primary violation under Section 10(b) or Rule 10b-5. Thus, the Court dismissed the Plaintiff's class action lawsuit with prejudice on March 10, 2017. The Plaintiff filed a notice of appeal on March 13, 2017. The Second Circuit affirmed the dismissal by summary order issued on Oct. 13, 2017. Thereafter, the Plaintiff filed a motion for panel rehearing and, in the alternative, for rehearing en banc. The motion was denied by the Circuit by order dated Nov. 28, 2017. Approximately one week later, the Second Circuit issued the mandate returning the case to the Court on Dec. 7, 2017. In July 2018, the Securities and Exchange Commission entered a cease-and-desist order against Defendants ADS and Sturgeon. The SEC Order included a findings of fact section, in which the SEC made multiple findings regarding Sturgeon's conduct at ADS that led the SEC to conclude that Sturgeon had "willfully violated" the federal securities laws. ADS and Sturgeon neither admitted nor denied the findings contained within the SEC Order. Four months after publication of the SEC Order, on Nov. 27, 2018, the Plaintiff filed a motion for reconsideration under Federal Rule of Civil Procedure 60(b)(2) and for leave to file a second amended complaint under Rule 15(a). The Defendants filed a joint memorandum of law in opposition on Dec. 28, 2018. The Plaintiff filed his reply on Jan. 8, 2019. The Plaintiff claims that the SEC Order contains new facts that could not have been discovered until the Order was made public. According to him, these facts directly support his allegations that the Defendants acted with scienter. Had he known these facts at the time the Amended Complaint was filed, the Plaintiff says, he could have alleged with sufficient particularity that the Defendants acted with scienter, allowing the suit to survive Defendants' motion to dismiss. The Plaintiff thus requests Rule 60(b)(2) relief from the Court's grant of the motion to dismiss, and leave to file a second amended complaint. Judge Failla holds that she need not decide whether the evidence the Plaintiff identifies would merit Rule 60(b)(2) relief, because the Plaintiff's motion is untimely. To review, Rule 60(b)(2) relief is only available if the motion was (i) filed within one year of the entry of final judgment it seeks to have reconsidered; and (ii) filed within a "reasonable time." As set forth in the remainder of her Opinion, the Judge concludes that Plaintiff's motion satisfies neither prong. For the reasons outlined, she denied the Plaintiff's motion for reconsideration under Rule 60(b)(2). The Clerk of Court is directed to terminate the motion pending at docket entry 68. A full-text copy of the Court's July 3, 2019 Opinion and Order is available at https://is.gd/bEQq77 from Leagle.com. Christopher Wyche, on behalf of all others similarly situated, Plaintiff, represented by Jacob A. Goldberg -- jgoldberg@rosenlegal.com -- The Rosen Law Firm, P.A., Keith Robert, The Rosen Law Firm, P.A. & Phillip C. Kim, The Rosen Law Firm P.A. Christopher Wyche, individually, Plaintiff, represented by Phillip C. Kim, The Rosen Law Firm P.A. Advanced Drainage Systems, Inc., Defendant, represented by Victor Genecin -- victor.genecin@squiresanders.com -- Squire Patton Boggs (US) L.L.P., David W. Alexander, Squire Patton Boggs (US) L.L.P., Joseph C. Weinstein, Squire Patton Boggs (US) LLP & Sean Logan McGrane, Squire Patton Boggs (US) LLP. Joseph A Chlapaty, Defendant, represented by Robert Allen Scher -- rscher@foley.com -- Foley & Lardner, LLP & Bryan B. House, Foley & Lardner. Mark B Sturgeon, Defendant, represented by Peter Joseph Pizzi -- ppizzi@walsh.law -- Walsh Pizzi O'Reilly Falanga LLP, Roger P. Sugarman, Kegler, Brown, Hill Ritter & Selina Miriam Ellis, Walsh Pizzi O'Reilly Falanga LLP. ALLEGHENY COUNTY, PA: Russo Seeks to Certify Class Action --------------------------------------------------------- In the class action lawsuit styled as LEO RUSSO, both individually and on behalf of a class of others similarly situated, the Plaintiff, vs. THE COUNTY OF ALLEGHENY, the Defendant, Case No. 2:18-cv-00097-MRH (W.D. Pa.), the Plaintiff filed a motion for preliminary injunction and to certify the case as a class action pursuant to federal rule of Civil Procedure 23. Allegheny County is a county in the southwest of the U.S. state of Pennsylvania.[CC] Attorneys for the Plaintiff are: D. Aaron Rihn, Esq. ROBERT PEIRCE & ASSOCIATES, P.C. 707 Grant Street, Suite 125 Pittsburgh, PA 15219-1918 Telephone: 412-281-7229 Facsimile: 412-281-4229 E-mail: arihn@peircelaw.com - and - Elmer Robert Keach, III, Esq. LAW OFFICES OF ELMER ROBERT KEACH, III One Pine West Plaza, Suite 109 Albany, NY 12205 Telephone: 518 434 1718 E-mail: Bobkeach@keachlawfirm.com - and - Nicholas Migliaccio, Esq. MIGLIACCIO & RATHOD, LLP 412 H Street, NE, Suite 302 Washington, DC 20002 Telephone: 202 470 3520 E-mail: Nmigliaccio@classlawdc.com AMAZON.COM: Knipe Suit Transferred to N.D. California ----------------------------------------------------- PERSIS KNIPE, an individual, on behalf of herself, on behalf of all persons similarly situated, the Plaintiff, vs. AMAZON.COM, INC., a Corporation; AMAZON LOGISTICS, INC., a Corporation; and DOES 1 through 50, inclusive, the Defendants, Case No. 3:17-cv-01889 (Filed Oct 17, 2017), was transferred from the U.S. District Court for the Southern District of California, to U.S. District Court for Northern District of California (San Francisco) on July 31, 2019. The Northern District of California Court Clerk assigned Case No. 3:19-cv-04376-JCS to the proceeding. The case is assigned to the Hon. Joseph C. Spero. The lawsuit is brought on behalf of Delivery Drivers who worked for Defendants in California and were classified as independent contractors, in order to collect the wages due them as employees of Defendant, the cost of the employer's share of payments to the federal and state governments for income taxes, social security taxes, medicare insurance, unemployment insurance and payments for workers' compensation insurance, plus penalties and interest.[BN] Attorneys for the Plaintiff are: Norman B. Blumenthal, Esq. Ricardo Ramon Ehmann, Esq. Aparajit Bhowmik, Esq. Ruchira Piya Mukherjee, Esq. Victoria Bree Rivapalacio, Esq. Blumenthal Nordrehaug Bhowmik De Blouw LLP 2255 Calle Clara La Jolla, CA 92037 Telephone: (858) 551-1223 x127 Facsimile: (858) 551-1232 E-mail: norm@bamlawlj.com rico@bamlawca.com aj@bamlawlj.com piya@bamlawlj.com victoria@bamlawca.com Attorneys for the Defendants are: Brian D. Fahy, Esq. John Spivey Battenfeld, Esq. Max C Fischer, Esq. Amy Alyssa McGeever, Esq. Andrea Fellion, Esq. Robin Marie Lagorio, Esq. MORGAN LEWIS AND BOCKIUS 300 South Grand Avenue, 22nd Floor Los Angeles, CA 90071 Telephone: (213) 612-2500 Facsimile: (213) 612-2501 E-mail: brian.fahy@morganlewis.com jbattenfeld@morganlewis.com max.fischer@morganlewis.com amy.mcgeever@morganlewis.com andrea.fellion@morganlewis.com robin.lagorio@morganlewis.com - and - Theresa Mak, Esq. GBG LLP 601 Montgomery Street, Suite 1150 San Francisco, CA 94111-4615 Telephone: (415) 603-5000 Facsimile: (415) 840-7210 E-mail: theresamak@gbgllp.com ANADARKO PETROLEUM: Faces Thompson Class Action ----------------------------------------------- Anadarko Petroleum Corporation said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on July 29, 2019, that the company has been named as a defendant in a class action suit entitled, John Thompson v. Anadarko Petroleum Corporation et al. A proposed acquisition of Anadarko Petroleum Corporation ("Anadarko") by Occidental Petroleum Corporation (“Occidental”). Subject to the terms and conditions of the Agreement and Plan of Merger (the "Merger Agreement"), dated as of May 9, 2019, by and among Anadarko, Occidental and Baseball Merger Sub 1, Inc., a wholly owned subsidiary of Occidental ("Merger Sub"), Merger Sub will merge with and into Anadarko (the "Merger"), with Anadarko surviving and continuing as the surviving corporation in the Merger and a wholly owned subsidiary of Occidental. In connection with the Merger Agreement and the transactions contemplated thereby, a putative class action lawsuit was filed on behalf of Anadarko stockholders in the United States District Court for the District of Delaware. The lawsuit is captioned John Thompson v. Anadarko Petroleum Corporation et al., Case 1:19-cv-01368 (filed July 23, 2019). In general, the complaint asserts claims against Anadarko and Anadarko's board of directors, alleging, among other things, that the defendants failed to make adequate disclosures in Anadarko's proxy statement relating to the Merger (in its definitive form, the "Proxy Statement"). Anadarko believes that the allegations in the complaint are without merit. While Anadarko believes that the disclosures set forth in the Proxy Statement comply fully with applicable law, to moot plaintiffs’ disclosure claims, to avoid nuisance, potential expense and delay, and to provide additional information to Anadarko's stockholders, Anadarko has determined to voluntarily supplement the Proxy Statement. A copy of the supplemental disclosure is available at https://urlzs.com/umxrj. Anadarko Petroleum Corporation (Anadarko), incorporated on June 12, 1985, is an independent exploration and production company. The Company is engaged in developing, acquiring, and exploring for oil and natural-gas resources. The company is based in The Woodlands, Texas. ANTHEM LIFE: Court Allows Protective Order in Yost -------------------------------------------------- The United States District Court for the Middle District of Pennsylvania issued a Memorandum Opinion granting in part and denying in part Defendant's Motion for Protective Order in the case captioned ERIC YOST, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. ANTHEM LIFE INSURANCE COMPANY, Defendant. No. 3:16-CV-00079. (M.D. Pa.). The Complaint alleged three counts. In Count I, Plaintiff sought a declaratory judgment that Defendant may not obtain reimbursement, or assert a right of subrogation against the proceeds of personal injury settlements or verdicts, on motor vehicle claims in accordance with Pennsylvania's Motor Vehicle Financial Responsibility Law (MVFRL). Count II of the Complaint asserted a claim for unjust enrichment. In Count III, Plaintiff brought a claim for bad faith. The Defendant states that it seeks a protective order in connection with a series of Fed. R. Civ. P. 30(b)(6) deposition notices issued by the Plaintiff that seek impermissibly to intrude on the attorney-client privilege and constitute impermissible attempts at second corporate representative depositions of the same party on the same topics without good cause or court permission. The Defendant posits that the August 10, 2018, notices are not limited to the subject of Plaintiff's fiduciary duty/conflict of interest claim and seek to revisit the same subject matter that Plaintiff should have explored at the June 14, 2018, deposition, i.e., Defendant's search for, identification of, and production of documents. As required by Rule 7.8(a) of the Middle District of Pennsylvania Rules of Court, Defendant provides a Statement of Questions Involved: 1. Should the Court issue a protective order forbidding Plaintiff from deposing Anthem Life pursuant to the Plan Attorney Notice of Deposition where Topics 1 and 3 of the notice seek to impermissibly invade the attorney-client privilege and where the discovery previously produced demonstrates there were no communications satisfying Topic 2? 2. Should the Court issue a protective order forbidding Plaintiff from deposing Anthem Life pursuant to Topic 5 of the Patton 1 Notice of Deposition to the extent it inquires about Plaintiff's first requests for production of documents?. 3. Should the Court issue a protective order forbidding Plaintiff from deposing Anthem Life pursuant to the Patton 2 Notice of Deposition where the notice seeks to impermissibly re-depose Anthem Life on the same topics that were noted as the subject matter of the June 14, 2018 Rule 30(b)(6) deposition? 4. Should the Court issue a protective order forbidding Plaintiff from deposing Anthem Life pursuant to Topic 1 of the Pruitt Notice of Deposition to the extent it inquires about Paragraphs 11 through 15 of the Declaration of M. Catherine Pruitt? 5. Should the Court issue a protective order forbidding Plaintiff from deposing Anthem Life pursuant to Topic 2 of the Pruitt Notice of Deposition where the topic seeks to impermissibly re-depose Anthem Life on a topic on which Anthem Life was already deposed on June 14, 2018? The Defendant asserts as a preliminary matter that no party should be able to take the deposition of any given deponent more than once pursuant to Rule 30(a)(2)(A)(ii). However, Defendant's agreement to be deposed on the issue of fiduciary duty indicates that leave of court was not required for the deposition to which Defendant agreed. Given that Plaintiff did not counter Defendant's statement of facts, Defendant's agreement to be deposed was limited to fiduciary duty topics. Although Plaintiff did not seek leave of court to depose Plaintiff on any other topic before serving the August 10, 2018, deposition notices, the analysis of the proper scope of Defendant's second deposition does not end with Defendant's agreement to be deposed on fiduciary duty matters for the reasons discussed below. In the course of informal presentation and consideration of discovery matters, by Order of August 16, 2018, the Court directed Defendant to designate a representative or representatives to testify at the noticed depositions. The Court did not limit the subject matter of the deposition(s) or address the topics identified in Plaintiff's August 10, 2018, Notices. The Court directed the parties to address any related dispute by way of formal motion (id. at 4) and Defendant has done so. As noted in State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 254 F.R.D. 227 (E.D. Pa. 2008), leave is not required to conduct a second Rule 30(b)(6) deposition which is ordered by the court. Id. at 235 n.7. Because the Court ordered the deposition(s) now at issue (Doc. 81 at 4-5), in the unique circumstances presented here, Plaintiff has not run afoul of the requirements of Rule 30(a)(2)(A)(ii). The Court will therefore address the questions presented by Defendant. However, the Court need not address whether to issue a protective order forbidding Plaintiff from deposing Anthem Life pursuant to the Patton 2 Notice of Deposition because Plaintiff has withdrawn that Notice of Deposition due to Patton's retirement. Before undertaking consideration of the remaining questions involved, the Court notes that the designations of the remaining August 10, 2018, notices as `Plan Attorney Notice of Deposition, Patton 1 Notice of Deposition and Pruitt' Notice of Deposition do not seek the deposition of specific individuals but leave Defendant to designate a representative. Plan Attorney Notice of Deposition Defendant asserts that it is not properly deposed on any of the topics for testimony identified in the Plan Attorney deposition notice which seeks information regarding the following: 1. Communications or documents regarding the administration of the Plan concerning subrogation shared between the Plan, its administrators, trustees, or other fiduciaries, and any attorney assisting in the administration of the Plan, prior to the outset of the instant litigation. 2. Any and all communications to beneficiaries of the Plan from any attorney assisting in the administration of the Plan concerning subrogation.3. Advice relating to [l]egal compliance, alternatives, or strategy regarding the operation of the plan insured by Anthem Life. Topics 1 and 3 Defendant first argues that topics 1 and 3 seek to invade the attorney client privilege by seeking to discover communications between Defendant's employed attorneys and those involved in the administration of the Plan. Noting that Plaintiff has argued that the fiduciary exception to the attorney-client privilege provides a basis to invade the privilege in the circumstances presented here, Defendant maintains that the Third Circuit Court of Appeals held otherwise in Wachtel v. Health Net, Inc., 482 F.3d 225 (3d Cir. 2007). In considering the scope of the fiduciary duty exception under ERISA, Wachtel first looked at early cases which applied the exception and concluded that the exception might not apply in every fiduciary situation; where it had been found applicable, the ERISA fiduciaries at issue had strong parallels to trustees, were actually trustees, or were plan sponsors. Based on this language and Wachtel's historical analysis, the distinction between trustees, plan sponsors, and plan administrators on the one hand and insurance company fiduciaries such as the defendant in the case on the other is an important one in that Wachtel ultimately decided that the latter was not subject to the fiduciary exception to the attorney client privilege. In drawing a distinction between the two groups, Wachtel noted two significant differences between the groups: the identity of the entity for whom the legal advice is given and the fiduciary's duty of disclosure. Regarding the identity of the client, Wachtel identified four relevant factors: unity of ownership and management, conflicting interests regarding profits, conflicting fiduciary obligations, and payment of counsel with the fiduciary's own funds. Based on consideration of these factors, the Circuit Court concluded that an insurer which sells insurance contracts to ERISA-regulated benefit plans is itself the sole and direct client of counsel retained by the insurer, not the mere representative of client-beneficiaries, and not a joint client with its beneficiaries. The Circuit Court added that if the insurer's counsel were to also represent the beneficiaries who seek to maximize their benefit payments, that counsel would face a direct conflict of interest under any standard of legal ethics. It would be odd indeed if ERISA were to force lawyers into precisely this conflicted role. Within this legal framework, the question of whether Defendant is entitled to invoke the attorney client privilege to preclude Plaintiff from deposing Defendant on topics 1 and 3 in the Plan Attorney Deposition Notice depends on whether Defendant is a plan administrator who would not be exempt from disclosure under Wachtel or an insurer who is the type of ERISA fiduciary to whom the fiduciary exception to the attorney client privilege would not apply. This distinction presents a threshold issue of whether Defendant is the plan administrator rather than a limited-purpose fiduciary. Defendant argues that Wachtel is dispositive and is fatal to Plaintiff's argument that he is entitled to the information sought with the Plan Attorney Deposition Notice under the fiduciary exception. Among his arguments, Plaintiff asserts that distinctions between this case and Wachtel dictate a different result: neither Health Net nor any of its subsidiaries were plan administrators for any of the plaintiffs' benefit plans. Nor did the plaintiff in Wachtel allege that Health Net had breached its fiduciary duty of loyalty it owed to the plaintiff. Evidence shows that the Short Term Disability Plan (Plan) at issue does not designate an administrator or contain a definition of administrator or plan administrator. The definitional section of the plan defines Plan Sponsor as the employer or other organization that has entered into an agreement with Us as outlined in the Policy. Us means the insurer, Anthem Life Insurance Company. With this documentary evidence, the Court concludes that Defendant was not the plan administrator, as that term is statutorily defined for ERISA purposes, for the Plan at issue. Therefore, the Court will proceed with an analysis of the factors set out in Wachtel. As in Wachtel where the defendant had interests larger and distinct from those of its beneficiaries, here Defendant sells insurance to multiple employee benefit plans and, therefore has conflicting fiduciary obligations. Finally, Defendant satisfies the fourth factor which considers whether the insurer pays for legal services using its own assets rather than those of their beneficiaries, because when legal advice is needed regarding benefit determinations under insured plans, Anthem Life pays the cost of that legal service; it is not paid by or back-charged to the benefit plans. Having satisfied these four factors, pursuant to Wachtel, Defendant is itself the sole and direct client of counsel retained by the Defendant. Considering Defendant's status pursuant to the duty of disclosure, Defendant is not the plan administrator or trustee of the Plan at issue or for any of the plans it insures. Although Defendant and its affiliates carry out administrative functions regarding the review of claims and award of benefits as did the defendant in Wachtel, 482 F.3d at 227, those functions do not transform its legal status regarding its duty of disclosure because Defendant does not operate as a trustee. Thus, within the relevant legal framework, although Defendant had fiduciary obligations toward the beneficiaries of the Plan, it did not have a trustee's duty of disclosure toward Plaintiff. Finding no basis to distinguish Wachtel, the Court finds that the fiduciary exception to the attorney client privilege does not apply and Defendant's motion is granted as to topics 1 and 3 of the Plan Attorney Notice of Deposition. With this determination, the Court emphasizes it is not stating that Defendant does not have fiduciary responsibilities to beneficiaries of the Plan. Rather, the Court concludes that Wachtel makes clear that Defendant's fiduciary responsibilities do not compel application of the fiduciary exception where information traditionally consistent with the attorney client privilege is sought. Topic 2 Defendant asserts that Beebe's Declaration shows there are no communications regarding communications to beneficiaries of the Plan from any attorney assisting in the administration of the Plan concerning subrogation and therefore, Defendant should not be required to produce a witness about non-existent communications. Plaintiff does not dispute this assertion in his responsive brief. Beebe provided the following information in his Declaration: between January 1, 2010 and August 23, 2016, he was the only attorney who would have provided the information sought, he would have made a notation regarding any such communication, and he has reviewed claims files and there were no notations of any such discussions. Based on Beebe's Declaration and Plaintiff's lack of response to Defendant's argument, the Court concludes that Plaintiff has been provided a response to his request for the information sought in Topic 2 in that Beebe's declaration establishes that no such information exists. Therefore, pursuant to Rule 26(b)(2)(C), Plaintiff is not entitled to depose Defendant on the matter requested. Having found that Plaintiff is not entitled to depose Defendant on any of the matters identified in the August 10, 2018, Plan Attorney Notice of Deposition, the Court concludes that Defendant Anthem Life Insurance Company's Motion for Protective Order as to this deposition is properly granted. Patton 1 Notice of Deposition Defendant seeks to partially preclude deposition on the matters identified in Topic 5 of what has been identified as the Patton 1Notice of Deposition which requests that Defendant designate a person for oral examination concerning the documents identified in Plaintiff's First Demand for Production of Documents Directed to Defendant' and `Plaintiff's Second Demand for Document. Defendant asserts that the first half of Topic 5 seeks the same discovery as noticed in the original Rule 30(b)(6) notice of deposition for which it produced a witness on June 14, 2018. As relates to the limitation sought regarding deposition concerning Plaintiff's first demand for production of documents, the deposition testimony is to be limited if it is cumulative, duplicative, if Plaintiff had ample opportunity to obtain the information, or if it is outside the scope of Rule 26(b)(1). While it appears that Plaintiff had ample opportunity to obtain information regarding his first demand for production of documents, rather than grant Defendant's motion as to this aspect of Topic 5, the Court will deny the motion and caution Plaintiff that strict adherence to the commands of Rule 26 are expected. Should issues arise during the deposition, the Court will be available to rule on whether Plaintiff is seeking testimony regarding matters outside the scope of that allowed by Rule 26. Pruitt Notice of Deposition For the reasons discussed regarding the Patton 1 Notice of Deposition, the Court will deny Defendant Anthem Life Insurance Company's Motion for Protective Order. The Court does so with the same cautionary notice to Plaintiff and the assurance of the Court's availability to resolve disputed matters at the time of the deposition. As discussed previously, the Court is guided by the fundamental maxim that restrictions on the free exchange of information should be the exception to disclosure of evidence and the broad scope of discovery in general. The procedural history of this case has been a winding road marked by filings and disputes which have hindered the orderly progress of the litigation. By allowing the deposition topics in the Pruitt' Notice of Deposition, the Court seeks to move this case toward a long-overdue resolution with matters relevant to that resolution adequately disclosed. Accordingly, Defendant Anthem Life Insurance Company's Motion for Protective Order will be granted in part and denied in part. The Motion will be granted as to the Plan Attorney Notice of Deposition the Motion will be denied as to the Patton 1 Notice of Deposition and the Pruitt' Notice of Deposition. A full-text copy of the District Court's July 29, 2019 Memorandum Opinion is available at https://tinyurl.com/y3mrda3b from Leagle.com. Eric Yost, individually and on behalf of a class of similarly situated individuals, Plaintiff, represented by Charles Kannebecker, Weinstein Schneider Kannebecker & Lokuta, 104 West High Street, Milford, PA 18337 & James C. Haggerty -- jhaggerty@hgsklawyers.com -- Haggerty, Goldberg, Schleifer & Kupersmith. Anthem Life Insurance Company, Defendant, represented by Dan J. Hofmeister, Jr. -- dhofmeister@reedsmith.com -- Reed Smith LLP, Douglas R. Widin -- dwidin@reedsmith.com -- Reed Smith LLP, John N. Ellison -- jellison@reedsmith.com -- Reed Smith LLP & Miranda A. Jannuzzi -- mjannuzzi@reedsmith.com -- Reed Smith LLP. APEX MIDSTREAM: Santifer Seeks Overtime Wages for Workers --------------------------------------------------------- RICKY SANTIFER, Individually and For Others Similarly Situated, the Plaintiff, vs. APEX MIDSTREAM INSPECTION, LLC, the Defendant, Case No. 5:19-cv-00696-SLP (w.D. Okla, July 31, 2019), seeks to recover unpaid overtime wages and other damages from Defendant under the Fair Labor Standards Act. According to the complaint, Santifer and the Putative Class Members regularly work more than 40 hours a week. But Apex pays these workers a flat amount for each day worked without overtime compensation. Apex never pays Santifer a guaranteed salary. Apex's day rate pay plan violates the overtime requirements of the FLSA. Apex offers next generation services for midstream construction projects.[BN] Attorneys for the Plaintiff are: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Taylor A. Jones, Esq. JOSEPHSON DUNLAP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: 713 352 1100 Facsimile: 713 352 3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com tjones@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: 713 877-8788 Facsimile: 713 877-8065 E-mail: rburch@brucknerburch.com APPLE INC: Hid Device Defects & Battery Issues, Naylor et al. Say ----------------------------------------------------------------- ZOE NAYLOR, HANNAH STRATTON, ERICA DILLARD, KIMBERLY BROWN, GERALD TIANO, RONALD HAWKINS, KENNETH WOOLSEY, FREDRICK CHRISTENSEN, LAUREN LONG, JEANETTE TAYLOR, LAURA CARLO, ROBYN LIPETZ, JAMES KILE, HAYLEY GOLDFELD, AMY NORMAN, TIM MORGAN, SHEMINA GHEEWALLA, and YUICHI MURAKAMI, the Plaintiffs, vs. APPLE INC., the Defendant, Case No. 5:19-cv-04421 (N.D. Cal., July 31, 2019), alleges that Apple designed, manufactured, advertised, promoted, and sold iDevices that it knew contained Defects or Battery Issues, and withheld that information from consumers or purposefully misrepresented the Devices to consumers. The Plaintiffs and all others similarly situated are consumers who purchased, owned, used, or leased one or more of Apple's Devices. The Apple's Devices include Apple iPhone 6, 6s, 6 Plus, 6s Plus, SE, 7, and 7 Plus. In 2017, Apple installed software updates on the Devices to gather additional diagnostic data. Based in part on that diagnostic data, on January 23, 2017, Apple released a software update, known as iOS 10.2.1. Apple told consumers that the update was to fix "bugs" or improve "security" on the Devices and a month later, Apple publicly disclosed that the software update had largely addressed the shutdown problem. Missing from these statements to consumers or to the tech press was the true purpose of the software update -- to conceal a much larger defect than the public knew -- namely, there was a mismatch between the Devices' hardware, including their processing chips and rechargeable lithium-ion batteries, and the ever-increasing demands placed on the Devices via Apple's constantly-updating iOS software platform. This mismatch is referred to as the "Defect(s)." And the software update did not "fix" or "cure" the Defect—it instead concealed it by secretly throttling the Devices' performance to reduce the number of unexpected shutdowns to a more manageable volume. Apple partially "cured" one defect by making another defect more aggressive -- accomplished by violating federal computer fraud laws and a host of various state laws. For 11 months, the secret remained uncovered as Apple continued to hide the whole truth. Apple's throttling did not stop at iOS 10.2.1. On December 2, 2017, another set of throttling code was inserted in iOS 11.2 2 , but Apple again told consumers the update was primarily to fix "bugs" and provide "improvements." Apple did not reveal the Defects, the lawsuit says. Apple Inc. is an American multinational technology company headquartered in Cupertino, California, that designs, develops, and sells consumer electronics, computer software, and online services. It is considered one of the Big Four tech companies along with Amazon, Google, and Facebook.[BN] Attorneys for Zoe Naylor: Rosemary M. Rivas, Esq. Rosanne L. Mah, Esq. LEVI & KORSINSKY, LLP 44 Montgomery Street, Suite 650 San Francisco, CA 94104 Telephone: (415) 373-1671 Facsimile: (415) 484-1294 E-mail: rrivas@zlk.com rmah@zlk.com Attorneys for Jeanette Taylor, Erica Dillard, Kimberly Brown, Robyn Lipetz. Ronald Hawkins, and Amy Norman: Daniel C. Levin, Esq. 510 Walnut Street, Suite 500 Philadelphia, PA 19106-3697 Telephone: (877) 882-1011 Facsimile: (215) 592-4663 Attorneys for Hannah Stratton: James Vlahakis, Esq. SULAIMAN LAW GROUP 2500 South Highland Ave, Suite 200 Lombard, IL 60148 Telephone: (312) 313-1613 Counsel for Shemina Gheewalla are: Kathleen Herkenhoff, Esq. HAEGGQUIST & ECK, LLP 225 Broadway, Suite 2050 San Diego, CA 92101 Telephone: (619) 342-8000 Facsimile: (619) 342-7878 Counsel for Kenneth Woolsey, Laura Carlo, Hayley Goldfeld are: Melissa R. Emert, Esq. STULL STULL & BRODY 6 East 45 th Street New York, NY 10017 Telephone: (954) 341-5561 Facsimile: (954) 341-5531 Counsel for Gerald Tiano are: Joshua Harris Eggnatz, Esq. EGGNATZ PASCUCCI, P.A. 5400 University Drive, Suite 417 Davie, FL 33328 Telephone: 954-889-3359 Facsimile: 954-889-5913 Counsel for James Kile are: Bradford B. Lear, Esq. LEAR & WERTS, LLP 2003 W. Broadway, Ste. 107 Columbia, MO 65203 Telephone: (573) 875-1991 Facsimile: (573) 875-1985 Counsel for Timothy Morgan are: Derek G. Howard, Esq. DEREK G. HOWARD LAW FIRM, INC. 42 Miller Avenue Mill Valley, CA 94941 Telephone: 415 432-7192 Facsimile: 415-524-2419 Counsel for Fredrick Christensen and Lauren Long are: David J. Stone, Esq. BRAGAR EAGEL & SQUIRE, P.C. 885 Third Avenue, Suite 3040 New York, NY 10022 Telephone: 212 308 1704 Counsel for Yuichi Murakami are: Kyle J. McGee, Esq. GRANT & EISENHOFER. PV 123 Justison Street, 7th Floor Wilmington, DE 19801 Telephone: 302 622 7000 ARC OF FAYETTE COUNTY: Certification of Collective Action Sought ---------------------------------------------------------------- In the class action lawsuit styled as JESSE LYNN and BELINDA DARNELL, on behalf of themselves and all similarly situated employees, the Plaintiffs, vs. ARC OF FAYETTE COUNTY and FAYETTE COUNTY BEHAVIORAL HEALTH ADMINISTRATION, the Defendants, Case No. 2:17-cv-00474-MRH-LPL (W.D. Pa., Filed April 23, 2017), the Plaintiffs asks the Court for an order granting their motion for conditional certification of collective action. The Plaintiffs filed the action against ARC alleging that they were owed statutorily required wages under the Fair Labor Standards Act of 1938 and the Pennsylvania Minimum Wage Act All of the putative class members were subject to the same policies concerning unpaid time and unpaid overtime. Moreover, all putative class members were subject to the same unilateral job action on September 12, 2014 at which time the employer declared them to be "independent contractors".[CC] Counsel for the Plaintiffs and Class are: Joseph E. Fieschko, Jr., Esq. 436 Seventh Avenue, Suite 2230 Pittsburgh, PA 15219 Telephone: 412 281-2204 E-mail: joe@fieschko.com - and - John R. Linkosky, Esq. 715 Washington Avenue Carnegie, PA 15106 Telephone: 412-278-1289 E-mail: linklaw@comcast.net ARK FINANCIAL: Barry Law Sues over Unsolicited Fax Messages ----------------------------------------------------------- The Barry Law Office, Ltd, on behalf of itself and all others similarly situated, the Plaintiff, vs. Ark Financial LLC, the Defendant, Case No. 0:19-cv-02037 (D. Minn., July 31, 2019), contends that the Defendant promotes and markets its merchandise, in part, by sending unsolicited fax messages, in violation of the Telephone Consumer Protection Act as amended by the Junk Fax Prevention Act of 2005. Beginning in January 2019 and throughout the month of June 2019, the Defendant repeatedly transmitted, or caused to be transmitted, by telephone facsimile machine unsolicited fax advertisements that were received by Plaintiff. The Defendant willfully and knowingly violated the TCPA by sending these facsimiles, as evidenced by the fact that it utilized caller ID spoofing and continually changed its telephone number information to thwart automated number blocking systems that might attempt to block these Junk Faxes. The Plaintiff had not invited or given permission to Defendant to send the Junk Fax. The Plaintiff does not have an established business relationship with Defendant, the lawsuit says. [BN] Attorney for the Plaintiff is: Thomas J. Lyons, Jr., Esq. CONSUMER JUSTICE CENTER, P.A. 367 Commerce Court Vadnais Heights, MN 55127 Telephone: (651) 770-9707 Facsimile: (651) 704-0907 E-mail: tommy@consumerjusticecenter.com ASV HOLDINGS: Kent Files Suit Over Yanmar Merger Deal ----------------------------------------------------- MICHAEL KENT, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. ASV HOLDINGS, INC., ANDREW M. ROOKE, BRIAN J. HENRY, MICHAEL A. LISI, JOSEPH M. NOWICKI, and DAVID ROONEY, Defendants, Case No. 1:19-cv-01450-UNA (D. Del., Aug. 1, 2019) is an action stemming from a proposed transaction announced on June 27, 2019, pursuant to which ASV Holdings, Inc. ("ASV" or the "Company") will be acquired by Yanmar America Corporation, Osaka Merger Sub, Inc., and Yanmar Co, Ltd. (together, "Yanmar"). On June 26, 2019, ASV's Board of Directors caused the Company to enter into an agreement and plan of merger (the "Merger Agreement") with Yanmar. Pursuant to the terms of the Merger Agreement, ASV's stockholders will receive $7.05 in cash for each share of ASV common stock they own. On July 30, 2019, defendants filed a proxy statement with the United States Securities and Exchange Commission (the "SEC") in connection with the Proposed Transaction, which scheduled a stockholder vote on the Proposed Transaction for September 4, 2019. The complaint alleges that the Proxy Statement omits material information with respect to the Proposed Transaction, which renders the Proxy Statement false and misleading. Accordingly, Plaintiff alleges that the Defendants violated Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 in connection with the Proxy Statement. Plaintiff is the owner of ASV common stock. ASV is a designer and manufacturer of compact construction equipment.[BN] The Plaintiff is represented by: Seth D. Rigrodsky, Esq. Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Phone: (302) 295-5310 Facsimile: (302) 654-7530 Email: sdr@rl-legal.com bdl@rl-legal.com gms@rl-legal.com - and - Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Phone: (484) 324-6800 Facsimile: (484) 631-1305 AUTOPARTSPROS LLC: Underpays Drivers, Alvarez Suit Alleges ---------------------------------------------------------- GUSTAVO ALVAREZ, individually and on behalf of all others similarly situated, Plaintiff v. AUTOPARTSPROS, LLC; GENUINE PARTS COMPANY; and DOES 1 through 10, inclusive, Defendants, Case No. 37-2019-00039872-CU-OE-CTL (Cal. Super., San Diego Cty., July 31, 2019) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff Alvarez was employed by the Defendants as driver. Autopartspros, LLC was founded in 1999. The Company's line of business includes the wholesale distribution of motor vehicle supplies, accessories, tools, and equipment. [BN] The Plaintiff is represented by: Robert Drexler, Esq. Molly DeSario, Esq. Jonathan Lee, Esq. CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 E-mail: Robert.Drexler@CapstoneLawyers.com Molly.DeSario@CapstoneLawyers.com Jonathan.Lee@CapstoneLawyers.com BANK OF AMERICA: Sharp Sues over Alleged Improper Overdraft Fees ---------------------------------------------------------------- MATTHEW J. SHARP, individually and on behalf of all others similarly situated, the Plaintiff, vs. BANK OF AMERICA, N.A.; and BANK OF AMERICA CORPORATION, the Defendants, Case No. 1:19-cv-05223 (N.D. Ill., Aug. 1, 2019), seeks legal and equitable remedies resulting from Bank of America's practices of improperly assessing $35.00 fees to its customers for overdrafts triggered by non-recurring transactions initiated with "decoupled" debit cards issued by Target, Speedway, and numerous other convenience stores, grocery stores, retailers, and other companies nationwide. Since June of 2010, in the Deposit Agreement, Schedule of Fees, and Card Agreement, Bank of America has promised its accountholders that any "non-recurring" transaction initiated with any type of "debit card" is absolutely immune from the assessment of an overdraft fee -- and yet over that same period of time has systematically assessed $35.00 fees to its accountholders for overdrafts triggered by numerous types of "non-recurring" transactions initiated with numerous types of "debit cards." By assessing fees for overdrafts caused by one-time, "non-recurring" transactions initiated with "debit cards," Bank of America breached the Deposit Agreement and Schedule of Fees, the covenant of good faith and fair dealing, and various other legal obligations owed to its accountholders, and unjustly enriched itself, the lawsuit says. For people living paycheck to paycheck, like Plaintiff and other members of the Class, the improper overdraft fees at issue in this case not only damaged them monetarily but have had a serious effect on their everyday lives. On behalf of themselves and the other members of the Class, the Plaintiff brings this action to recover all of the improperly-assessed overdraft fees at issue in this case, and for other legal and equitable remedies, the lawsuit says.[BN] Counsel for the Plaintiff and the Putative Class are: Eugene Y. Turin, Esq. MCGUIRE LAW, P.C. 55 W. Wacker Dr., 9th Fl. Chicago, IL 60601 Telephone: (312) 893-7002 E-mail: eturin@mcgpc.com - and - Frank S. Hedin, Esq. HEDIN HALL, LLP 1395 Brickell Ave, Suite 900 Miami, FL 33131 Telephone: (305) 357-2107 Facsimile: (305) 200-8801 E-mail: fhedin@hedinhall.com - and - Robert Ahdoot, Esq. AHDOOT & WOLFSON, PC E-mail: rahdoot@ahdootwolfson.com 10728 Lindbrook Drive Los Angeles, CA 90024 Telephone: (310) 474-9111 Facsimile: (310) 474-8585 BEAVER DAM COMMUNITY: Hansen Seeks Unpaid Overtime Wages, Damages ----------------------------------------------------------------- KRISTI HANSEN on behalf of herself and all others similarly situated, Plaintiff, v. BEAVER DAM COMMUNITY HOSPITALS, INC., Defendant, Case No. 3:19-cv-00633 (W.D. Wis., Aug. 2, 2019) is a collective and class action brought pursuant to the Fair Labor Standards Act of 1938 ("FLSA"), and Wisconsin's Wage Payment and Collection Laws ("WWPCL") by Plaintiff for purposes of obtaining relief under the FLSA and WWPCL for unpaid overtime wages, unpaid agreed-upon wages, liquidated damages, costs, attorneys' fees, declaratory and/or injunctive relief, and/or any such other relief the Court may deem appropriate. According to the complaint, the Defendant operated (and continues to operate) an unlawful compensation system that deprived and failed to compensate all current and former hourly-paid, non-exempt employees for all hours worked and work performed each workweek, including at an overtime rate of pay for hours worked in excess of 40 in a workweek. Specifically, Defendant: (1) failed to compensate said employees with agree-upon wages, such as monetary "Shift Differentials," at their regular and overtime rates of pay for any and all hours worked and work performed during the workweek; and (2) failed to include all forms of non-discretionary compensation, such as monetary bonuses, commissions, incentives, awards, and/or other rewards, in said employees' regular rates of pay for overtime calculation purposes, says the complaint. Plaintiff was employed by Defendant from approximately the years 2012 to 2016 and was re-hired by Defendant as a Food & Nutrition Aid working in Defendant's Food & Nutrition Department in approximately August 2017. Beaver Dam Community Hospitals, Inc., is a hospital and health care system headquartered in Beaver Dam, Wisconsin that operates primarily within Columbia, Fond du Lac, and Dodge counties in the State of Wisconsin.[BN] The Plaintiff is represented by: James A. Walcheske, Esq. Scott S. Luzi, Esq. WALCHESKE & LUZI, LLC 15850 W. Bluemound Rd., Suite 304 Brookfield, WI 53005 Phone: (262) 780-1953 Fax: (262) 565-6469 Email: jwalcheske@walcheskeluzi.com sluzi@walcheskeluzi.com BET INFORMATION: Has Made Unsolicited Calls, Caldwell Suit Says --------------------------------------------------------------- APRIL CALDWELL, individually and on behalf of all others similarly situated, Plaintiff v. BET INFORMATION SYSTEMS, INC. D/B/A SURVEY.COM, Defendant, Case No. 1:19-cv-11625-ADB (D. Mass., July 29, 2019) seeks to stop the Defendant's practice of making unsolicited calls. The case is assigned to Judge Allison D. Burroughs. BET Information Systems, Inc. offers an online content aggregator. BET Information Systems, Inc. was formerly known as Interaction Media Group, Inc. The company was incorporated in 2006 and is based in Boston, Massachusetts. [BN] The Plaintiff is represented by: Jason Campbell Esq. 250 First Avenue, Unit 602 Charlestown, MA 02129 Telephone: (617) 872-8652 E-mail: jasonrcampbell@ymail.com - and - Avi R. Kaufman, Esq. KAUFMAN P.A. 400 NW 26 th Street Miami, FL 33127 Telephone: (305) 469-5881 E-mail: kaufman@kaufmanpa.com BIG PICTURE: 4th Cir. Flips Denial of Bid to Dismiss Williams Suit ------------------------------------------------------------------ In the case, LULA WILLIAMS; GLORIA TURNAGE; GEORGE HENGLE; DOWIN COFFY; FELIX GILLISON, JR., on behalf of themselves and all individuals similarly situated, Plaintiffs-Appellees, v. BIG PICTURE LOANS, LLC; ASCENSION TECHNOLOGIES, LLC, Defendants-Appellants, and DANIEL GRAVEL; JAMES WILLIAMS, JR.; GERTRUDE McGESHICK; SUSAN McGESHICK; GIIWEGIIZHIGOOKWAY MARTIN; MATT MARTORELLO, Defendants. NATIONAL CONGRESS OF AMERICAN INDIANS; NATIONAL INDIAN GAMING ASSOCIATION; NATIONAL CENTER FOR AMERICAN INDIAN ENTERPRISE DEVELOPMENT; CONFERENCE OF TRIBAL LENDING COMMISSIONERS; ONLINE LENDERS ALLIANCE, Amici Supporting Appellant. DISTRICT OF COLUMBIA; STATE OF CONNECTICUT; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF IOWA; STATE OF MAINE; STATE OF MARYLAND; STATE OF MASSACHUSETTS; STATE OF MINNESOTA; STATE OF NEW JERSEY; STATE OF NEW YORK; STATE OF NORTH CAROLINA; STATE OF PENNSYLVANIA; STATE OF VERMONT; STATE OF VIRGINIA; CENTER FOR RESPONSIBLE LENDING, Amici Supporting Appellee, Case No. 18-1827 (4th Cir.), Judge Roger Gregory of the U.S. Court of Appeals for the Fourth Circuit reversed the district court's order denying the Entities' motion to dismiss for lack of subject matter jurisdiction. The Lac Vieux Desert Band of the Lake Superior Chippewa Indians formed two business entities under tribal law. The Tribe entered the business of online lending in 2011 when it organized Red Rock Lending as a tribally owned LLC. Two members of the Tribe managed Red Rock, and the Tribe was its sole member. Red Rock provided loans to consumers from its offices on the Reservation and was subject to the Tribe's Tribal Financial Services Regulatory Code, which is enforced by the Tribal Financial Services Regulatory Authority. Red Rock contracted with Bellicose, a non-tribal LLC, to provide vendor management services, compliance management assistance, marketing material development, and risk modeling and data analytics development. Matt Martorello, a non-tribe member, was its founder and chief executive officer. Two years after the formation of Red Rock, in February 2013, the New York Department of Financial Services sent cease and desist letters to several lending entities, including Red Rock, accusing them of using the Internet to offer and originate illegal payday loans to New York consumers, in violation of New York's civil and criminal usury laws. The Tribe and entities sought a preliminary injunction based in part on a claim that New York's regulation would infringe on tribal sovereignty. The district court denied the request, however, finding that the entities had not shown a likelihood of success on the merits because their online lending to New York customers constituted off-reservation activity and could thus be properly regulated under New York's anti-usury law. The Second Circuit affirmed this decision in October 2014. Around the same time, the Tribe formed three entities central to this appeal. On Aug. 26, 2014, months before the Second Circuit's decision in Otoe-Missouria Tribe of Indians v. N.Y. State Dep't of Fin. Servs., the Tribe organized Big Picture as an independent tribal lending entity that would ultimately consolidate the activities of its other lending entities, including Red Rock. On Feb. 5, 2015, the Tribe Council formed another entity, Tribal Economic Development Holdings, LLC ("TED"), to operate the Tribe's current and future lending companies. Also on February 5, 2015, the Tribe formed Ascension as a subsidiary of TED for the purpose of engaging in marketing, technological, and vendor services to support the Tribe's lending entities. The Tribe was the sole member of TED, and TED became Big Picture's and Ascension's sole member. Also in early 2015, Martorello and the Tribe agreed on a basic framework for the sale of Bellicose: a seller-financed transaction with non-fixed payments over a seven-year term, with any outstanding amount due to be forgiven at the end of that term. Prior to that time, the Tribe and Martorello had engaged in multiple conversations about the potential sale of Martorello's consulting companies to the Tribe, which would allow the Tribe to engage in online lending without relying on outside vendors for support services. The seller-financier would be Eventide Credit Acquisitions, LLC, a company managed and majority-owned by multiple entities of which Martorello was the president. In short, Eventide would provide a $300 million loan to TED, which TED would then use to purchase Bellicose. After continuing negotiations, the parties reached a final agreement in September 2015, memorializing the terms of the deal in a loan agreement and a promissory note. Under those terms, Big Picture would first make a distribution to TED of its gross revenues. TED would then distribute 2% of those revenues to the Tribe and reinvest an additional 2% of gross revenues in growing Big Picture's loan portfolio. The parties agreed to increase the monthly distribution to the tribe from 2% to 3% in September 2016, and the agreement also provided that the percentage distribution would increase to 6% when half the loan had been repaid. In January 2016, the Tribe completed its purchase of Bellicose and acquired all of Bellicose's data and software. By September 2017, TED had distributed approximately $20 million in loan payments to Eventide and nearly $5 million to the Tribe. TED now oversees both Big Picture and Ascension, and all three entities have their headquarters on the Reservation. Big Picture currently employs 15 tribal members on the Reservation, and Ascension employs 31 individuals, most of whom work outside the Reservation. An Intratribal Servicing Agreement sets forth the relationship between Big Picture and Ascension, with Ascension handling certain day-to-day aspects of the loan operations for Big Picture. Michelle Hazen and James Williams, both Tribe Council members, co-manage all three companies. Hazen is also chief executive officer of Big Picture, but Ascension's president is a non-tribal member. In June 2017, Plaintiffs Williams, Turnage, Hengle, Coffy, and Gillison, Jr. brought a putative class action against Big Picture and Ascension, as well as the individual Defendants who are not parties to the appeal. The Plaintiffs sought declaratory and injunctive relief, alleging that Big Picture charges interest rates on its loans that are substantially-50 times-higher than would be allowed if Virginia law were applicable. Before the district court, the Entities appeared specially to claim that they are entitled to tribal sovereign immunity, submitting documentation in support of their assertion that they are arms of the Tribe. Following jurisdictional discovery, the district court rejected the Entities' invocation of arm-of-the-tribe immunity. In reaching its decision, the district court determined that the driving force behind the formation of Big Picture and Ascension was "to shelter outsiders from the consequences of their otherwise illegal actions." It placed the burden of proof for the immunity issue on the Entities. The Entities timely appealed. Judge Gregory finds that all of the factors weigh in favor of immunity for Big Picture and all but one of the factors weigh in favor of immunity for Ascension. Accordingly, both Entities are entitled to immunity as arms of the Tribe. He reachs this conclusion with due consideration of the underlying policies of tribal sovereign immunity, which include tribal self-governance and tribal economic development as well as protection of "the tribe's monies" and the "promotion of commercial dealings between Indians and non-Indians." The evidence here shows that the Entities have increased the Tribe's general fund, expanded the Tribe's commercial dealings, and subsidized a host of services for the Tribe's members. Accordingly, the Entities have promoted "the Tribe's self-determination through revenue generation and the funding of diversified economic development." A finding of no immunity in the case, even if animated by the intent to protect the Tribe or consumers, would weaken the Tribe's ability to govern itself according to its own laws, become self-sufficient, and develop economic opportunities for its members. Although the Plaintiffs stress the injuries they allegedly face as a result of the Entities' commercial activities, an entity's entitlement to tribal immunity cannot and does not depend on a court's evaluation of the respectability of the business in which a tribe has chosen to engage. Accordingly, the potential merit of the borrowers' claims against Big Picture and Ascension -- and the lack of a remedy for those alleged wrongs -- does not sway the tribal immunity analysis. It is the Congress -- not the courts -- that has the power to abrogate tribal immunity. Because a proper weighing of the factors demonstrates by a preponderance of the evidence that the Entities are indeed arms of the Tribe, Big Picture and Ascension are entitled to tribal sovereign immunity. For the foregoing reasons, Judge Gregory reversed the district court's order, and remanded with instructions to grant the Entities' motion to dismiss for lack of subject matter jurisdiction. A full-text copy of the Court's July 3, 2019 Order is available at https://is.gd/DRZzmL from Leagle.com. ARGUED: William H. Hurd, TROUTMAN SANDERS, LLP, Richmond, Virginia, for Appellants. Matthew W.H. Wessler, GUPTA WESSLER PLLC, Washington, D.C., for Appellees. ON BRIEF: David N. Anthony -- david.anthony@troutmansanders.com -- Timothy J. St. George -- tim.stgeorge@troutmansanders.com -- TROUTMAN SANDERS, LLP, Richmond, Virginia; Justin A. Gray -- jgray@rosettelaw.com -- ROSETTE, LLP, Mattawan, Michigan, for Appellants. Kristi C. Kelly -- kkelly@kellyandcrandall.com -- Andrew Guzzo -- aguzzo@kellyandcrandall.com -- Casey S. Nash -- casey@kellyandcrandall.com -- KELLY & CRANDALL, PLC, Fairfax, Virginia; Alexandria Twinem, GUPTA WESSLER PLLC, Washington, D.C., for Appellees. Pilar M. Thomas LEWIS ROCA ROTHGERBER CHRISTIE LLP, Tucson, Arizona; Derrick Beetso , NATIONAL CONGRESS OF AMERICAN INDIANS, Washington, D.C., for Amici National Congress of American Indians, National Indian Gaming Association, and National Center for American Indian Enterprise Development. Sarah J. Auchterlonie, BROWNSTEIN HYATT FARBER SCHRECK LLP, Denver, Colorado; Brendan Johnson , Sioux Falls, South Dakota, Luke A. Hasskamp , ROBINS KAPLAN LLP, Minneapolis, Minnesota, for Amicus Conference of Tribal Lending Commissioners. Brian Foster , Michael Nonaka , Luis Urbina , COVINGTON & BURLING LLP, Washington, D.C., for Amicus Online Lenders Alliance. William Corbett , Diane M. Standaert , CENTER FOR RESPONSIBLE LENDING, Durham, North Carolina, for Amicus Center for Responsible Lending. Karl A. Racine, Attorney General, Loren L. AliKhan , Solicitor General, Caroline S. Van Zile, Deputy Solicitor General, Richard S. Love, Senior Assistant Solicitor General, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, D.C.; George Jepsen , Attorney General, OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF CONNECTICUT, Hartford, Connecticut; Lisa Madigan, Attorney General, OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF ILLINOIS, Chicago, Illinois; Janet T. Mills, Attorney General, OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF MAINE, Augusta, Maine; Maura Healey, Attorney General, OFFICE OF THE ATTORNEY GENERAL FOR THE COMMONWEALTH OF MASSACHUSETTS, Boston, Massachusetts; Gurbir S. Grewal, Attorney General, OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF NEW JERSEY, Trenton, New Jersey; Joshua H. Stein, Attorney General, OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF NORTH CAROLINA, Raleigh, North Carolina; Thomas J. Donovan, Jr., Attorney General, OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF VERMONT, Montpelier, Vermont; Russell A. Suzuki, Attorney General, OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF HAWAII, Honolulu, Hawaii; Tom Miller, Attorney General, OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF IOWA, Des Moines, Iowa; Brian E. Frosh, Attorney General, OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF MARYLAND, Baltimore, Maryland; Lori Swanson, Attorney General, OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF MINNESOTA, St. Paul, Minnesota; Barbara D. Underwood, Attorney General, OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF NEW YORK, New York, New York; Josh Shapiro, Attorney General, OFFICE OF THE ATTORNEY GENERAL FOR THE COMMONWEALTH OF PENNSYLVANIA, Harrisburg, Pennsylvania; Mark R. Herring, Attorney General, OFFICE OF THE ATTORNEY GENERAL FOR THE COMMONWEALTH OF VIRGINIA, Richmond, Virginia, for Amici District of Columbia, State of Connecticut, State of Hawaii, State of Illinois, State of Iowa, State of Maine, State of Maryland, Commonwealth of Massachusetts, State of Minnesota, State of New Jersey, State of New York, State of North Carolina, Commonwealth of Pennsylvania, State of Vermont, and Commonwealth of Virginia. BLOOMBERG LP: Data Analysts File Suit Over Unpaid Overtime Back pay ------------------------------------------------------------------- Jane Doe 1, and Jane Doe 2, individually and on behalf of all others similarly situated, Plaintiffs, v. BLOOMBERG L.P., Defendant, Case No. 3:19-cv-16262 (D. N.J., Aug. 2, 2019) is a Fair Labor Standards Act ("FLSA") collective action and a Rule 23 class action under the wage and hour laws of New Jersey brought to remedy Defendant's Unlawful refusal to pay overtime at the rate of time and one half to individuals with the job titles of "Data Analyst" and "Data Specialist" (and related title) who worked in Bloomberg's Global Data Division. In January 2019, Bloomberg recognized that Global Data positions were not exempt from federal and state overtime requirements and reclassified most of the positions as overtime non-exempt. However, Bloomberg made no effort to calculate the overtime back pay and liquidated damages due to its employees as a matter of law. By this action, Plaintiffs seek unpaid overtime wages, liquidated damages, costs and attorneys' fees as well as declaratory relief under the FLSA, and New Jersey's wage-and-hour laws. Plaintiffs are and were employed by Defendant to work with data and generally have the position of Data Analyst" or "Data Specialist". Defendant's business is a multinational mass media corporation that provides financial software tools such as analytics and equity trading platforms, data services and news to financial companies and organizations around the world through the Bloomberg Terminal.[BN] The Plaintiff is represented by: Michael Korik, Esq. Law Offices of Charles A. Gruen 382 Broadway, Suite 300 Westwood, NJ 07675 Phone: 201-342-1212 Fax: 201-342-6474 Email: mkorik@gruenlaw.com - and - Dan Getman, Esq. Artemio Guerra, Esq. Getman, Sweenet & Dunn PLLC 260 Fair St. Kingston, NY 12401 Phone: (845) 255-9370 Fax: (845) 255-8649 Email: dgetman@getmansweeney.com BOEING COMPANY: Pilot G Seeks Indemnity over Opportunity Losses --------------------------------------------------------------- PILOT G, individually and on behalf of all others similarly situated, Plaintiff v. THE BOEING COMPANY, Defendant, Case No. 1:19-cv-05177 (N.D. Ill., July 31, 2019) is an action seeking compensation on behalf of the Plaintiff and the Class, qualified to fly the Boeing 737 MAX series of aircraft (the "MAX") as employees of an international airline. According to the complaint, the Plaintiff's personal and professional life was disrupted when BOEING and the Federal Aviation Administration engaged in an unprecedented cover-up of known design flaws of the MAX, which predictably resulted in the crashes of two MAX aircraft and grounding of all MAX aircraft worldwide. The Plaintiff relied on BOEING's representations that the MAX was safe when the Plaintiff chose to qualify to fly the MAX, and the Plaintiff suffered significant lost wages, among other economic and non-economic damages, when the MAX was grounded with no end in sight. Additionally, the Plaintiff suffered severe emotional and mental distress when the Plaintiff was compelled to fly the MAX -- placing the Plaintiff's life and the lives of the crews and passengers in danger -- despite the growing awareness of the dangerous nature of the Maneuvering Characteristics Augmentation System (the "MCAS") and other problems that BOEING had previously concealed or failed to disclose to the Plaintiff. The Plaintiff, individually and on behalf of all those similarly situated, requests entry of a judgment against BOEING in an amount that will make the Plaintiff whole and deter BOEING and other manufacturers from valuing corporate profits over human life. The Boeing Company, together with its subsidiaries, develops, produces, and markets commercial jet aircraft, as well as provides related support services to the commercial airline industry worldwide. The Company also researches, develops, produces, modifies, and supports information, space, and defense systems, including military aircraft, helicopters and space and missile systems. [BN] The Plaintiff is represented by: Patrick M. Jones Sarah M. Beaujour PMJ PLLC 100 South State Street Chicago, IL 60603 Telephone: (312) 255-7976 E-mail: pmj@patjonespllc.com smb@patjonespllc.com - and - Joseph C. Wheeler, Esq. IALPG PTY LTD (T/AS INTERNATIONAL AEROSPACE LAW & POLICY GROUP) 1D, 7/139 Junction Road Clayfield, Queensland, Australia 4011 Telephone: +61 7 3040 1099 E-mail: jwheeler@ialpg.com BOUCHERIE LLC: Gabilly Seeks Return of Tip Credit, Unpaid Wages --------------------------------------------------------------- Julien Gabilly and Marius Zemache, individually and on behalf of others similarly situated, Plaintiff v. BOUCHERIE LLC, BOUCHERIE PAS LLC, and EMIL STEFKOV, Defendants, Case No. 1:19-cv-07240 (S.D. N.Y., Aug. 2, 2019) is a collective action brought pursuant to the Fair Labor Standards Act, and the New York Labor Law to recover unpaid minimum wages, unlawfully misappropriated tips, and other monies. The complaint alleges that Defendants have failed to compensate their food service workers at the federal and state minimum wage, and unlawfully misappropriated a portion of their tips. Plaintiffs seek injunctive and declaratory relief against Defendants' unlawful actions, return of the tip credit, return of the misappropriated tips, return of unpaid wages, liquidated damages, interest, and attorneys' fees and costs as permitted in accordance with the FLSA and NYLL, says the complaint. Plaintiffs were employed by Defendants as waiters. Defendants are New York limited liability companies that own and operate Boucherie, a restaurant.[BN] The Plaintiff is represented by: Darren P.B. Rumack, Esq. The Klein Law Group, P.C. 39 Broadway, Suite 1530 New York, NY 10006 Phone: 212-344-9022 Facsimile: 212-344-0301 BRIXMOR PROPERTY: $19.5MM Settlement Balance Released from Escrow ----------------------------------------------------------------- Brixmor Property Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2019, for the quarterly period ended June 30, 2019, that the remaining settlement balance of $19.5 million in the class action suit initiated by Westchester Putnam Counties Heavy & Highway Laborers Local 60 Benefit Funds has been released from escrow. On December 13, 2017, the United States District Court for the Southern District of New York granted final approval of the settlement of the previously disclosed putative securities class action complaint filed in March 2016 by the Westchester Putnam Counties Heavy & Highway Laborers Local 60 Benefit Funds related to the review conducted by the Audit Committee of the Board of Directors. Pursuant to the approved settlement, without any admission of liability, the Company paid $28.0 million to settle the claims. This amount was within the coverage amount of the Company's applicable insurance policies and was funded into escrow by the insurance carriers. During the year ended December 31, 2018, $8.5 million of the settlement amount was released from escrow per the court approved settlement agreement for the payment of plaintiff's legal fees. During the six months ended June 30, 2019, the remaining settlement balance of $19.5 million was released from escrow. The settlement provides for the release of, among others, the Company, its subsidiaries, and their respective current and former officers, directors and employees from the claims that were or could have been asserted in the class action litigation. Brixmor Property Group, Inc. operates as a real estate investment trust. The Company owns and operates grocery anchored community and neighborhood shopping centers. Brixmor Property Group serves customers in the United States. The company is based in New York, New York. BROCK BEAUTY: Morgan Files ADA Class Action -------------------------------------------- Brock Beauty Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Jon R. Morgan, on behalf of himself and all others similarly situated, Plaintiff v. Brock Beauty Inc., Defendant, Case No. 1:19-cv-07217-JMF (S.D. N.Y., Aug. 1, 2019). Brock Beauty's offers vitamins and hair care products..[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com CALIFORNIA: Court Dismisses J. Austin's Class Claims ---------------------------------------------------- In the case, JAMES AUSTIN, CDCR # AK-6078, Plaintiff, v. ROBERT BROWN; FABRICE HADJADJ; J. DAVIES; P. COVELLO, Defendants, Case No. 3:18-cv-600-WQH-JLB (S.D. Cal.), Judge William Q. Hayes of the U.S. District Court for the Southern District of California granted in part and denied in part the Defendants' Motion to Dismiss. Austin, a prisoner at the Richard J. Donovan Correctional Facility in San Diego, California, is proceeding pro se and in forma pauperis with a complaint pursuant to the Civil Rights Act against Defendants Brown, Hadjadj, Davies, and Covello. The Plaintiff claims RJD officials violated his right to free exercise of his Buddhist faith under the First Amendment, imposed a substantial burden on the exercise of that faith in violation of the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), and denied him equal protection of the law under the Fourteenth Amendment. He seeks compensatory and punitive damages, mental and emotional damages, declaratory relief, and injunctive relief. The Defendants have filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) on the basis that the Plaintiff has failed to state a First Amendment, Equal Protection, or RLUIPA claim. They also argue they are entitled to qualified immunity and the Plaintiff's state law claims should also be dismissed. Finally, the Defendants seeks to dismiss any claim the Plaintiff purports to bring on behalf of other RJD inmates who practice the Buddhist religion. They have also filed a request for judicial notice which is granted. The Plaintiff sought two extensions of time to respond to the Defendants' Motion, and Magistrate Judge Jill L. Burkhardt granted both extension. The Plaintiff was given until May 8, 2019 to file his opposition. That date has long since passed and the Plaintiff has not filed an opposition. Judge Hayes granted in part and denied in part the Defendants' Motion to Dismiss. He (i) granted the Defendants' Motion to Dismiss the Plaintiff's Fourteenth Amendment equal protection claims without prejudice pursuant to Fed. R. Civ. P. 12(b)(6); (ii) granted the Defendants' Motion to Dismiss the Plaintiff's state law claims with prejudice pursuant to Fed. R. Civ. P. 12(b)(6); (iii) granted the Defendants' Motion to Dismiss to the extent the Plaintiff seeks to litigate claims of others in a representative capacity; (iv) denied the Defendants' Motion to Dismiss the Plaintiff's First Amendment and RLUIPA claims pursuant to Fed. R. Civ. P. 12(b)(6); and (v) denied the Defendants' Motion to Dismiss the Plaintiff's claims on qualified immunity grounds pursuant to Fed. R. Civ. P. 12(b)(6). Among other things, the Judge finds that (i) the Plaintiff's Complaint alleges facts sufficient to show that his free exercise rights were sufficiently "impinged upon" to justify First Amendment protection; (ii) the Plaintiff has adequately alleged facts to show that the alleged actions by the Defendants constitute a substantial burden on the exercise of his religious beliefs; (iii) the Plaintiff has sufficiently alleged a First Amendment and RLUIPA violation as to the Defendants and that it would be clear to reasonable officers in the Defendants' positions that to deny te Plaintiff the right to participate in group worship, in light of only the circumstances as they are currently alleged, would violate clearly established law; and (iv) the Plaintiff, as a pro se litigant, is not permitted to bring claims on behalf of others in a representative capacity. The Defendants will serve and file an Answer to the remaining claims in the Plaintiff's Complaint within the time set forth in Fed. R. Civ. P. 12(a)(4)(A). The Defendants also seek to dismiss any claim the Plaintiff brings on behalf of other persons. Specifically, they contend that "Plaintiff is attempting to maintain a class action on behalf of inmates at RJD." The Court rules that the Defendants are correct that the Plaintiff, as a pro se litigant, is not permitted to bring claims on behalf of others in a representative capacity. Accordingly, the Defendants' Motion to Dismiss the Plaintiff's class action claims is granted. A full-text copy of the Court's July 3, 2019 Order is available at https://is.gd/bhFg4N from Leagle.com. James Austin, Plaintiff, pro se. Robert Brown, Community Resource Manager, Fabrice Hadjadj, Rabbi Chaplain, J. Davies, AA/PIO & P. Covello, Chief Deputy Warden, Defendants, represented by Lyndsay Rebecca Crenshaw, California Department of Justice Office of the Attorney General. CANNTRUST HOLDINGS: Jones Sues Over Share Price Drop ---------------------------------------------------- RONALD E. JONES, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. CANNTRUST HOLDINGS INC., PETER ACETO and GREG GUYATT, Defendants, Case No. 1:19-cv-06883 (S.D. N.Y., July 24, 2019) is a securities class action on behalf of all purchasers of CannTrust common stock between February 25, 2019 and July 12, 2019, inclusive, against CannTrust and certain of the Company's executive officers seeking remedies under the Securities Exchange Act of 1934 (the "1934 Act"). At the start of the Class Period, Health Canada had licensed facilities for certain activities, such as the indoor cultivation of cannabis, but not for other activities, such as outdoor cultivation. But as demand started to outpace supply, unbeknownst to investors, CannTrust had cut corners, lied to regulators, and illegally grown cannabis at its facilities in order to continue to show revenue and sales growth. Then, on July 8, 2019, the Company issued a press release revealing that Health Canada had discovered during an audit of the Company that it had been growing cannabis in five unlicensed rooms at the Niagara Facility over a six-month period and had provided misleading information to the regulator. The Company also announced that Health Canada had placed a hold on a significant quantity of CannTrust's cannabis inventory, and that CannTrust had placed a voluntary hold on additional inventory as Health Canada investigated just how far CannTrust's wrongdoing extended. On this news, the price of CannTrust common stock dropped from a close of $4.94 per share on July 5, 2019, to a close of $3.83 per share on July 8, 2019, a decline of more than 22%. CannTrust now faces the possibility of not only fines and criminal charges, but stiffer penalties, up to and including the loss of its licenses to operate, which would pose an existential threat to the Company. Then, on July 12, 2019, CannTrust announced that it had implemented a voluntary and indefinite hold on all of its products pending an internal review and the results of the investigation by Health Canada. On this news, the price of CannTrust common stock dropped from a close of $3.11 per share on July 11, 2019 to a close of $2.58 per share on July 12, 2019, a decline of more than 17%, says the complaint. Plaintiff Ronald E. Jones purchased CannTrust common stock during the Class Period. CannTrust produces and distributes recreational and medicinal cannabis products. CannTrust's products include dried flower, capsules, oil tinctures, and topicals, along with products for the pet and coffee markets.[BN] The Plaintiff is represented by: Samuel H. Rudman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: 631/367-7100 Fax: 631/367-1173 Email: srudman@rgrdlaw.com - and - BRIAN E. COCHRAN, ESQ. ROBBINS GELLER RUDMAN & DOWD LLP 55 South Main Street, Suite 390 Naperville, IL 60540 Phone: 312/674-4674 Fax: 312/674-4676 Email: bcochran@rgrdlaw.com - and - KENNETH J. BLACK, ESQ. ROBBINS GELLER RUDMAN & DOWD LLP Post Montgomery Center One Montgomery Street, Suite 1800 San Francisco, CA 94104 Phone: 415/288-4545 Fax: 415/288-4534 (fax) Email: kennyb@rgrdlaw.com - and - W. SCOTT HOLLEMAN, ESQ. JOHNSON FISTEL, LLP 99 Madison Avenue, 5th Floor New York, NY 10016 Phone: 212/292-5690 Fax: 212/602-1592 Email: scotth@johnsonfistel.com CAPITAL ONE BANK: Labajo Sues Over Data Breach ---------------------------------------------- CHRISTINA LABAJO and MARY YOON, on behalf of themselves and all others similarly situated, Plaintiffs, v. CAPITAL ONE BANK (USA), N.A., CAPITAL ONE N.A., and CAPITAL ONE FINANCIAL CORPORATION Defendants, Case No. 5:19-cv-01431 (C.D. Cal., Aug. 1, 2019) is a class action against Defendants for their failure to secure and safeguard personal identifying information ("Private Information"), which was wrongfully disclosed in a March 2019 data breach (the "Data Breach"). The Data Breach occurred on March 22 and 23, 2019, but was not discovered by Defendants until nearly four months later, on July 19, 2019. The Defendants did not discover the Data Breach as a result of their own policies or diligence, asserts the complaint. As a result, Plaintiffs and class members are entitled to injunctive relief and restitution of all funds Defendants acquired, including fees that Defendants charged in connection with their credit card services, says the complaint. Plaintiffs are citizens of California who have credit cards issued by Capital One. Defendant Capital One, N.A., is a national bank with its principal place of business in McLean, Virginia..[BN] The Plaintiffs are represented by: L. Timothy Fisher, Esq. Joel D. Smith, Esq. Frederick J. Klorczyk III, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Phone: (925) 300-4455 Facsimile: (925) 407-2700 Email: ltfisher@bursor.com jsmith@bursor.com fklorczyk@bursor.com CAPITAL ONE: Francis Sues Over Failure to Properly Secure PII ------------------------------------------------------------- GLORIA FRANCIS, on behalf of herself and all others similarly situated, Plaintiff v. CAPITAL ONE FINANCIAL CORPORATION, CAPITAL ONE N.A. AND CAPITAL ONE BANK (USA) Defendants, Case No. 8:19-cv-01898 VMC-CPT (M.D. Fla., Aug. 2, 2019) is a class action against Defendants for their failure to properly secure and safeguard personally identifiable information, including without limitation names, bank account numbers, dates of birth, address, social security numbers, self-reported income, telephone numbers and email addresses (collectively, "PII"). On July 29, 2019, Capital One announced that its customers personal information had been breached. Capital One advised that it determined there was unauthorized access to certain types of personal information relating to people who had applied for its credit card products and to credit card customers from 2005 through early 2019. This Data Breach occurred because Defendants failed to implement adequate and reasonable cyber-security procedures and protocols to protect customers' PII. Indeed, the deficiencies in Defendants' data security protocols were so significant that 100 million individuals were affected in the United States. As a result of Defendants' failure to implement and follow basic security procedures, Plaintiff's and Class Members' PII is now in the hands of thieves. As a result, Plaintiff and Class Members face a substantial increased risk of identity theft. Consequently, Capital One's current and former customers have had to spend, and will continue to spend, significant time and money in the future to protect themselves due to Defendants' basic failures, says the complaint. Plaintiff Gloria Francis is a resident of Safety Harbor, Florida and applied for and obtained a Capital One credit card in 2012. Capital One Bank is a national bank and corporation headquartered in Virginia.[BN] The Plaintiff is represented by: William "Billy" Peerce Howard, Esq. Heather H. Jones, Esq. THE CONSUMER PROTECTION FIRM 4030 Henderson Boulevard Tampa, FL 33629 Phone: (813) 500-1500 Facsimile: (813) 435-2369 Email: Billy@TheConsumerProtectionFirm.com Heather@TheConsumerProtectionFirm.com CAPITAL ONE: Haque Sues Over Failure to Protect Personal Info ------------------------------------------------------------- ZAKARIA HAQUE, individually and on behalf of all those similarly situated, Plaintiff, v. CAPITAL ONE FINANCIAL CORPORATION, CAPITAL ONE, NATIONAL ASSOCIATION, and CAPITAL ONE BANK (USA), NATIONAL ASSOCIATION, Defendants, Case No. 2:19-cv-03512-MMB (E.D. Pa., Aug. 2, 2019) is an action on behalf of a nationwide class against Defendants because of their failure to protect the confidential information of millions of consumers and small businesses, including financial information, and/or personal information (collectively, their "Sensitive Information"). On July 29, 2019, Capital One publicly announced that ten days earlier, on July 19, 2019, it had "determined there was unauthorized access by an outside individual who obtained certain types of personal information relating to people who had applied for its credit card products and to Capital One credit card customers." The Defendants only discovered the Data Breach after an individual previously unknown to Capital One sent an email to Capital One providing a link to a file containing the leaked Sensitive Information. The file provided in the link, which was timestamped April 21, 2019, also contained code for commands used in the intrusion, as well as a list of more than 700 folders or buckets of data. The Defendants had obligations, arising from federal and state laws, industry standards, and promises made to credit card applicants and customers like Plaintiff and other Class Members, to keep the Sensitive Information confidential and to protect it from unauthorized disclosures. Class Members provided their Sensitive Information to Capital One with the understanding that Capital One and any business partners to whom Capital One disclosed the Sensitive Information would comply with their obligations to keep such information confidential and secure from unauthorized disclosures. Plaintiff and other Class Members have been injured by the disclosure of their Sensitive Information in the Data Breach, says the complaint. Plaintiff Zakaria Haque is an individual residing in Fairfield, Connecticut, who has been a credit card and automobile loan customer of Capital One. Capital One Financial Corporation, through its subsidiaries, including Defendants CONA and COBNA, is one of the largest credit-card issuers in the United States, and one of the top 10 largest banks based on deposits, serving approximately 45 million customer accounts.[BN] The Plaintiff is represented by: Roberta D. Liebenberg, Esq. Mary L. Russell, Esq. Ria C. Momblanco, Esq. FINE, KAPLAN AND BLACK, RPC One South Broad Street, 23rd Floor Philadelphia, PA 19107 Phone: (215) 567-6565 Email: rliebenberg@finekaplan.com mrussell@finekaplan.com rmomblanco@finekaplan.com - and - Adam Frankel, Esq. GREENWICH LEGAL ASSOCIATES, LLC 881 Lake Avenue Greenwich, CT 06831 Phone: (203) 622-6001 Email: adam@grwlegal.com CAPITAL ONE: Tadrous Sues over Data Breach ------------------------------------------ AKRAM TADROUS, individually and on behalf of all those similarly situated, the Plaintiff, vs. CAPITAL ONE FINANCIAL CORPORATION, CAPITAL ONE, N.A., and CAPITAL ONE BANK (USA), N.A., the Defendants, Case No. 1:19-cv-02292 (D. Colo., July 31, 2019), alleges that Defendants failed to protect confidential information of millions of consumers and small businesses -- including financial information (e.g., bank account numbers, fragments of transaction history, self-reported income, and credit scores), and/or personal information (e.g., Social Security Numbers, names, addresses, phone numbers, email addresses, and dates of birth) (collectively, "Sensitive Information"). The Defendants' wrongful disclosure has harmed Plaintiff and the Class, believed to include approximately 106 million card customers and applicants. Beginning sometime before July 2019, Capital One began storing its customers' data on cloud serves in Amazon Web Services (AWS) popular data storage software Simple Storage Service. In using AWS' data servers, Capital One built its own web application on top of AWS' cloud data so that Capital one could use the information in a manner that was tailored to its needs. Capital One was wholly in control over the construction of this application. The Data Breach that had occurred on March 22 and 23, 2019, was discovered by Defendants only in July 19, 2019 and publicly disclosed on July 29, 2019, over four months after the Sensitive Information of over 100 million customers and credit card applicants were breached. Defendants apparently continued to allow the hacker to intrude their systems at least until April 21, 2019. Capital One Financial Corporation, by and through its subsidiaries, including Defendants Capital One, N.A., and Capital One Bank (USA), N.A., is one of the largest credit-card issuers in the United States, and one of the top 10 largest banks based on deposits, serving approximately 45 million customer accounts, and with a reported $249.8 billion in deposits as of December 31, 2018.[BN] Counsel for Plaintiff and the Proposed Class are: Linda P. Nussbaum, Esq. Bart D. Cohen, Esq. NUSSBAUM LAW GROUP, P.C. 1211 Avenue of the Americas, 40th Floor New York, NY 10036-8718 Telephone: (917) 438-9189 E-mail: lnussbaum@nussbaumpc.com bcohen@nussbaumpc.com - and - James E. Cecchi, Esq. Caroline F. Bartlett, Esq. Mark M. Makhail, Esq. CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C. 5 Becker Farm Road Roseland, NJ 0706-1739 Telephone: (973) 994-1700 E-mail: jcecchi@carellabyrne.com cbartlett@carellabyrne.com mmakhail@carellabyrne.com CARBONITE INC: Luna Suit Hits Share Price Drop ---------------------------------------------- RUBEN A. LUNA, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. CARBONITE, INC., MOHAMAD S. ALI and ANTHONY FOLGER, Defendants, Case No. 1:19-cv-11662 (D. Mass., Aug. 1, 2019) is a securities class action on behalf of all purchasers of Carbonite common stock between February 7, 2019 and July 25, 2019, inclusive, seeking remedies under the Securities Exchange Act of 1934. On October 18, 2018, Carbonite launched its "Server Backup VM Edition" for managed services providers ("MSPs'). The new service was designed to allow MSPs to protect their virtual data both locally and in their own cloud. The Server Backup VM Edition was projected to add "meaningfully" to Carbonite's revenues for fiscal 2019. However, from the start of its launch, the Server Backup VM Edition was of poor quality and technologically flawed and received poor customer reviews and complaints, or as Carbonite put it: "the virtual server edition of our server backup product was not at the level of quality that customers have come to expect from Carbonite" and Carbonite was forced to remove "any growth expectations associated with virtual server edition from our short-term outlook." Just as problematic, the poor reception of the Server Backup VM edition in the marketplace was acting as a "disruptive" factor in and among Carbonite's salesforce, keeping the sales organization from closing opportunistically on several larger deals during fiscal 2019. According to the complaint, the Defendants issued materially false and misleading statements regarding the technological quality of the Server Backup VM Edition and its potential to add "meaningfully" to Carbonite's financial performance for fiscal 2019. Specifically, Defendants failed to disclose that: (i) Carbonite's Server Backup VM Edition was of poor quality and technologically flawed; (ii) Carbonite was receiving poor reviews and complaints from customers about the Server Backup VM Edition; (iii) the poor quality and technological flaws of the Server Backup VM Edition was acting as a "disruptive" factor throughout the Carbonite salesforce and keeping that sales organization from closing opportunistically on several larger deals during fiscal 2019; and (iv) as a result of the foregoing, Carbonite lacked any reasonable for issuing its positive projections and financial forecasts. Finally, on July 25, 2019, Carbonite announced that it was withdrawing its Server Backup VM Edition product from the marketplace and consequently dramatically lowered its financial projections for fiscal 2019 and 2020. That same day, the strongest proponent and supporter of Server Backup VM Edition, Defendant Ali, announced he was leaving Carbonite. On this news, Carbonite stock declined more than 24%, from $23.90 per share when the market closed on July 25, 2019, to $18.01 per share when the market closed on July 26, 2019, on extremely heavy trading volume, the complaint relates. Plaintiff purchased the common stock of Carbonite during the Class Period. Defendant Carbonite, headquartered in Boston, Massachusetts, is a software company that provides cloud-based backup services.[BN] The Plaintiff is represented by: THEODORE M. HESS-MAHAN, ESQ. HUTCHINGS BARSAMIAN, ESQ. MANDELCORN, LLP 110 Cedar Street, Suite 250 Wellesley Hills, MA 02481 Phone: 781-431-2231 Fax: 781/431-8726 Email: thess-mahan@hutchingsbarsamian.com - and - SAMUEL H. RUDMAN, ESQ. VICKI M. DIAMOND, ESQ. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Phone: 631/367-7100 Fax: 631/367-1173 Email: srudman@rgrdlaw.com vdiamond@rgrdlaw.com - and - GURI ADEMI, ESQ. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Phone: 414/482-8000 Fax: 414/482-8001 Email: gademi@ademilaw.com CARDINAL HEALTH: Louisiana Sheriffs' Fund Hits Share Price Drop --------------------------------------------------------------- LOUISIANA SHERIFFS' PENSION & RELIEF FUND, individually and on behalf of all others similarly situated, Plaintiff, v. CARDINAL HEALTH, INC., GEORGE S. BARRETT, DONALD M. CASEY, JR., MICHAEL C. KAUFMANN, JORGE M. GOMEZ, and DAVID J. WILSON, Defendants, Case No. 2:19-cv-03347-EAS-EP (S.D. Ohio, Aug. 1, 2019) is a securities class action brought on behalf of all purchasers of Cardinal common stock between March 2, 2015 and May 2, 2018, inclusive. The claims asserted in the complaint are alleged against Cardinal and certain of the Company's senior executives, and arise under Sections 10(b) and 20(a) of the Securities and Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. This action arises from Defendants' misrepresentations and omissions relating to Cardinal's integration of Cordis Corp., a medical device manufacturer Cardinal purchased from Johnson & Johnson ("J&J") in March 2015, and the inventory and supply chain problems at Cordis. The Defendants misled investors by stating that Cordis would benefit from Cardinal's advanced inventory management and supply chain information technology solutions. In truth, the inventory tracking and supply chain technology that Defendants said the Company would use to improve Cordis's performance was never implemented. Consequently, the Company materially overstated Cordis's inventory balances by failing to account for significant amounts of unsellable or expired Cordis medical devices. Further, Cardinal falsely stated that Cordis was "performing well" and that the integration of Cordis was "on track," "largely on plan," and "going incredibly well," while failing to disclose serious supply chain issues that were hurting the Company's operational performance and financial results, says the complaint. The first indications of the truth about Cordis's inventory and supply chain issues were revealed on August 2, 2017. That day, Cardinal reported weak earnings for its fourth quarter and fiscal year 2017 and lowered its earnings guidance for fiscal year 2018 due in part to "higher than-planned write-offs for excess inventory" at Cordis. On this news, the price of Cardinal stock declined over 8 percent. The Defendants, however, falsely assured Cardinal's investors that Cordis's operational deficiencies had been addressed, that the Company had built the necessary infrastructure and IT systems for Cordis such that it now had "visibility" of Cordis's inventory, and that the Cordis business was "going into a phase of a lot more stability." Then, on May 3, 2018, Cardinal announced disappointing results for its third quarter fiscal year 2018 and cut its fiscal year 2018 earnings guidance. The Company explained that the "biggest variable driving these results" was the "disappointing performance" of the Cordis business. On this news, the Company's stock price dropped over 21 percent. The Company subsequently took a $1.4 billion non-cash goodwill impairment charge driven by continued "inventory and cost challenges within the Cordis business" representing almost 70% of Cordis's acquisition price, adds the complaint. Plaintiff Louisiana Sheriffs is a multi-employer, defined benefit, governmental retirement plan providing retirement, disability and death benefits to approximately 25,000 active and retired employees of the sheriff's offices in all 64 Louisiana parishes. Cardinal is a global, integrated healthcare services and products company.[BN] The Plaintiff is represented by: Todd A. Long, Esq. MCNEES WALLACE & NURICK LLC 21 East State Street, Suite 1700 Columbus, OH 43215 Phone: (614) 719-2843 Facsimile: (614) 614-469-4653 Email: tlong@mcneeslaw.com - and - Avi Josefson, Esq. Michael D. Blatchley, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas New York, NY 10020 Phone: (212) 554-1400 Facsimile: (212) 554-1444 Email: avi@blbglaw.com michaelb@blglaw.com - and - Robert D. Klausner, Esq. KLAUSNER KAUFMAN JENSEN & LEVINSON 7080 Northwest 4th Street Plantation, FL 33317 Phone: (954) 916-1202 Email: bob@robertdklausner.com CARGILL INC: Court Narrows Claims in Tavares Labor Suit ------------------------------------------------------- In the case, MARIBEL TAVARES, individually, and on behalf of other members of the general public similarly situated and on behalf of other aggrieved employees pursuant to the California Private Attorneys General Act, Plaintiff, v. CARGILL INCORPORATED, an unknown business entity; CARGILL MEAT SOLUTIONS CORP., an unknown business entity, Defendants, Case No. 1:18-cv-00792-DAD-SKO (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California granted in part and denied in part the Defendants' motions to dismiss Tavares' first amended complaint ("FAC"). The case was originally filed in Fresno County Superior Court on April 20, 2018, and removed to the federal court on June 8, 2018 under the Class Action Fairness Act of 2005. The Plaintiff filed the FAC on July 12, 2018. In her FAC, the Plaintiff alleges that the Defendants jointly and severally employed the Plaintiff as an hourly-paid, non-exempt employee from approximately April 2013 to approximately February 2017 in Fresno County. According to her, the Defendants were her joint employers because they had the authority to hire and terminate Plaintiff and other class members, exercised sufficient authority over the terms and conditions governing their employment, and supervised their daily employment activities. The Defendants continue to employ hourly-paid or non-exempt employees within California. The Defendants engaged in a pattern and practice of wage abuse against their hourly-paid or non-exempt employees by failing to pay them for all regular and/or overtime wages earned and for missed meal periods and rest breaks. The Plaintiff and the other class members worked over eight hours in a day and/or 40 hours in a week during their employment with the Defendants. Additionally, the Plaintiff and the other class members were regularly required to perform unpaid work before clocking in and after clocking out for each shift due to time spent donning and doffing necessary uniforms and equipment. Similarly, the Plaintiff and the class members were not provided with uninterrupted meal and rest periods, free from being required to perform work duties, since they were required to spend time donning and doffing necessary uniforms and equipment. The Plaintiff and the other class members did not receive all wages owed to them for the unpaid work they had performed upon their discharge or resignation. The Defendants did not provide accurate wage statements or keep complete and accurate payroll records because they used a time-keeping system that failed to record all hours worked by the Plaintiff and the class members and consistently shaved time in their own favor by rounding time punches. Finally, the Defendants failed to reimburse the Plaintiff and the class members for business-related expenses for the specific uniforms and protective equipment -- such as boots, cold suits, and protective helmets -- which the Defendants required employees to purchase and maintain. The Plaintiff's FAC asserts the following nine causes of action: (1) failure to pay overtime wages in violation of California Labor Code Sections 510 and 1198; (2) failure to provide lawful meal periods in violation of Labor Code Sections 226.7 and 512(a); (3) failure to provide lawful rest periods in violation of Labor Code Sections 226.7; (4) failure to pay minimum wage in violation of Labor Code Sections 1194, 1197, and 1197.1; (5) failure to pay wages due at termination in violation of Labor Code Sections 201 and 202; (6) failure to provide accurate itemized wage statements in violation of Labor Code Section 226(a); (7) failure to reimburse business expenses in violation of Labor Code Sections 2800 and 2802; (8) violation of California's unfair competition law ("UCL") codified at California Business & Professions Code Sections 17200, et seq.; and (9) a claim under California's Private Attorney General Act ("PAGA") under Labor Code Sections 2698, et seq. The matter is before the Court on motions to dismiss the FAC. They move to dismiss each of the Plaintiff's nine causes of action in which violations of the Labor Code are asserted, arguing that the Plaintiff's FAC fails to allege facts sufficient to state cognizable claims. The Plaintiff filed an opposition to these motions on Sept. 19, 2018, and the Defendants replied on Sept. 25, 2018. The Court heard oral argument on Oct. 2, 2018. Judge Drozd finds that the FAC does not include any factual allegations indicating how, under what circumstances or when the Plaintiff was allegedly required to work off-the-clock, or what work she purportedly performed when required to do so. The only other potential relevant factual allegation in the FAC is that off-the-clock work, included, but was not limited to, time spent "donning and doffing necessary uniforms and equipment." Even if this allegation were construed to relate to an overtime and minimum wage claim based on uncompensated work time, the Plaintiff has not alleged any facts that, if proven, would show that this time was not compensated nor that would show how it should have been compensated. Therefore, the Plaintiff's first and fourth causes of action will be dismissed. In her opposition to the Defendants' motions, the Plaintiff states that her meal and rest period claims are "derivative of the Plaintiff's unpaid wage claims because they are largely based upon the Defendants' off-the-clock work requirements." As discussed above, the Judge has also concluded that the Plaintiff's FAC fails to allege sufficient facts to state cognizable unpaid overtime and unpaid minimum wage claims. The Plaintiff's derivative claims as alleged also fail. Accordingly, the Plaintiff's second and third causes of action will also be dismissed. The Defendants argue that fifth claim too is unsupported by any factual allegations regarding "when or what work the Defendants required the Plaintiff to perform" or if "the Plaintiff is claiming the Defendants failed to pay final wages within the allowable window." The Judge finds tha the FAC employs conclusory allegations that merely repeat the language of the applicable statutory provisions and does not provide any supporting factual allegations. Accordingly, the Plaintiff's fifth cause of action will also be dismissed. In her opposition, the Plaintiff states that her claim for failure to provide accurate itemized wage statements arises from the allegations of unpaid time worked. However, the JUdge has concluded that the Plaintiff's FAC fails to allege cognizable unpaid overtime and unpaid minimum wage claims. Therefore, he cannot find the derivative non-compliant wage statement claim to be cognizable. For these reasons, the Plaintiff's sixth cause of action will also be dismissed. The Plaintiff's seventh cause of action is also subject to dismissal. The Judge finds that although the Plaintiff includes a general allegation in the FAC that she and prospective class members were not reimbursed for required uniforms and equipment such as boots, cold suits, and protective helmets, she fails to allege any single specific cost incurred that was not fully reimbursed by the Defendant. Instead, the Plaintiff's conclusory allegations again merely mirror the language of the statute without any supporting factual allegations. Because the Plaintiff has not adequately pled her wage and hour claims, her UCL claim also fails. The Judge also observes that the FAC does not contain any non-conclusory factual allegations regarding the Defendants' alleged unfair or fraudulent business practices. Accordingly, the Plaintiff's eighth cause of action must also be dismissed. The Judge holds it cannot be said at this stage of the litigation that the Plaintiff's PAGA claim is time-barred because it is possible that she filed her initial complaint within the limitations period. Therefore, the Defendants' motions to dismiss on that ground will be denied without prejudice. The Plaintiff alleges that her employment with the Defendant ended in February 2017. The Plaintiff has not alleged any intention of, or interest in, seeking to return to work for the Defendants in the future. Therefore, as a former employee, the Plaintiff has not shown a likelihood of future injury that is a real and immediate. Accordingly, the Defendants' motions to dismiss the Plaintiff's request for injunctive relief will be granted. Defendant Cargill's motion to dismiss the Plaintiff's joint employer and all allegations as to Defendant Cargill will be denied. The Judge finds that the Plaintiff alleges that both Defendants Cargill and CMSC had the authority to hire and terminate her and the other class members, exercised sufficient authority over the terms and conditions governing their employment, and supervised their daily employment activities. These allegations are sufficient to state a claim against Defendant Cargill on the basis of its joint employment of the Plaintiff. Finally, at the hearing on the pending motion, the Plaintiff's counsel represented that she could, if permitted, allege additional facts in support of her claims rendering them facially plausible. In addition, her counsel requested leave to amend to provide additional factual allegations regarding her dates of employment and in support of equitable tolling of the applicable statute of limitations with respect to the fourth, sixth, and seventh causes of action. Finally, the Plaintiff may be able to allege facts regarding her desire for future employment with the Defendants in support of her request for injunctive relief. The Defendants have not shown that they will suffer prejudice if the Plaintiff is granted further leave to amend. Given these considerations, the dismissal of the Plaintiff's FAC will be without prejudice in all respects, and the Plaintiff will be granted leave to file a second amended complaint. For the reasons set forth, Judge Drozd granted in part the Defendants' motions to dismiss with leave to amend. Any amended complaint will be filed within 28 days from the date of service of the order. A full-text copy of the Court's July 3, 2019 Order is available at https://is.gd/yv11Xq from Leagle.com. Maribel Tavares, individually and on behalf of other members of the general public similarly situated and on behalf of the aggrieved employees pursuant to the California Private Attorneys General Act, Plaintiff, represented by Cody R. Kennedy, Marlin & Saltzman LLP, Edwin Aiwazian -- edwin@lfjpc.com -- Lawyers for Justice, PC, Stanley D. Saltzman -- ssaltzman@marlinsaltzman.com -- Marlin & Saltzman, LLP & William Anthony Baird, Marlin & Saltzman, LLP. Cargill, Incorporated, an unknown business entity & Cargill Meat Solution Corp., an unknown business entity, Defendants, represented by Jason Eric Barsanti -- jbarsanti@cozen.com -- COZEN O'CONNOR & Tina Syring-Petrocchi, Cozen O'Connor, pro hac vice. CARRINGTON MORTGAGE: Court Dismisses MFDCPA Claims in Miller Suit ----------------------------------------------------------------- Judge Jon D. Levy of the U.S. District Court for the District of Maine granted in part and denied in part Carrington Mortgage's motion to dismiss the case, JAMES F. MILLER, Individually and on Behalf of Himself and Others Similarly Situated, Plaintiff, v. CARRINGTON MORTGAGE SERVICES, LLC, Defendant, Case No. 2:19-cv-00016-JDL (D. Me.). Miller brings the putative class action against Carrington Mortgage, alleging that various communications he received from Carrington Mortgage after his bankruptcy discharge violated the Fair Debt Collection Practices Act ("FDCPA"), and the Maine Fair Debt Collection Practices Act ("MFDCPA"). On July 21, 2008, Miller and his then-wife executed a promissory note and mortgage in favor of Countrywide Bank, FSB, in the amount of $64,980 to finance the purchase of their home in Washburn, Maine. In 2010, Miller and his wife separated, and they started to fall behind on the loan. The loan has been in arrears ever since. In October 2011, Miller and his wife divorced, and she conveyed her interest in the property to Miller. Miller continued living at the Washburn property for a short time, but he was unable to keep up with the loan payments and fell further behind. Miller then moved to Gray, Maine, in February 2012. In November 2012, Miller filed for Chapter 7 Bankruptcy in the U.S. Bankruptcy Court for the District of Maine. By that time, the mortgage had been assigned to Bank of America, which had begun servicing the loan. Bank of America received notice of the bankruptcy filing and all subsequent filings and orders in the bankruptcy case. As part of his Chapter 7 Individual Debtor's Statement of Intention in the bankruptcy case, Miller stated that he would surrender the Washburn property. Miller received his bankruptcy discharge in February 2013, which resulted in the discharge of any personal obligation that Miller had on the mortgage loan. Miller has not made a payment on the mortgage loan since before he filed for bankruptcy. Carrington Mortgage began servicing Miller's loan in September 2016 and at that time received from Bank of America the documentation of Miller's bankruptcy case and discharge. From late 2016 until early 2018, a Carrington Mortgage representative called Miller every couple of months about resolving the amounts he purportedly owed on the loan. Each time the representative called, Miller informed them that he had moved out of and surrendered the Washburn property, and that he had received a bankruptcy discharge. During the same time period, Carrington Mortgage also mailed a notice regarding debt relief and several notices regarding the purchase of force-placed hazard insurance for the Washburn property to Miller, but they were sent to an incorrect address in Gray and Miller did not receive them. In July 2017, the loan was assigned to Wilmington Savings Fund Society, FSB, as trustee for Sandwich Mortgage Loan Trust. Carrington Mortgage continued to service the loan. On May 9, 2018, Miller was served with a summons and foreclosure complaint for a state foreclosure action for the Washburn property, which was brought by Wilmington Savings. The original foreclosure complaint alleged that only Miller's exwife was in default on the note and in breach of the mortgage, but Wilmington Savings later filed an amended complaint that sought to hold Miller liable for any deficiency balance remaining due after the sale of the property and application of the proceeds of the sale. With the help of an attorney, Miller alerted Wilmington Savings' counsel to the fact that he was not personally liable for any deficiency balance on the loan because of his bankruptcy discharge. Wilmington Savings amended the foreclosure complaint again to remove the request for a deficiency from Miller. While the foreclosure case was pending, Carrington Mortgage sent Miller a series of mortgage statements, as well as letters notifying him that a hazard insurance policy had been purchased for which Miller would be required to pay, each of which Miller alleges violate the FDCPA and the MFDCPA. The complaint alleges that the mortgage statements, the insurance letters, and the foreclosure complaint seeking a deficiency judgment against Miller caused Miller "severe emotional distress and anxiety" and led him to worry that "he would never be free from demands for payment of the Loan and also that somehow Carrington might have found a way of getting around the bankruptcy discharge protections." The complaint asserts violations of four provisions of the FDCPA and the MFDCPA. Specifically, the complaint alleges that through the telephone calls, forced-placed hazard insurance letters, foreclosure complaint, and monthly mortgage statements, Carrington Mortgage: (1) falsely represented the character, amount, and legal status of the loan debt; (2) used false representations and deceptive means to collect on the loan debt; (3) engaged in conduct the natural consequence of which was to harass, oppress, or abuse Miller in connection with the mortgage debt by attempting to collect the debt despite knowing of the bankruptcy discharge, and (4) used unfair or unconscionable means to collect or attempt to collect on the mortgage loan. At the pleading stage, Judge Levy finds that Carrington Mortgage has not demonstrated, as a matter of law, that its disclaimer language is sufficiently clear that it is implausible that an unsophisticated debtor would believe that the company was attempting to collect a debt from the debtor personally. He therefore concludes that the complaint, considered alongside the mortgage statements, plausibly alleges that "one of the animating purposes" of the statements "was to induce payment" by Miller. The Judge also concludes that the Complaint plausibly alleges that the force-placed hazard insurance letters constitute debt collection under the FDCPA. Hazard insurance is an obligation to pay money that arises out of the mortgage transaction between the creditor and the debtor. Therefore, a demand for payment of hazard insurance is fairly treated as debt collection under the FDCPA. Next, absent any legal support for the imposition of vicarious liability on Carrington Mortgage for the actions of Wilmington Savings, the Judge declines to impose such liability. He finds that the complaint does not allege that Wilmington Savings was acting as Carrington Mortgage's agent when it filed the amended foreclosure complaint. Furthermore, because Wilmington Savings is the creditor and enlisted Carrington Mortgage to service the loan, it would be implausible to infer that that was the case. Because the FDCPA and MFDCPA claims alleged in the complaint are not based solely on the phone calls, however, they are not subject to dismissal. Rather, the complaint plausibly alleges that the mortgage statements and force-placed hazard insurance letters that Carrington Mortgage sent to Miller constitute debt collection under the FDCPA and, therefore, the complaint states a claim under the FDCPA. Finally, the Judge concludes that the Bankruptcy Code impliedly preempts the MFDCPA and therefore, the MFDCPA claims asserted in the complaint are dismissed. He finds that the only remedy provided for in the MFDCPA that does not "overlap" with a remedy available under the Bankruptcy Code is an award of statutory damages of $1,000. Therefore, this is not a case where there is "no comparable overlap between a specific remedy available under the Bankruptcy Code" and the state law cause of action. In fact, the opposite is true: there is a complete overlap in remedy, with the exception of the statutory damages for which the MFDCPA provides. That difference, however, is not enough to show that the MFDCPA is not pre-empted by the Bankruptcy Code. To the contrary, because the Congress has plenary power to enact uniform federal bankruptcy laws, states may not pass or enforce laws to interfere with or complement the Bankruptcy Act or to provide additional or auxiliary regulations. For the reasons stated , Judge Levy granted in part and denied in part Carrington Mortgage's Motion to Dismiss. He granted the Motion with respect to claims brought under the MFDCPA, which are accordingly dismissed. He denied in partT with respect to claims brought under the FDCPA. A full-text copy of the Court's July 3, 2019 Order is available at https://is.gd/9k3MB5 from Leagle.com. JAMES F MILLER, individually and on behalf of himself and others similarly situated, Plaintiff, represented by ANDREA BOPP STARK -- andrea@molleurlaw.com -- NATIONAL CONSUMER LAW CENTER, CHARLES DELBAUM -- cdelbaum@nclc.org -- NATIONAL CONSUMER LAW CENTER, pro hac vice & ELIZABETH A. MILLER, MOLLEUR LAW OFFICE, pro hac vice. CARRINGTON MORTGAGE SERVICES LLC, Defendant, represented by CELIA C. FALZONE -- celia.falzone@akerman.com -- AKERMAN LLP, MARC J. GOTTLIEB -- marc.gottlieb@akerman.com -- AKERMAN LLP, DAVID B. MCCONNELL -- dmcconnell@perkinsthompson.com -- PERKINS THOMPSON, PA, DAWN M. HARMON -- dharmon@perkinsthompson.com -- PERKINS THOMPSON, PA & JOSEPH G. TALBOT -- jtalbot@perkinsthompson.com -- PERKINS THOMPSON, PA. CELLULAR SALES OF KNOXVILLE: Seeks Arbitration of Deardorff Case ---------------------------------------------------------------- The Defendants in the case captioned as JESSICA DEARDORFF; and DAVID CHAPMAN, individually and on behalf of all others similarly situated, Plaintiff v. CELLULAR SALES OF KNOXVILLE, INC.; CELLULAR SALES OF PENNSYLVANIA, LLC; and CELLULAR SALES OF NORTH CAROLINA, LLC, Case No. 2:19-cv-02642 (E.D. Pa., June 18, 2019) filed a motion to compel individual arbitration and to dismiss the Plaintiffs' claims on July 29, 2019. The case is assigned to Judge Nitza Quinones Alejandr. Cellular Sales of Knoxville, Inc. provides telecommunication products and services. The Company offers retail of basic phones, smartphones, tablets, and mobile broadband, as well as provides internet and home phone services. [BN] The Plaintiff is represented by: Deirdre A. Aaron, Esq. Molly A. Brookes, Esq. Maya S. Jumper, Esq. OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Telephone: (212) 245-1000 Facsimile: (646) 509-2060 E-mail: daaron@outtengolden.com mb@outtengolden.com mjumper@outtengolden.com - and - Michael J.D. Sweeney, Esq. GETMAN SWEENEY & DUNN, PLLC 260 Fair Street Kingston, NY 12401 Telephone: (845) 255-9370 Facsimile: (845) 255-8649 E-mail: msweeney@getmansweeney.com CENIKOR FOUNDATION: Williams Suit Transferred to S.D. Texas ----------------------------------------------------------- The case, SHELBY LEE WILLIAMS and RANDY EDWARD POUNCY, Individually and On Behalf of All Others Similarly Situated, the Plaintiffs, v. CENIKOR FOUNDATION and WILLIAM BAILEY, the Defendants, Case No. 1:19-cv-00229 (Filed May 22, 2019), was transferred from the U.S. District Court for the Eastern District of Texas, to the U.S. District Court for the U.S. District Court for the Southern District of Texas (Houston) on Aug. 1, 2019. The Southern District of Texas Court Clerk assigned Case No. 4:19-cv-02828 to the proceeding. The case is assigned to the Hon. Judge Keith P. Ellison. The suit alleges violation of the Fair Labor Standards Act.[BN] Attorneys for the Plaintiff are: Curt Christopher Hesse, Esq. Bridget Dale Davidson, Esq. Melissa Moore, Esq. MOORE & ASSOCIATES 440 Louisiana Street, Ste 675 Houston, TX 77002-1637 Telephone: (713) 222-6775 Facsimile: (713) 222-6739 E-mail: curt@mooreandassociates.net bridget@mooreandassociates.net Attorneys for the Defendants are: David Mitchell Gregory, Esq. LOCKE LORD ET AL 600 Travis, Ste 2800 Houston, TX 77002 Telephone: (713) 226-1344 Facsimile: (713) 229-2630 E-mail: dgregory@lockelord.com CHEERLEADERS GENTLEMEN'S: Exotic Dancer Sues Over Wages ------------------------------------------------------- Torsten Ove, writing for Pittsburgh Post-Gazette, reports that a former dancer at a Downtown strip club has sued the club for not paying her and other dancers anything beyond tips from patrons. In a federal suit, Franchesca Reyes said Cheerleaders Gentlemen's Club on Liberty Avenue and its director illegally classifies dancers as "independent contractors" and not employees. As a contractor, she and her lawyers said, she didn't get paid anything from the club and only collected tips. In addition, she said she had to share those tips with the club and employees who don't get tips, such as bouncers. She said she also had to pay a "house fee" to the club for each shift she worked. The suit is seeking class-action status for other dancers. Another former Cheerleaders dancer brought a similar complaint in federal court two years ago that also sought class-action status, but later dropped the complaint. Ms. Reyes, of Bridgeville, worked at Cheerleaders for about a year, from August 2016 to July 2017. She said she worked six-hour shifts five times a week and the club treated her and other dancers as employees, including requiring them to audition, making them sign in and sign out and having them wear a wrist band to keep track of how many lap dances they did. Under the federal Fair Labor Standards Act, according to the suit, she and the other dancers should have been classified as employees and not contractors and thus eligible for minimum wage. The suit is seeking unpaid wages for Ms. Reyes and other dancers, claiming the club is in violation of the Fair Labor Standards Act as well as the Pennsylvania Minimum Wage Act. In addition to the club, the suit names as defendants its corporate owners, Mag Pitt LLC and Mag Pitt LLP, and co-owner John Meehan. The club's lawyer didn't immediately respond to a request for comment. [GN] CONOCOPHILLIPS: Duffy Sues Over Unpaid Overtime Wages ----------------------------------------------------- JOHN DUFFY, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. CONOCOPHILLIPS and CONOCOPHILLIPS COMPANY, Defendants, Case No. 4:19-cv-02877 (S.D. Tex., Aug. 2, 2019) is a lawsuit seeking to recover unpaid overtime wages and other damages from Defendants under the Fair Labor Standards Act. Plaintiff and the other workers like him regularly worked for Conoco in excess of 40 hours each week. But these workers never received overtime for hours worked in excess of 40 hours in a single workweek. Instead of paying overtime as required by the FLSA, Conoco improperly classified Plaintiff and similarly situated workers as independent contractors and paid them a daily rate with no overtime compensation. This collective action seeks to recover the unpaid overtime wages and other damages owed to these workers. Duffy worked for Conoco from approximately 2013 until 2018. Conoco is an oil and natural gas exploration and production company operating worldwide and throughout the United States.[BN] The Plaintiffs are represented by: Michael A. Josephson, Esq. Andrew Dunlap, Esq. Taylor A. Jones, Esq. JOSEPHSON DUNLAP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Phone: 713-352-1100 Facsimile: 713-352-3300 Email: mjosephson@mybackwages.com adunlap@mybackwages.com tjones@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Phone: (713) 877-8788 Facsimile: (713) 877-8065 Email: dmoulton@brucknerburch.com CORELOGIC RENTAL: Court OKs Class Certification in Feliciano ------------------------------------------------------------ The United States District Court for the Southern District of New York issued an Opinion and Order granting Plaintiffs' Motion for Class Certification in the case captioned CLAUDINNE FELICIANO, Plaintiff, v. CORELOGIC RENTAL PROPERTY SOLUTIONS, LLC, Defendant. No. 17 Civ. 5507 (AKH). (S.D.N.Y.). This case is about alleged inaccuracies in tenant data registries. Plaintiff Claudinne Feliciano, on behalf of herself and others similarly situated, filed suit against defendant CoreLogic Rental Property Solutions, LLC, alleging violations of the Fair Credit Reporting Act (FCRA) and under the New York Fair Credit Reporting Act (NYFCRA), General Business Law (GBL).Plaintiff alleges that defendant has failed to insure the accuracy of bulk tenant data before selling the data and the resulting reports to prospective landlords, who rely on them to assess and screen potential tenants. The Plaintiff moves for class certification of a class defined as all persons who within two years prior to the commencement of this action (1) were the subject of a credit report prepared by CoreLogic (2) prior to the issuance of the credit report, were a party in a Housing Court proceeding filed in a New York State court, which had a disposition of dismissed, discontinued or withdrawn and (3) the CoreLogic credit report referenced the Housing Court proceeding but failed to include such disposition. The Plaintiff seeks certification of the class pursuant to Rule 23(b)(3), which is satisfied when the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Standing As a preliminary matter, defendant challenges class members' standing to assert their claims. To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is `concrete and particularized' and actual or imminent, not conjectural or hypothetical. Feliciano's rental application was denied on the basis of her ScorePlus Score, of which her inaccurate Housing Court case disposition status was a contributing factor. The Court holds that Feliciano has suffered a concrete and particularized injury and has standing to assert her claims. Personal Jurisdiction Defendant argues that the Court lacks personal jurisdiction over certain out-of-state class members. The argument is irrelevant. Jurisdiction is based on the collection of data in New York state courts, wherever the class member resides. In light of this connection to the forum, defendant's citation to Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S.Ct. 1773, 1775 (2017), is inapplicable. Numerosity Certification is appropriate when the number of class members is sufficiently large so that joinder of all members would make litigation needlessly complicated and inefficient. In this Circuit, numerosity is presumed at a level of 40 members, although the determination of practicability depends on all the circumstances surrounding the case, not on mere numbers. CoreLogic does not contest numerosity, and the proposed class satisfies the numerosity requirement. Commonality The second requirement under Rule 23(a) is that the action must raise questions of law or fact common to the class. Even a single common question of law or fact may suffice to satisfy the commonality requirement. This case presents a number of common questions. See Br. at 19. These include whether defendant maintained a uniform practice of publishing inaccurate Housing Court disposition statuses; whether such inaccurate reporting violates the FCRA and NYFCRA; whether defendant followed reasonable procedures to ensure the accuracy of its records; whether the alleged conduct was willful; the appropriate amount of statutory damages; and the possible award of punitive damages. Defendant argues that a number of individual issues preclude class certification. These include 1) variations in the timing of data 2) number of updates or audits to the file3) case-specific barriers to information updates, such as loss of terminal access and 4) variations in procedures adopted by different data collectors and vendors, including CoreLogic, LexisNexis, and LexisNexis' subcontractor NYE. All of these information resources ultimately derived from the same New York Housing Court sources. These issues ultimately address a single, uniform inquiry: whether defendant's information collection procedures were sufficient and reasonable. The commonality requirement is satisfied by the proposed class. Typicality The third prerequisite to a class action, known as typicality, is that the claims or defenses of the representative parties are typical of the claims or defenses of the class. The third and fourth requirements of Rule 23(a) tend to merge with the commonality requirement, as all three serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. The fact that records of plaintiff were derived solely from records collected by CoreLogic, and not as a result of data acquired by LexisNexis, does not distinguish her from prospective class members whose data derived from alternative sources. Feliciano's claims are typical of the class and arise out of the same allegations and claims. There are no individualized claims or defenses. The proposed class meets the requirements of typicality. Adequacy The last prerequisite to a class action is whether the representative parties will fairly and adequately protect the interests of the class, known as the adequacy requirement. That determination requires a two pronged inquiry: (1) class counsel must be `qualified, experienced, and generally able to conduct the litigation; and (2) class members must not have antagonistic interests to one another. Feliciano has actively participated in the litigation up to the present time. There is no indication that she possesses any interests adverse to the class. Plaintiff's counsel is experienced in the relevant law and in conducting class actions. Feliciano and her counsel are adequate class representatives. Rule 23(b)(3) Predominance The predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. The predominance inquiry `asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues. With the class, common issues predominate individual issues. The allegations as to CoreLogic's collection, updating, and reporting of case information are common to all members of the class. Because the class seeks statutory damages, there is no requirement for individual class members to demonstrate actual harm or for determination of damages. A finding of predominance is consistent with other FRCA cases. Defendant argues that individual issues especially the accuracy of the individual reports and the willfulness of CoreLogic predominate. Whether a report is accurate may involve an individualized inquiry. Here, defendant takes the position that the accuracy, timing, and technique used to acquire Housing Court data of each class member would require individualized class determinations. Moreover, it argues that its methods have varied over time, creating an individualized question of reasonableness in each case. Defendant's arguments are not persuasive. To the extent that the reports' accuracy entails differentiated determinations, these are straightforward issues apparent on the basis of documentary evidence. Moreover, to the extent that defendant would seek to preemptively litigate any and all possible defenses, and the reasonableness of CoreLogic and its partners' information aggregation procedures, these are merits issues not suited to the class certification inquiry. Common issues predominate within the proposed class. Superiority The superiority requirement asks courts to balance, in terms of fairness and efficiency, the advantages of a class action against those of alternative available methods of adjudication. Here, a class action represents a superior method of resolving the controversy. There are significant efficiency gains to aggregation, and the use of a class action will enable members of the class to prosecute claims even for relatively modest statutory damages. Ascertainability A class is ascertainable when defined by objective criteria that are administratively feasible and when identifying its members would not require a mini-hearing on the merits of each case. The class, based on documented records produced by CoreLogic, is ascertainable. From a list of 4,229 Housing Court Reports issued during the relevant period, plaintiff's counsel cross-checked court records in New York, Queens, Staten Island, Kings, and Bronx counties, identifying 3,996 matching proceedings. In 2,605 of those cases, the courts had recorded a disposition of the cases before the relevant report had issued, leading to an inaccurate report. The individuals associated with this cases constitute the scope of the class. Defendant makes much of the fact that the determination of the class, and the procedures complained of, both ultimately derive from the same source, Housing Court records. This line of attack is unpersuasive. Contrary to defendant's arguments, plaintiff does not take the position that the records available at Housing Court public access terminals are intrinsically unreliable. Rather, defendant's alleged failures in developing suitable procedures to access and update the information forms that basis of plaintiff's claim. The identity of the prospective class members is thus sufficiently definite. Accordingly, the proposed class meets the requirements for acertainability. Accordingly, the Plaintiff's motion to certify the class is granted. In light of good cause shown and consistent with the Court's prior order, defendant's motion to seal is granted. A full-text copy of the District Court's July 29, 2019 Opinion and Order is available at https://tinyurl.com/yy4mntoz from Leagle.com. Claudinne Feliciano, individually and on behalf of all others similarly situated, Plaintiff, represented by Seth Richard Lesser -- seth@klafterolsen.com -- Klafter, Olsen & Lesser, LLP, Alexis Helene Castillo -- alexis.castillo@klafterolsen.com -- Klafter, Olsen & Lesser, LLP, Andrew Palmer Bell, Locks Law Firm PLLC, 457 Haddonfield Road, Ste 500 Cherry Hill, NJ 08002, Reuben Jeffrey Fuller-Bennett, Fishman Rozen LLP & James B. Fishman, Fishman Rozen LLP, 305 Broadway, New York, NY 10007 Corelogic Saferent, LLC, Defendant, represented by Joshua Aaron Dachs -- joshua.dachs@troutman.com -- Troutman Sanders LLP, Ronald I. Raether, Jr. -- ron.raether@troutman.com -- Troutman Sanders LLP, pro hac vice & Timothy James St. George -- tim.st.george@troutman.com -- Troutman Sanders LLP. LexisNexis Risk Data Retrieval Services LLC, Interested Party, represented by Michael Bruce Miller -- mbmiller@mofo.com -- Morrison & Foerster LLP. CREDITREPAIR.COM INC: Has Made Unsolicited Calls, Forrest Alleges ----------------------------------------------------------------- RAY FORREST, individually and on behalf of all others similarly situated, Plaintiff v. CREDITREPAIR.COM, INC., Defendant, Case No. 0:19-cv-61930 (S.D. Fla., July 31, 2019) seeks to stop the Defendants' practice of making unsolicited calls. The case is assigned to Judge William P. Dimitrouleas and referred to Magistrate Lurana S. Snow. Creditrepair.com, Inc. is a Florida corporation engaged in providing consumer credit reporting services. [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 CURLKIT LLC: Has Made Unsolicited Calls, Addo Suit Claims --------------------------------------------------------- DARCEY ADDO, individually and on behalf of all others similarly situated, Plaintiff v. CURLKIT, LLC, Defendant, Case No. 6:19-cv-01402 (M.D. Fla., July 30, 2019) seeks to stop the Defendants' practice of making unsolicited calls. The case is assigned to Judge Wendy W. Berger. Curlkit, LLC is a New Jersey limited liability company which offers natural hair brands for women in the market, which covers all the needs for simple house hold lady to a top fashion model. [BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 1205 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com gberg@shamisgentile.com - and - Scott Edelsberg, Esq. Jordan D. Utanski, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd #607 Aventura, FL 33180 Telephone: (305) 975-3320 E-mail: scott@edelsberglaw.com utanski@edelsberglaw.com DAVID NOLAN GALLERY: Picon Sues Over Blind-Inaccessible Website --------------------------------------------------------------- YELITZA PICON AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, Plaintiffs, v. DAVID NOLAN GALLERY, INC., Defendant, Case No. 1:19-cv-07244 (S.D. N.Y., Aug. 2, 2019) is a civil rights action against Defendant for its failure to design, construct, maintain, and operate its website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired people. The Defendant's denial of full and equal access to its website, and therefore denial of its products and services offered thereby and in conjunction with its physical location, is a violation of Plaintiff's rights under the Americans with Disabilities Act ("ADA"), says the complaint. Plaintiff seeks a permanent injunction to cause a change in Defendant's corporate policies, practices, and procedures so that Defendant's website will become and remain accessible to blind and visually-impaired consumers. Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read website content using her computer. Defendant operates its art gallery as well as the Website and advertises, markets, and operates in the State of New York and throughout the United States.[BN] The Plaintiff is represented by: Jeffrey M. Gottlieb, Esq. Dana L. Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003-2461 Phone: (212) 228-9795 Email: nyjg@aol.com danalgottlieb@aol.com DEL TACO: Discovery Ongoing in Former Calif. Employee's Suit ------------------------------------------------------------ Del Taco Restaurants, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2019, for the quarterly period ended June 18, 2019, that discovery is still ongoing in the class action suit initiated by a former employee of the company. In March 2014, a former Del Taco employee filed a purported class action complaint alleging that Del Taco has not appropriately provided meal breaks and failed to pay wages to its California hourly employees. Discovery is in process and Del Taco intends to assert all of its defenses to this threatened class action and the individual claims. Del Taco has several defenses to the action that it believes could prevent the certification of the class, as well as the potential assessment of any damages on a class basis. Del Taco said, "Legal proceedings are inherently unpredictable, and the Company is not able to predict the ultimate outcome or cost of the unresolved matter. However, based on management's current understanding of the relevant facts and circumstances, the Company does not believe that these proceedings give rise to a probable or estimable loss and should not have a material adverse effect on the Company's financial position, operations or cash flows. Therefore, Del Taco has not recorded any amount for the claim as of June 18, 2019." No further updates were provided in the Company's SEC report. Del Taco Restaurants, Inc. operates a chain of fast food restaurants. The company consists of two separate Mexican fast-food groups, 79 Del Taco units and 36 Taco Villa restaurants. The company offers Mexican food items, such as tacos, burritos, quesadillas, burgers, French fries, and soft drinks. The company was incorporated in 1983 and is based in Atlanta, Georgia. Del Taco Restaurants operates as a subsidiary of W.R. Grace & Co. DHALIWAL LABS: Perez et al Sue over Collection of Biometric Data ---------------------------------------------------------------- Roxana Perez, Araceli Hernandez, and Maria Jimenez, on behalf of themselves and similarly situated employees, known and unknown, the Plaintiffs. vs. Dhaliwal Labs North, LLC, the Defendant, Case No. 2019CH08952 (Ill. Cir., July 31, 2019), alleges that Defendant obtained confidential and sensitive unique biometric information, specifically thumbprints of the Plaintiffs and other similarly situated employees without complying with the requirements of BIPA, including: (1) failing to inform Plaintiffs and similarly situated employees in writing that such biometric information was being collected; (2) failing to inform Plaintiffs and similarly situated employees in writing of the specific purpose and length of term for which such biometric information was being collected, stored or used; and (3) obtaining from Plaintiffs and similarly situated employees a written release authorizing the collection of such biometric information, under the Illinois Biometric Information Privacy Act. According to the complaint, from approximately 2015 until October 2018, Plaintiffs were employed by Defendant as hourly employees. The Defendant instituted a policy to collect biometric information from Plaintiffs and other similarly situated employees of Defendant, specifically thumbprints, for the purpose of use on a biometric clock in and clock out system for the benefit of the employer.[BN] Attorney for the Plaintiffs is: Christopher J. Williams, Esq. NATIONAL LEGAL ADVOCACY NETWORK 53 W. Jackson Blvd, Suite 1224 Chicago, IL 60604 Telephone: (312) 795-9121 DOORDASH INC: Faces Arkin Suit over Delivery Tip Policy ------------------------------------------------------- ALAN ARKIN, individually and on behalf of all others similarly situated, Plaintiff v. DOORDASH, INC., Defendant, Case No. 1:19-cv-04357 (E.D.N.Y., July 29, 2019) alleges that the Defendant has engaged in unlawful and deceptive acts, practices and misconduct by misleading the Plaintiff and the consuming public to believe that the tip amount entered on the Defendant's app would be received as a tip by the Defendant's delivery workers for their service. The Plaintiff alleges in the complaint that the Defendant knew, and failed to disclose, that the tip amount entered by the Plaintiff and other consumers on the app was received by the Defendant, in whole or in part, and used to subsidize its cost of doing business. Had the Plaintiff and other customers known that by entering a tip on the Defendant's app they were simply contributing to the Defendant's bottom line, they never would have agreed to pay a tip using the Defendant's app. DoorDash, Inc. provides restaurant food delivery services. The Company develops technology to connect customers with merchants through an on-demand food delivery application. DoorDash serves customers in the United States. [BN] The Plaintiff is represented by: Catherine E. Anderson, Esq. Oren Giskan, Esq. GISKAN SOLOTAROFF & ANDERSON LLP 90 Broad Street 10th floor New York, NY 10004 Telephone: (212) 847-8315 E-mail: canderson@gslawny.com ogiskan@gslawny.com - and - Cory L. Zajdel, Esq. Z LAW, LLC 2345 York Road, Suite #B-13 Timonium, MD 21903 Telephone: (443) 213-1977 E-mail: clz@zlawmaryland.com EAGLE BANCORP: Glancy Prongay Files Securities Fraud Suit --------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM") reminds investors of the upcoming September 23, 2019 deadline to file a lead plaintiff motion in the class action filed on behalf of Eagle Bancorp, Inc. ("Eagle Bancorp" or the "Company") (NASDAQ: EGBN) investors who purchased securities between March 2, 2015 and July 17, 2019, inclusive (the "Class Period"). 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, at 310-201-9150, Toll-Free at 888-773-9224, or by email to shareholders@glancylaw.com or visit our website at www.glancylaw.com On December 1, 2017, Aurelius Value published a report alleging that the Company has been engaged in a pattern of conduct similar to conduct that preceded previous bank failures, including "large insider loans that finance the CEO's companies but haven't been disclosed," and "undisclosed financial entanglements between largest borrowers and the CEO." Aurelius Value also accused insiders of treating Eagle Bancorp as their own "private piggy bank." On this news, shares of Eagle Bancorp fell $16.20 per share or 24.5% to close at $49.95 per share on December 1, 2017, thereby injuring investors. Then, on July 17, 2019, the Company revealed that due to ongoing internal and government investigations regarding, "the Company's identification, classification and disclosure of related party transactions; the retirement of certain former officers and directors; and the relationship of the Company and certain of its former officers and directors with a local public official," it would be facing additional legal costs that would be rising as the investigation continues. On this news, shares of Eagle Bancorp fell $14.30 per share, or nearly 26%, to close at $39.15 per share on July 18, 2019, thereby further 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 Eagle Bancorp's internal controls and procedures and compliance policies were inadequate; (2) that the foregoing shortcoming created a foreseeable risk of heightened regulatory scrutiny and the need for the Company undertake its own internal investigations; and (3) that as a result, the Company's public statements were materially false and misleading at all relevant times. If you purchased or otherwise acquired Eagle Bancorp securities during the Class Period you may move the Court no later than September 23, 2019 to request appointment as lead plaintiff in this putative class action lawsuit. To be a member of the class action 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 action. If you wish to learn more about this class action, or if you have any questions concerning this announcement or your rights or interests with respect to the pending class action lawsuit, 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] EAGLE BANCORP: Kahn Swick Files Securities Fraud Suit ----------------------------------------------------- Kahn Swick & Foti, LLC ("KSF") and KSF partner, former Attorney General of Louisiana, Charles C. Foti, Jr., remind investors that they have until September 23, 2019 to file lead plaintiff applications in a securities class action lawsuit against Eagle Bancorp, Inc. (NasdaqCM: EGBN), if they purchased the Company's securities between March 2, 2015 and July 17, 2019, inclusive (the "Class Period"). This action is pending in the United States District Court for the Southern District of New York. What You May Do If you purchased shares of Eagle Bancorp and would like to discuss your legal rights and how this case might affect you and your right to recover for your economic loss, you may, without obligation or cost to you, contact KSF Managing Partner Lewis Kahn toll-free at 1-877-515-1850 or via email lewis.kahn@ksfcounsel.com or visit https://www.ksfcounsel.com/cases/nasdaqcm-egbn/ to learn more. If you wish to serve as a lead plaintiff in this class action, you must petition the Court by September 23, 2019. About the Lawsuit Eagle Bancorp and certain of its executives are charged with failing to disclose material information during the Class Period, violating federal securities laws. On July 17, 2019, the Company disclosed an increasing level of legal expenses resulting from ongoing internal and government investigations of "the Company's identification, classification and disclosure of related party transactions; the retirement of certain former officers and directors; and the relationship of the Company and certain of its former officers and directors with a local public official." On this news, the price of Eagle Bancorp's shares plummeted. The case is Stein v. Eagle Bancorp, Inc., 19-cv-06873. Kahn Swick & Foti, LLC, whose partners include the former Louisiana Attorney General Charles C. Foti, Jr., is a law firm focused on securities, antitrust and consumer class actions, along with merger & acquisition and breach of fiduciary litigation against publicly traded companies on behalf of shareholders. The firm has offices in New York, California and Louisiana. To learn more about KSF, you may visit www.ksfcounsel.com. Contact: Lewis Kahn, Esq. Managing Partner Kahn Swick & Foti, LLC 1100 Poydras St., Suite 3200 New Orleans, LA 70163 Tel.No.: 1-877-515-1850 Email: lewis.kahn@ksfcounsel.com [GN] EAGLE BANCORP: Kessler Topaz Files Securities Class Action ---------------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP alerts investors that a securities fraud class action lawsuit has been filed against Eagle Bancorp, Inc. (Nasdaq:EGBN) on behalf of those who purchased or otherwise acquired Eagle Bancorp securities between March 2, 2015 and July 17, 2019, inclusive (the "Class Period"). Investors who purchased Eagle Bancorp securities during the Class Period may, no later than September 23, 2019, seek to be appointed as a lead plaintiff representative of the class. For additional information or to learn how to participate in this litigation please visit www.ktmc.com/eagle-bancorp-inc-securities-class-action. According to the complaint, Eagle Bancorp operates as the bank holding company for EagleBank, Inc., which provides commercial and consumer banking services primarily in the United States. The Class Period commences on March 2, 2015, when Eagle Bancorp filed its Annual Report on a Form 10-K with the SEC, announcing Eagle Bancorp's financial and operating results for the fiscal year ended December 31, 2014. The Annual Report stated, in relevant part, that "[t]he [c]ompany's internal control over financial reporting includes those policies and procedures that pertain to the [c]ompany's ability to record, process, summarize and report reliable financial data. The internal control system contains monitoring mechanisms, and appropriate actions taken to correct identified deficiencies." The Annual Report further stated, "management believes that the [c]ompany maintained effective internal control over financial reporting as of December 31, 2014. Management's assessment concluded that there were no material weaknesses within the [c]ompany's internal control structure." According to the complaint, on July 17, 2019, Eagle Bancorp issued a press release announcing "Net Income For Second Quarter 2019 of $37.2 Million and Total Assets of $8.7 Billion." In the press release, Eagle Bancorp disclosed ongoing internal and government investigations into its disclosure of related party transactions, the retirement of certain former officers and directors, and the relationship of Eagle Bancorp and certain of its former officers and directors with a local public official. Following this news, Eagle Bancorp's stock price fell $14.30 per share, or 26.75%, to close at $39.15 per share on July 18, 2019. The complaint alleges that, throughout the Class Period, the defendants made false and/or misleading statements and/or failed to disclose that: (i) Eagle Bancorp's internal controls and procedures and compliance policies were inadequate; (ii) the foregoing shortcoming created a foreseeable risk of heightened regulatory scrutiny and the need for Eagle Bancorp to undertake its own internal investigations; and (iii) as a result, Eagle Bancorp's public statements were materially false and misleading at all relevant times. Eagle Bancorp investors who wish to discuss this securities fraud class action lawsuit and their legal options are encouraged to contact Kessler Topaz Meltzer & Check, LLP (James Maro, Jr., Esq. or Adrienne Bell, Esq.) at (844) 887-9500 (toll free) or at info@ktmc.com. Eagle Bancorp investors may, no later than September 23, 2019, seek to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check, or other counsel, or may choose to do nothing and remain an absent class member. A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. In order to be appointed as a lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. Kessler Topaz Meltzer & Check prosecutes class actions in state and federal courts throughout the country involving securities fraud, breaches of fiduciary duties and other violations of state and federal law. Kessler Topaz Meltzer & Check is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). The complaint in this action was not filed by Kessler Topaz Meltzer & Check. For more information about Kessler Topaz Meltzer & Check, please visit http://www.ktmc.com/ CONTACT: James Maro, Jr., Esq. Adrienne Bell, Esq. Kessler Topaz Meltzer & Check, LLP 280 King of Prussia Road Radnor, PA 19087 Tel.No.: (844) 887-9500 (toll free) (610) 667-7706 Email: info@ktmc.com abell@ktmc.com jmaro@ktmc.com [GN] EAGLE BANCORP: Kirby McInerney Files Securities Fraud Suit ---------------------------------------------------------- The law firm of Kirby McInerney LLP announces that a class action lawsuit has been filed in the U.S. District Court for the Southern District of New York on behalf of those who acquired Eagle Bancorp, Inc. (NASDAQ: EGBN) securities during the period from March 2, 2015 to July 17, 2019 (the "Class Period"). Investors have until September 23, 2019 to apply to the Court to be appointed as lead plaintiff in the lawsuit. The lawsuit alleges that Eagle Bancorp concealed from the investing public that: (i) its internal controls and procedures and compliance policies were inadequate; and (ii) the foregoing shortcoming created a foreseeable risk of heightened regulatory scrutiny and the need for the Company to undertake its own internal investigations. On July 17, 2019, Eagle Bancorp disclosed rising legal costs stemming from ongoing internal and government investigations of "the Company's identification, classification and disclosure of related party transactions; the retirement of certain former officers and directors; and the relationship of the Company and certain of its former officers and directors with a local public official." On this news, Eagle Bancorp's stock price fell $14.30, or 26.8%, to close at $39.10 on July 18, 2019. If you acquired Eagle Bancorp securities during the Class Period, have information, or would like to learn more about these claims, please contact Thomas W. Elrod of Kirby McInerney at 212-371-6600, by email at investigations@kmllp.com, or by filling out this contact form, to discuss your rights or interests with respect to these matters without any cost to you. Kirby McInerney is a New York-based plaintiffs' law firm concentrating in securities, antitrust, and whistleblower litigation. The firm's efforts on behalf of shareholders in securities litigation have resulted in recoveries totaling billions of dollars. Additional information about the firm can be found at Kirby McInerney's Web site http://www.kmllp.com/ Contacts: Thomas W. Elrod, Esq. Kirby McInerney LLP Tel.No.: (212) 371-6600 Website: www.kmllp.com Email: investigations@kmllp.com [GN] ECIG DISTRIBUTORS: Has Made Unsolicited Calls, Gallion Alleges -------------------------------------------------------------- STEVE GALLION, individually and on behalf of all others similarly situated, Plaintiff v. ECIG DISTRIBUTORS, INC.; DOES 1-10 Inclusive, Defendant, Case No. 5:19-cv-01411 (C.D. Cal., July 31, 2019) seeks to stop the Defendants' practice of making unsolicited calls. The case is assigned to Jesus G Bernal and referred to Magistrate Shashi H Kewalramani. Electronic Cigarettes International Group, Ltd. markets and distributes products for smokers. The Company's product allows smokers to "smoke" nicotine without the fire, flame, tobacco, tar, carbon monoxide all the other chemicals found in traditional cigarettes. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St. Suite 780, Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com ENTREVOICE VIRTUAL: Bid for Class Certification Denied ------------------------------------------------------ KEITH HOBBS and JEREMY JACKSON, individually and on behalf of others similarly situated, the Plaintiffs, vs. ENTREVOICE VIRTUAL SOLUTIONS, INC. and JOSELYN CORNEJO, the Defendants, Case No. 4:18-cv-00247-CDL (M.D. Ga.), the Hon. Judge Clay D. Land entered an order July 25, 2019: 1. dismissing Plaintiffs' claims against Cornejo for lack of personal jurisdiction; and 2. denying Plaintiffs' pending motion for class certification. If Plaintiffs wish to pursue class certification as to their claims against Entrevoice only, they must file an amended motion for class certification, the Court said.[CC] EPIC GAMES: R.A. Suit transferred to E.D. North Carolina -------------------------------------------------------- The case, R.A., a minor, by and through his Guardian, Steve Altes, on behalf of himself and all others similarly situated, the Plaintiff, vs. Epic Games, Inc., the Defendant, Case No. 2:19-cv-01488 (Filed Feb. 28, 2019), was transferred from the U.S. District Court for the Central District of California, to the U.S. District Court for the Eastern District of North Carolina (Western Division) on July 31, 2019. The Eastern District of North Carolina Court Clerk assigned Case No. 5:19-cv-00325-BO to the proceeding. The suit demands $5 million worth of damages. The case is assigned to the Hon. Judge Terrence W. Boyle. According to the complaint, Epic systematically advertises Llamas with promises that they will contain appealing and valuable loot. Like with a slot machine, Epic psychologically manipulates its young players into thinking they will "get lucky." But what Epic knows -- and what its young players do not know -- is that the Llamas almost never contain what they are touted as containing. The reasonable consumer purchasing Llamas believes that he or she will have significantly better chances of receiving valuable loot than they actually do. Worse yet, Epic fails to disclose that the odds of receiving the valuable 24 loot are next to nothing. Had Plaintiff known the odds of receiving the desired loot in Llamas were virtually nil, he would not have purchased them. The Plaintiff and the Class members have been injured by Epic's practices. The Plaintiff brings this action on behalf of himself and the putative Class. The Plaintiff seeks actual damages, punitive damages, restitution, and an injunction to prevent Epic from continuing to engage in the illegal practices.[BN] Attorneys for the Plaintiff are: Alexander Lee Simon, Esq. Joseph C Bourne, Esq. Melissa S Weiner, Esq. Daniel L Warshaw, Esq. PEARSON SIMON AND WARSHAW LLP 44 Montgomery Street Suite 2450 San Francisco, CA 94104 Telephone: (415) 433-9000 Facsimile: (415) 433-9008 - and - Jeffrey Douglas Kaliel, Esq. Sophia Goren Gold, Esq. KALIEL PLLC 1875 Connecticut Ave NW 10th Floor Washington, DC 20009 Telephone: (202) 450-4783 Attorneys for the Defendant are: Jeffrey S. Jacobson, Esq. Ryan Matthew Salzman, Esq. DRINKER BIDDLE & REATH LLP 1177 Avenue of the Americas, 41st Floor New York, NY 10036-2714 Telephone: (212) 248-3191 Facsimile: (212) 248-3141 E-mail: jeffrey.jacobson@dbr.com FELIX ENERGY: Evans Seeks Unpaid Overtime Wages, Damages -------------------------------------------------------- WILLIAM EVANS, Individually and on Behalf of All Others Similarly Situated, v. FELIX ENERGY, LLC, Defendant, Case No. 1:19-cv-02204 (D. Colo., Aug. 2, 2019) is a lawsuit seeking to recover unpaid overtime wages and other damages under the Fair Labor Standards Act ("FLSA") against Defendant. Plaintiff and the other workers like him regularly worked for Felix in excess of 40 hours each week. But these workers never received overtime for hours worked in excess of 40 hours in a single workweek. Instead of paying overtime as required by the FLSA, Felix paid these workers a daily rate with no overtime pay and improperly classified them as independent contractors. This collective action seeks to recover the unpaid overtime wages and other damages owed to these workers. Plaintiff Evans worked exclusively for Felix as a Mud Engineer from approximately January 2018 until January 2019. Felix is an oil and natural gas exploration and production company operating worldwide and throughout the United States.[BN] The Plaintiffs are represented by: Michael A. Josephson, Esq. Andrew Dunlap, Esq. JOSEPHSON DUNLAP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Phone: 713-352-1100 Facsimile: 713-352-3300 Email: mjosephson@mybackwages.com adunlap@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Phone: (713) 877-8788 Facsimile: (713) 877-8065 Email: dmoulton@brucknerburch.com FIGS INC: Torres Files Class Suit in California ----------------------------------------------- A class action lawsuit has been filed against FIGS, Inc. The case is styled as Avegail Torres, on behalf of herself and all others similarly situated, and on behalf of the General Public, Plaintiff v. FIGS, Inc. and Does 1-10, Defendants, Case No. 5:19-cv-01432 (C.D. Cal., Aug. 1, 2019). The case type is stated as Other Fraud - Diversity-Fraud. FIGS, INC. engages in the design and production of scrubs for men and women.[BN] The Plaintiff is represented by: David C Wright, Esq. McCune Wright Arevalo LLP 3281 East Guasti Road Suite 100 Ontario, CA 91761 Tel: (909) 557-1250 Fax: (909) 557-1275 Email: dcw@mccunewright.com GASTRO BAR: Rios Seeks Unpaid Wages for Food Service Workers ------------------------------------------------------------ MIGUEL RIOS, Individually and on behalf of others similarly situated, the Plaintiff, vs. GASTRO BAR & RESTAURANT CORP. c/o TRYP HOTEL, TRYP HOTELS WORLDWIDE, INC., d/b/a TRYP HOTEL NYC and JOHN SHARMA, the Defendants, Case No. 1:19-cv-07146 (S.D.N.Y., July 31, 2019), seeks to recover upnaid wages and related damages for unpaid wages and misappropriated tips while employed by the Defendants, pursuant to the Fair Labor Standards Act and the New York Labor Law. According to the complaint, the Defendants have failed to compensate their food service workers at the federal and state minimum wage, and unlawfully misappropriated a portion of their tips.[BN] Attorneys for the Plaintiff and the Putative Class are: Darren P.B. Rumack, Esq. THE KLEIN LAW GROUP 39 Broadway Suite 1530 New York, NY 10006 Telephone: (212) 344 9022 Facsimile: (212) 344 0301 GEO GROUP: Underpays Security Personnel, Azpeitia Suit Alleges -------------------------------------------------------------- KRYSTAL AZPEITIA, individually and on behalf of all others similarly situated, Plaintiff v. THE GEO GROUP, INC.; GEO CORRECTIONS AND DETENTION, LLC; and DOES 1- 100, inclusive, Defendants, Case No. 2:19-cv-06578 (C.D. Cal., July 30, 2019) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, provide accurate wage statements, and reimburse necessary business expenses. The Plaintiff Azpeitia was employed by the Defendants as security personnel. The GEO Group, Inc. operates private correctional facilities located mostly in the United States, but also in Australia, Canada, New Zealand, and South Africa. The Company offers educational programs, vocational training, and rehabilitation therapy services. [BN] The Plaintiff is represented by: James R. Patterson, Esq. Jennifer M. French, Esq. PATTERSON LAW GROUP APC 1350 Columbia St., Suite 603 San Diego, CA 92101 Telephone: (619) 756-6990 Facsimile: (619) 756-6991 E-mail: jim@pattersonlawgroup.com jenn@pattersonlawgroup.com GLOCK INC: Melian Sues Over Defective Handguns ---------------------------------------------- DAVID MELIAN; CHRISTOPHER GEORGE, on their own behalf and on behalf of all similarly situated individuals Plaintiffs, v. GLOCK, INC, an Georgia Corporation; GLOCK Ges.m.b.H, an Austrian entity; JOHN and JANE DOES I through V; ABC CORPORATIONS I-X, XYZ PARTNERSHIPS, SOLE PROPRIETORSHIPS and/or JOINT VENTURES I-X, GUN COMPONENT MANUFACTURERS I-V, Defendants, Case No. 2:19-cv-04872-GMS (D. Ariz., Aug. 1, 2019) is a class action on behalf of Plaintiffs, and all other individuals who own certain handguns (the "Class Guns") which were designed, manufactured, assembled, imported, and marketed by Glock Ges.m.d.H, and Glock, Inc., and distributed and sold throughout the United States. According to the complaint, all of the Class Guns contain at least one defect that renders the pistols unreasonably dangerous and unfit for their intended use. Each gun contains a feed ramp that is too long and goes into the chamber causing a lack of chamber support for the round/casing which causes the force of a fired round to exert unreasonable pressures upon the round/casing in the 6 o'clock position (the "Unsupported Chamber Defect" or "Defect"). This defect creates a "blow out" or a "kaboom" which is a dangerous situation which causes the round/casing to separate and dislodge a piece of the casing at the 6 o'clock position. The Glock Defendants' representations that the Class Guns are safe for use are deceptive and false, and the Class Guns were sold while omitting information that would be material to a reasonable consumer, says the complaint. The Class Guns are defective and unreasonably dangerous because the common design of the Class Guns will not prevent and has not prevented a "blow out" or a "Kaboom" which can, and does, result in personal injury. The Defects result from the inadequate design, manufacturing, and testing of the Class Guns, and the continued failure of the Glock Defendants to remedy the Defects. Despite actual knowledge of the Defects, the Glock Defendants have never remedied either Defect, have never issued an effective and complete warning to the public or recall of the Class Guns and the Glock Defendants continue to falsely represent to the public that the Class Guns are safe, adds the complaint. Plaintiffs own Class Guns which was designed, manufactured, assembled, to be tested, marketed, imported, warranted, distributed, and sold by the Glock Defendants. Glock, Inc. is a Georgia corporation that is licensed to and doing business in the State of Arizona and does business in Maricopa County.[BN] The Plaintiffs are represented by: Craig M. Nicholas, Esq. Alex Tomasevic, Esq. NICHOLAS & TOMASEVIC, LLP 225 Broadway, 19th Floor San Diego, CA 92101 Phone: (619) 325-0492 Facsimile: (619) 325-0496 Email: cnicholas@nicholaslaw.org atomasevic@nicholaslaw.org - and - Robert K. Lewis, Esq. Christopher A. Treadway, Esq. LEWIS LAW FIRM, PLC 2302 N 3rd Street Phoenix, AR 85004 Phone: (602) 889-6666 Fax: (602) 252-1446 Email: rob@lewisandpokora.com chris@lewisandpokora.com - and - Amy M. Pokora, Esq. POKORA LAW, PLC 2302 N 3rd Street Phoenix, AR 85004 Phone: (602) 889-6666 Fax: (602) 252-1446 Email: amy@lewisandpokora.com GRENNING GALLERY: Picon Asserts Violation under Disabilities Act ---------------------------------------------------------------- Grenning Gallery, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Yelitza Picon on behalf of herself and of all other persons similarly situated, Plaintiff v. Grenning Gallery, Inc., Defendant, Case No. 1:19-cv-07221 (S.D. N.Y., Aug. 1, 2019). Grenning Gallery showcases artists whose works utilize traditional methods created by the great masters.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Tel: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com HELIX ENERGY: McKnight Sues Over Unpaid Overtime Wages ------------------------------------------------------ VANTRERIUS MCKNIGHT, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. HELIX ENERGY SOLUTIONS GROUP, INC., Defendant, Case No. 4:19-cv-02852 (S.D. Tex., Aug. 1, 2019) is a collective action and lawsuit under the Fair Labor Standards Act of 1938 ("FLSA"), on behalf of Plaintiff and all other similarly situated employees to recover unpaid overtime wages from Defendant. During Plaintiff's employment with Helix, he regularly worked in excess of forty hours per week. In fact, Plaintiff worked a minimum of 84 hours per week each week that he was on rotation. However, Helix did not pay Plaintiff overtime "at a rate not less than one and one-half times the regular rate at which he was employed." Instead, Helix paid Plaintiff a flat sum for each day's work regardless of the number of hours he worked in a workweek, says the complaint. Plaintiff McKnight was employed by Helix as steward from approximately 2014 to 2018. McKnight continues to work for Helix as a roustabout from 2018 to present. Helix provides subsea construction, inspection, maintenance, repair and salvage services to customers in the offshore natural gas and oil industry.[BN] The Plaintiff is represented by: Melissa Moore, Esq. Curt Hesse, Esq. Bridget Davidson, Esq. MOORE & ASSOCIATES Lyric Centre 440 Louisiana Street, Suite 675 Houston, TX 77002 Phone: (713) 222-6775 Facsimile: (713) 222-6739 HOME DEPOT: Moshtagh Sues Over Unpaid Regular, Overtime Wages ------------------------------------------------------------- STEVE MOSHTAGH, an individual, on behalf of himself and others similarly situated, Plaintiff, v. THE HOME DEPOT U.S.A., Inc., a Delaware Corporation; Defendant, Case No. 2:19-cv-01205 (Wash. Super. Ct., King Cty., Aug. 1, 2019) is a class action against Defendant to recover unpaid regular wages, unpaid overtime wages, penalties, interest, and attorneys' fees and costs, and to obtain injunctive relief. The Plaintiff seeks to redress Home Depot's unlawful employment policies and practices of (1) failing to provide part-time hourly employees statutorily required meal and rest breaks; (2) failing to compensate hourly employees for mandatory work done before and after their scheduled shifts; and (3) making unlawful payroll deductions to fund The Homer Fund, a Home Depot-run charity. Plaintiff Steve Moshtagh worked at the Home Depot store in Bothell, Washington from approximately February 2016 to the present. Home Depot is the world's largest home improvement retailer.[BN] The Plaintiff is represented by: Peter D. Stutheit, Esq. STUTHEIT KALIN LLC 1 SW Columbia, Suite 1850 Portland, OR 97258 Phone: (503) 493-7488 Email: peter@stutheitkalin.com - and - Donald w. Heyrich, Esq. Jason A. Rittereiser, Esq. Rachel M. Emens, Esq. Henry Brudney, Esq. HKM EMPLOYMENT ATTORNEYS LLP 600 Stewart Street, Suite 901 Seattle, WA 98101 Phone: 206-838-2504 Email: dheyrich@hkm.com jrittereiser@hkm.com remens@hkm.com hbrudney@hkm.com HOUND DOGS TOWING: Muncy Sues Over Unpaid Wages ----------------------------------------------- James T. Muncy, Jr., Christine Wheeler individually and on behalf of other members of the general public similarly situated, Plaintiffs, v. Hound Dogs Towing and Recovery, Josh Ingold d/b/a Hound Dogs Towing and Recovery, Defendants, Case No. 2:19-cv-03324-ALM-KAJ (S.D. Ohio, Aug. 1, 2019) is an action seeking all available relief, including compensation, liquidated damages, attorneys' fees, and costs, pursuant the Fair Labor Standards Act, Ohio's Minimum Fair Wage Standards Act, and the Ohio Prompt Pay Act. Plaintiffs and the Putative Class Members routinely work (and worked) in excess of 40 hours per workweek but were not paid overtime of at least one and one-half their regular rates for all hours worked in excess of 40 hours per workweek, says the complaint. Plaintiffs worked for Defendants within the meaning of the FLSA and the Ohio Acts. HDTR is trade name registered with the Ohio Secretary of State by Defendant Ingold who operates HDTR as a towing and transportation of vehicles business located at 2918 Parsons Ave., Columbus, Ohio, 43207.[BN] The Plaintiffs are represented by: Matthew J.P. Coffman, Esq. Coffman Legal, LLC 1550 Old Henderson Road, Ste. 126 Columbus, OH 43220 Phone: 614-949-1181 Fax: 614-386-9964 Email: mcoffman@mcoffmanlegal.com - and - Peter Contreras, Esq. CONTRERAS LAW, LLC 1550 Old Henderson Road, Ste. 126 Columbus, OH 43220 Phone: 614-787-4878 Fax: 614-923-7369 Email: peter.contreras@contrerasfirm.com HYUNDAI MOTOR: Court Narrows Claims in Defective Powertrain Suit ---------------------------------------------------------------- The United States District Court for the District of New Jersey issued an Opinion granting in part and denying in part Defendants' Motion to Dismiss in the case captioned JAN SCHECHTER, on behalf of himself and all others similarly situated, Plaintiff, v. HYUNDAI MOTOR AMERICA and HYUNDAI MOTOR COMPANY, Defendants. Civil Action No. 18-13634 (FLW). (D.N.J.). Plaintiff Jan Schechter (Plaintiff) brings this putative class action, alleging that Defendants fraudulently concealed the fact that certain of its vehicles contained a defective powertrain component. Plaintiff asserts the following claims: fraud (Count 1) negligent misrepresentation (Count 2) breach of the express warranty (Count 3) breach of the implied warranty (Count 4) violation of the Magnuson-Moss Warranty Act (Count 5) unjust enrichment (Count 6) violation of the New Jersey Consumer Fraud Act (Count 7) violation of California's Consumer Legal Remedies Act (Count 8) and violation of California's Unfair Competition Law (Count 9). STANDING In his Complaint, the Plaintiff seeks to represent a nationwide class, as well as two sub-classes of consumers in New Jersey and California, under their respective state's laws. Confusingly, however, Plaintiff also asserts claims under New Jersey and California law with respect to the nationwide class, without having performed the requisite choice of law analysis for the purpose of determining which state has the most significant relationship to the nationwide class claims. In that regard, the claims of the nationwide class are either governed by New Jersey or California law, not both. California Sub-class To demonstrate standing, a plaintiff must establish: (1) an injury-in-fact (2) a sufficient causal connection between the injury and the conduct complained of and (3) a likelihood that the injury will be redressed by a favorable decision. Here, Plaintiff asserts claims under the laws of California, and seeks to represent that state's citizens, where he neither resides nor suffered any injury. Plaintiff, however, cannot do so, as he lacks standing to assert these claims. Therefore, Plaintiff's California claims on the behalf of the sub-class of California residents are dismissed. Non-leased Class Vehicles Citing this Court's decision in Lieberson v. Johnson & Johnson Consumer Cos., 865 F.Supp.2d 529 (D.N.J. Sept. 21, 2011), Defendants next contend that Plaintiff is precluded from bringing claims relating to the following class vehicles: the 2017-2018 Sante Fe Sport 2.0T and the 2017-2018 Sante Fe Sport 3.3L. He did not lease these particular makes and models, and, as such, he did not suffer an injury-in-fact with respect to those models. In response, Plaintiff cites a line of district court cases for the proposition that this issue should be more appropriately decided within the context of a motion for class certification, not a dismissal motion. Plaintiff additionally maintains that he may assert claims as to all Class Vehicles, as long as he demonstrates that they are sufficiently similar. However, the Court disagrees, because Plaintiff has failed to adequately allege that the Class Vehicles are sufficiently similar. Plaintiff is correct that he may have standing to assert claims regarding other models of vehicles that he did not lease, so long as all Class Vehicles, including his own, have sufficiently similar powertrain components and common defects. Indeed, a plaintiff may have standing to assert claims on behalf of putative class members regarding products he did not personally purchase where (1) the basis of the claims is the same (2) the products are closely related and (3) the claims are against the same defendants. Based on these factors, Plaintiff lacks standing to assert claims on behalf of class members who only owned or leased the 2017-2018 Sante Fe Sport 2.0T and the 2017-2018 Sante Fe Sport 3.3. Plaintiff leased a 2017 Hyundai Sante Fe Sport 2.4. Indeed, Plaintiff fails to adequately allege that the Class Vehicles all have similar powertrain components and defects, such that all three vehicular models are so closely related that standing would be conferred upon Plaintiff. Without these allegations, all claims related to the 2017-2018 Sante Fe Sport 2.0T and the 2017-2018 Sante Fe Sport 3.3 are dismissed for lack of standing on the part of Plaintiff. Plaintiff can only represent class members who have leased or purchased the 2017 Hyundai Sante Fe Sport 2.4, his model vehicle. Omission-Based Claims In the Complaint, Plaintiff asserts NJCFA, common law fraud, and negligent misrepresentation claims. Moreover, although Plaintiff, in his pleading, references affirmative misrepresentations which Defendants purportedly made, Plaintiff's brief only discusses Defendants' alleged failure to disclose the defective nature of the Class Vehicles before the date on which he leased his vehicle. Thus, because, according to Plaintiff, each of these claims are based only upon omissions of material facts, rather than the affirmative misrepresentations, the Court will not consider misrepresentations as the basis for Plaintiff's fraud and negligent misrepresentation claims. NJCFA Count Seven of the Complaint asserts a violation of the NJCFA, on the basis of Defendants having knowingly concealed, suppressed, and/or omitted the existence of the Powertrain Defect in the Class Vehicles at the time of sale or lease and at all relevant times thereafter. To state a claim under the NJCFA, a plaintiff must allege three elements: (1) unlawful conduct by the defendant (2) an ascertainable loss by the plaintiff and (3) a causal relationship between the unlawful conduct and the ascertainable loss. Unlawful conduct falls into three general categories: affirmative acts, knowing omissions, and regulation violations. Here, Plaintiff asserts a single unlawful act of a material omission: Defendants concealed the Powertrain Defect from the owners and lessees of the Class Vehicles at the time of sale or lease. To establish Defendants' knowledge of the Powertrain Defect, Plaintiff primarily relies on anonymous consumer complaints posted online and Defendants' issuance of three TSBs, which were posted or issued both before and after Plaintiff's lease. First, Plaintiff fails to allege an adequate basis to support the fact that Defendants were aware of the anonymous consumer complaints posted online. Indeed, Plaintiff merely asserts that these complaints demonstrate that the Powertrain Defect is widespread and dangerous, without alleging that Defendants either monitored or tracked the NHTSA's website. In a similar vein, Plaintiff does not allege that the NHTSA informed Defendants about the posted complaints. Absent such allegations, consumer complaints on third-party websites are insufficient to support a manufacturer's knowledge of an alleged defect. Second, even if the Court were to presume that Defendants were aware of the online postings, the consumer complaints and the TSBs also do not indicate that Defendants had knowledge of the Powertrain Defect as to Plaintiff's model vehicle at the time of Plaintiff's lease. Approximately half of the consumer complaints and two of the TSBs were neither posted nor issued before October 2016, the date on which Plaintiff leased his vehicle. Clearly, Plaintiff cannot rely on events which occurred after his lease, in order to establish that Defendants were aware of the alleged defect during that relevant timeframe. Here, Plaintiff alleges that he has suffered an ascertainable loss, since he was mislead into leasing his Class Vehicle which was worth less than promised as a result of the Powertrain Defect. According to Plaintiff, he has suffered an out-of-pocket loss constituting the difference between the value of the vehicle with a fully functioning powertrain versus the value of the vehicle with the Powertrain Defect. Indeed, had Plaintiff known the true nature of the vehicle as he alleges, he would not have leased the vehicle on the same terms and would have paid less or he would have leased a comparable vehicle instead. However, Plaintiff's out of pocket loss theory fails. As a preliminary matter, the Court questions whether Plaintiff would have leased a vehicle, in the first instance, with a faulty powertrain, particularly since he alleges that this defect creates a significant safety hazard. Notwithstanding Plaintiff's confounding theory, he has failed to plead an ascertainable loss that is sufficiently quantifiable or measurable in nature. In that connection, Plaintiff has not provided any information with respect to the terms of his leased vehicle, including its price; nor has he alleged any facts that describe what a hypothetical lease for a vehicle with a defective powertrain would be, in order for the Court to ascertain, or even reasonably estimate, the difference in value between Plaintiff's lease and the alleged lease which he would have executed. Rather, Plaintiff merely contends that he would have paid less if he was informed about the condition of his Class Vehicle. With nothing more, this theory of loss is purely based on conjecture. Alternatively, in the event Plaintiff would have have leased a different vehicle, he does not identify a comparable vehicle or allege its price. These allegations cannot satisfy the ascertainable loss element, as Plaintiff has not shown that his alleged out of pocket losses are readily quantifiable. The Court finds that Plaintiff has failed to plead unlawful conduct or ascertainable loss, and, therefore, fails to state an individual claim under the NJCFA. In lieu of dismissal, however, Plaintiff shall be given leave to amend his Complaint to cure the deficiencies discussed above. Common Law Fraud by Omission Count One of the Complaint asserts a common law fraud by omission claim, on the basis of Defendants' failure to disclose that the powertrain system in the class vehicles is defective. Pursuant to New Jersey law, a plaintiff must allege five elements to succeed on a common law fraud claim: (1) a material misrepresentation or omission of a presently existing or past fact (2) knowledge or belief by the defendant of its falsity (3) an intention that the other person rely on it (4) reasonable reliance thereon by the other person and (5) resulting damages. Although fraud claims are subject to the strictures of Rule 9(b), courts within this district have held that the heightened pleading standard is somewhat relaxed in a case based on a fraudulent omission. As a threshold issue, Plaintiff fails to adequately allege that Defendants had a duty to disclose the Powertrain Defect. In that regard, a plaintiff may only assert an omission-based fraud claim if the defendant possesses a duty to disclose. As the Third Circuit has clarified, where a claim for fraud is based on silence or concealment, New Jersey courts will not imply a duty to disclose, unless such disclosure is necessary to make a previous statement true or the parties share a special relationship. Here, Plaintiff's common law fraud claim solely arises from Defendants' alleged failure to disclose the Powertrain Defect. Indeed, in his brief, Plaintiff clarifies that his fraud claim is based on a fraudulent omission, as opposed to a misrepresentation.Nevertheless, Plaintiff's Complaint is entirely devoid of facts to support that he shared any one of the three recognized special relationships with Defendants, in order to establish a duty to disclose on their part. In fact, New Jersey Courts have found no special relationship between individual consumers and automobile manufacturers that would impose a duty to disclose on the manufacturers within the context of omission-based fraud claims. Rather than allege special relationship, Plaintiff appears to argue that a duty to disclose was created on the sole basis of Defendants' knowledge with respect to the alleged defective powertrain. However, a party's superior knowledge is insufficient to impose a duty to disclose in New Jersey. Nonetheless, even if Plaintiff adequately alleged a duty to disclose, his common law fraud claim would fail for the same reasons as his NJCFA claim. More specifically, Plaintiff's fraud claim is entirely based upon Defendants' alleged concealment of the defective nature of the Class Vehicles, but, for the reasons previously described, he has failed to adequately allege that Defendants omitted a material fact with respect to the Powertrain Defect. Therefore, Plaintiff's common law fraud claim is likewise dismissed. Negligent Misrepresentation Count Two of the Complaint asserts a claim for negligent misrepresentation, arising from Defendants alleged failure to disclose the Powertrain Defect and its corresponding safety risk. Under New Jersey law, to assert a claim for negligent misrepresentation, a plaintiff must allege the following three elements: (1 ) the defendant negligently made an incorrect statement of a past or existing fact (2) that the plaintiff justifiably relied on it and (3) that his reliance caused a loss or injury. Here, Plaintiff's negligent misrepresentation claim cannot stand for multiple reasons. First, as stated previously, New Jersey courts have found that a special relationship between an individual consumer and a vehicle manufacturer creating a duty to disclose does not exist. It is, therefore, incumbent upon Plaintiff to identify the circumstances under which good faith and common decency would arise. On that point, Plaintiff fails to plead such a transaction, as the Complaint is entirely silent with respect to this requirement. Rather, in a conclusory fashion, Plaintiff alleges in his brief that Defendants were obligated to act in good faith by disclosing the Powertrain Defect at the time of sale or lease. However, Plaintiff cannot advance this position, for the first time, in his opposition brief. Indeed, it is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss. In any event, Plaintiff has not alleged facts to support his position that the circumstances of this case somehow created a duty to disclose due to good faith and common decency. As such, Plaintiff's negligent misrepresentation claim is dismissed. Unjust Enrichment Count Six of the Complaint asserts a claim for unjust enrichment, because Defendants unjustly profited from the lease and sale of the Class Vehicles at inflated prices, at the expense of Plaintiff. As a preliminary issue, New Jersey law does not recognize unjust enrichment as an independent tort cause of action. Rather, unjust enrichment requires that plaintiff show that he expected remuneration from the defendant at the time it performed or conferred a benefit on defendant. Here, the conduct underlying Plaintiff's claim of unjust enrichment sounds in tort. In the Complaint, Plaintiff does not allege that he either performed or conferred a benefit upon Defendants pursuant to a quasi-contractual relationship, for which he expected remuneration in return. Rather, Plaintiff only alleges tort-based claims which arise from Defendants' alleged unlawful, unjust and inequitable conduct, i.e., their failure to disclose and concealment of the Powertrain Defect. Clearly, Plaintiff could not have anticipated or expected remuneration as a result of Defendants' alleged fraudulent conduct. Plaintiff's unjust enrichment claim fails on this basis alone. . Breach of Warranty Express In Count Three, Plaintiff asserts a breach of express warranty claim, alleging that Defendants have failed to provide Plaintiff with a meaningful remedy for the Powertrain Defect. To adequately plead a breach of express warranty claim under New Jersey law, a plaintiff must allege the following four elements: (1) a contract between the parties (2) a breach of that contract (3) damages flowing therefrom and (4) that the party stating the claim performed its own contractual obligations. Here, the parties do not dispute that Plaintiff's vehicle is covered by a ten-year/100,000-mile powertrain warranty, requiring Defendants to repair or replace specific components of the engine, transmission and transaxle, or that the alleged powertrain defect manifested itself within the warranty period. Plaintiff alleges that he brought his vehicle to an authorized Hyundai dealership on two separate occasions, when he experienced problems that related to power loss and acceleration. Specifically, Plaintiff explains that his vehicle loses power while driving, you can hit the gas[,] the RPMS will go high and the vehicle will not move and he also reported a five to six second delay in acceleration. Without addressing the undisputed powertrain warranty, Defendants, nonetheless, contend that Plaintiff has not alleged a breach. In that regard, Defendants argue that Plaintiff's Complaint fails to address a series of specific questions that relate to his interactions with the dealer, during the dates on which he brought his vehicle in for repair. However, Plaintiff's allegations need not be pled with a level of particularity that Defendants advocate; indeed, a breach of the express warranty claim is not subject to the heightened pleading standard of Rule 9(b). Thus, because Plaintiff asserts that he informed Defendants about his vehicle's defective powertrain, without Defendants having remediated the issue in accordance with the provisions of the warranty, Plaintiff has adequately alleged a breach. Implied Warranty Count Five asserts a claim for breach of the implied warranty. Plaintiff alleges that the Class Vehicles, when sold or leased and at all times thereafter, were not in merchantable condition and are not fit for their ordinary purpose of providing safe and reliable transportation. New Jersey has adopted the Uniform Commercial Code, which provides that a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. The implied warranty of merchantability means that the thing sold is reasonably fit for the general purpose for which it is manufactured and sold. However, the implied warranty of merchantability does not impose a general requirement that goods precisely fulfill the expectation of the buyer. Instead, it provides for a minimum level of quality. Under New Jersey law, as applied to automobiles, the implied warranty of merchantability is simply a guarantee that they will operate in a safe condition and substantially free of defects and, therefore, where a car can provide safe, reliable transportation, it is generally considered merchantable. Notwithstanding these well-established principles, Defendants contend that the ordinary purpose of a vehicle is simply to provide transportation, regardless of whether the vehicle can be driven in a safe and reliable manner. Therefore, the Court finds that a breach of the implied warranty can be based on an alleged safety defect of a vehicle. Next, regarding safety, Plaintiff alleges that the powertrain defect occurs unexpectedly and caused the following problems while driving: significantly delayed acceleration (including but not limited to delayed acceleration when turning or merging onto a road or highway), loss of power, rough shifting, jerking, lurching, and/or engine revving associated with the delayed acceleration. Indeed, according to Plaintiff, his own vehicle loses power while driving, and its acceleration suffers from a delayed response which sometimes requires more than five to six seconds before initiating. Because these conditions constitute serious safety concerns, Plaintiff has sufficiently alleged that his vehicle is unfit for the ordinary purpose of providing transportation in a safe and reliable manner. That Plaintiff does not say that he is unable or unwilling to use his vehicle, as Defendants argue, is not relevant to my inquiry on this motion. The Court finds that Plaintiff has adequately alleged a breach of the implied warranty. Magnuson-Moss Warranty Act Count 5 asserts a violation of the Magnuson-Moss Warranty Act (MMWA), on the basis of Defendants' failure to comply with their written and implied warranties. The Magnuson-Moss Warranty Act provides that a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief. Magnuson-Moss claims based on breaches of express and implied warranties under state law depend upon those state law claims. Although Plaintiff has successfully pled express and implied warranty claims, his MMWA claim is not viable. Indeed, as Defendants argue, Plaintiff has not complied with the alternative dispute resolution procedure available through the Better Business Bureau's BBB Auto Line, which is explicitly set forth in the powertrain warranty. Here, Plaintiff concedes that he did not comply with the dispute resolution procedures set forth in the express warranty. Citing one out-of-circuit, non-binding district court decision, Plaintiff contends that he was not required to pursue the informal resolution procedure, because it would have been futile. While Plaintiff does not cite, nor has this Court found, any decisions within this circuit that recognize such an exception, to the extent that it is applicable, Plaintiff has not alleged futility. Accordingly, Plaintiff's MMWA claim is dismissed. Accordingly, the Defendants' motion to dismiss is granted in part and denied in part. The Plaintiff's NJCFA, MMWA, negligent misrepresentation, California's Consumer Legal Remedies Act, and California's Unfair Competition Law claims are dismissed without prejudice, as well as any claims which are asserted in connection with the Class Vehicles, i.e., the 2017-2018 Sante Fe Sport 2.0T and the 2017-2018 Sante Fe Sport 3.3L vehicles. The Plaintiff is given leave to amend the Complaint only as to his NJCFA and negligent misrepresentation claims within 20 days from the date of the Order accompanying this Opinion. A full-text copy of the District Court's July 29, 2019 Opinion is available at https://tinyurl.com/yywpjjg9 from Leagle.com. JAN SCHECHTER, Plaintiff, represented by FREDERICK JOHN KLORCZYK, III -- fklorczyk@bursor.com -- BURSOR & FISHER PA. HYUNDAI MOTOR AMERICA & HYUNDAI MOTOR COMPANY, Defendants, represented by JEREMY HALE ERSHOW -- jershow@jenner.com -- JENNER & BLOCK LLP. IDEANOMICS INC: Howard G. Smith Files Securities Fraud Suit ----------------------------------------------------------- Law Offices of Howard G. Smith reminds investors of the upcoming Sept. 17, 2019 deadline to file a lead plaintiff motion in the class action filed on behalf of investors who purchased Ideanomics Inc. (NASDAQ: IDEX) securities between May 15, 2017 and November 13, 2018, inclusive (the "Class Period"). Investors suffering losses on their Ideanomics investments are encouraged to contact the Law Offices of Howard G. Smith to discuss their legal rights in this class action at 888-638-4847 or by email to howardsmith@howardsmithlaw.com On November 14, 2018, the Company announced that it would "phase out [its] oil trading and consumer electronics businesses, with the intention to fully divest these assets in the near future." It also disclosed that it did "not anticipate meeting [its] EBITDA guidance of $35 million for fiscal year 2019" due to "costs associated with building out [its] U.S. infrastructure and hiring [its] new executive team." On this news, the Company's share price fell $1.59, or more than 48%, to close at $1.67 on November 14, 2018, 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 costs associated with building out Ideanomics' U.S. infrastructure and hiring its new executive team were negatively impacting the Company's bottom line performance; (2) that, as a result, Ideanomics was highly unlikely to meet its 2018 EBITDA guidance; (3) that Ideanomics' margins in its oil trading and consumer electronics businesses were too low for those businesses to remain viable; 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 purchased shares of Ideanomics during the Class Period you may move the Court no later than September 17, 2019 to ask the Court to appoint you as lead plaintiff if you meet certain legal requirements. To be a member of the class action 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 action. If you wish to learn more about this class action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact: Howard G. Smith, Esquire Law Offices of Howard G. Smith 3070 Bristol Pike, Suite 112 Bensalem, Pennsylvania 19020 Telephone: (215) 638-4847 Toll-free: (888) 638-4847 E-mail: howardsmith@howardsmithlaw.com http://www.howardsmithlaw.com[GN] 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. (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. [GN] INDOCHINO APPAREL: Freeman Sues Over Deceptive Business Practices ----------------------------------------------------------------- JEFFREY FREEMAN, on behalf of himself and all others similarly situated, Plaintiff, v. INDOCHINO APPAREL, INC.; INDOCHINO APPAREL (US), INC.; and DOES 1 through 100, inclusive, Defendants, Case No. 3:19-cv-04539 (N.D. Cal., Aug. 2, 2019) is a class action targeting Defendants for their business practice of advertising perpetual sales with fictitious reference prices and corresponding phantom discounts on men's clothing. Specifically, Defendants engage in a systematic and pervasive false reference pricing scheme by deceptively advertising through their website, in stores, via e-mails and on social media that their men's clothing is "on sale" and was previously sold at a substantially higher price when, in fact, the clothing has always been sold at or near the falsely claimed "sale" price. As a result of this illicit pricing scheme, Defendants violated and continue to violate California consumer protection laws. Defendants not only breached their written contract with purchasers of the Clothing; but also breached their express warranty under the California Commercial Code Section 2313; violated the California Consumers Legal Remedies Act; violated the California False Advertising Law; and violated the California Unfair Competition Law based on fraudulent, unlawful and unfair acts and practices, says the complaint. Plaintiff purchased the Clothing in reliance on Defendants' false representations that the Clothing was "on sale" and of substantially higher quality and value than the actual quality and value of the Clothing. Indochino Apparel, Inc. is a Canadian corporation with its principal places of business in Vancouver, BC, Canada. It advertises, markets and sells the Clothing.[BN] The Plaintiff is represented by: Eric Somers, Esq. Ryan Berghoff, Esq. LEXINGTON LAW GROUP 503 Divisadero Street San Francisco, CA 94117 Phone: (415) 913-7800 Facsimile: (415) 759-4112 Email: esomers@lexlawgroup.com rberghoff@lexlawgroup.com JOHNSON & JOHNSON: 1,500 Suits Filed Hip Resurfacing System ----------------------------------------------------------- Johnson & Johnson said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2019, for the quarterly period ended June 30, 2019, that as of June 30, 2019, in the United States there were approximately 1,500 plaintiffs with direct claims in pending lawsuits regarding injuries allegedly due to the DePuy ASR(TM) XL Acetabular System and DePuy ASR(TM) Hip Resurfacing System. In August 2010, DePuy Orthopaedics, Inc. (DePuy) announced a worldwide voluntary recall of its ASR(TM) XL Acetabular System and DePuy ASR(TM) Hip Resurfacing System used in hip replacement surgery. Claims for personal injury have been made against DePuy and Johnson & Johnson. The number of pending lawsuits is expected to fluctuate as certain lawsuits are settled or dismissed and additional lawsuits are filed. Cases filed in federal courts in the United States have been organized as a multi-district litigation in the United States District Court for the Northern District of Ohio. Litigation has also been filed in countries outside of the United States, primarily in the United Kingdom, Canada, Australia, Ireland, Germany and Italy. In November 2013, DePuy reached an agreement with a Court-appointed committee of lawyers representing ASR Hip System plaintiffs to establish a program to settle claims with eligible ASR Hip patients in the United States who had surgery to replace their ASR Hips, known as revision surgery, as of August 31, 2013. DePuy reached additional agreements in February 2015 and March 2017, which further extended the settlement program to include ASR Hip patients who had revision surgeries after August 31, 2013 and prior to February 15, 2017. This settlement program has resolved more than 10,000 claims, therefore bringing to resolution significant ASR Hip litigation activity in the United States. However, lawsuits in the United States remain, and the settlement program does not address litigation outside of the United States. In Australia, a class action settlement was reached that resolved the claims of the majority of ASR Hip patients in that country. In Canada, the Company has reached agreements to settle two pending class actions which have been approved by the Quebec Superior Court and the Supreme Court of British Columbia. The British Columbia order is currently the subject of an appeal. The Company continues to receive information with respect to potential additional costs associated with this recall on a worldwide basis. The Company has established accruals for the costs associated with the United States settlement program and DePuy ASR(TM) Hip-related product liability litigation. As of June 30, 2019, in the United States there were approximately 1,500 plaintiffs with direct claims in pending lawsuits regarding injuries allegedly due to the DePuy ASR(TM) XL Acetabular System and DePuy ASR(TM) Hip Resurfacing System. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. It operates in three segments: Consumer, Pharmaceutical, and Medical Devices. The company was incorporated in 1887 and is based in New Brunswick, New Jersey. JOHNSON & JOHNSON: Agreement in XARELTO(R) Suit Finalized --------------------------------------------------------- Johnson & Johnson said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2019, for the quarterly period ended June 30, 2019, that an agreement in the class action suit involving XARELTO(R), has been finalized and executed establishing a United States settlement program. Claims for personal injury arising out of the use of XARELTO(R), an oral anticoagulant, have been made against Janssen Pharmaceuticals, Inc. (JPI); Johnson & Johnson; and JPI's collaboration partner for XARELTO(R) Bayer AG and certain of its affiliates. Cases filed in federal courts in the United States have been organized as a multi-district litigation in the United States District Court for the Eastern District of Louisiana. In addition, cases have been filed in state courts across the United States. Many of these cases have been consolidated into a state mass tort litigation in Philadelphia, Pennsylvania and in a coordinated proceeding in California. Class action lawsuits also have been filed in Canada. In March 2019, the Company announced an agreement in principle to the settle the XARELTO(R) cases in the United States; such agreement was finalized and executed in May 2019 establishing a United States settlement program. The Company has established accruals for the costs associated with the United States settlement program and XARELTO(R) related product liability litigation. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. It operates in three segments: Consumer, Pharmaceutical, and Medical Devices. The company was incorporated in 1887 and is based in New Brunswick, New Jersey. JOHNSON & JOHNSON: AWP Suits in Illinois and New Jersey Ongoing --------------------------------------------------------------- Johnson & Johnson said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2019, for the quarterly period ended June 30, 2019, that the company continues to defend class action suits in Illinois and New Jersey related to Average Wholesale Price (AWP). Johnson & Johnson and several of its pharmaceutical subsidiaries (the J&J AWP Defendants), along with numerous other pharmaceutical companies, were named as defendants in a series of lawsuits in state and federal courts involving allegations that the pricing and marketing of certain pharmaceutical products amounted to fraudulent and otherwise actionable conduct because, among other things, the companies allegedly reported an inflated Average Wholesale Price (AWP) for the drugs at issue. Payors alleged that they used those AWPs in calculating provider reimbursement levels. The plaintiffs in these cases included three classes of private persons or entities that paid for any portion of the purchase of the drugs at issue based on AWP, and state government entities that made Medicaid payments for the drugs at issue based on AWP. Many of these cases, both federal actions and state actions removed to federal court, were consolidated for pre-trial purposes in a multi-district litigation in the United States District Court for the District of Massachusetts, where all claims against the J&J AWP Defendants were ultimately dismissed. The J&J AWP Defendants also prevailed in a case brought by the Commonwealth of Pennsylvania. Other AWP cases have been resolved through court order or settlement. Two cases remain pending. A case brought by Illinois was tried in May 2019 and post-trial briefing is underway. In New Jersey, a putative class action based upon AWP allegations is pending against Centocor, Inc. and Ortho Biotech Inc. (both now Janssen Biotech, Inc.), Johnson & Johnson and ALZA Corporation. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. It operates in three segments: Consumer, Pharmaceutical, and Medical Devices. The company was incorporated in 1887 and is based in New Brunswick, New Jersey. JOHNSON & JOHNSON: Continues to Defend INVOKANA(R) Related Suits ---------------------------------------------------------------- Johnson & Johnson said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2019, for the quarterly period ended June 30, 2019, that the company continues to defend class action suits related to INVOKANA(R). Claims for personal injury have been made against a number of Johnson & Johnson companies, including Janssen Pharmaceuticals, Inc. and Johnson & Johnson, arising out of the use of INVOKANA(R), a prescription medication indicated to improve glycemic control in adults with Type 2 diabetes. Lawsuits filed in federal courts in the United States have been organized as a multi-district litigation in the United States District Court for the District of New Jersey. Cases have also been filed in various state courts including Pennsylvania and Louisiana. Class action lawsuits have been filed in Canada. Product liability lawsuits continue to be filed, and the Company continues to receive information with respect to potential costs and the anticipated number of cases. The Company has settled or otherwise resolved many of the cases and claims in the United States and the costs associated with these settlements are reflected in the Company's accruals. No further updates were provided in the Company's SEC report. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. It operates in three segments: Consumer, Pharmaceutical, and Medical Devices. The company was incorporated in 1887 and is based in New Brunswick, New Jersey. JOHNSON & JOHNSON: Suits Over Ethicon Pelvic Mesh Devices Ongoing ----------------------------------------------------------------- Johnson & Johnson said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2019, for the quarterly period ended June 30, 2019, that the company has established accruals with respect to product liability litigation associated with Ethicon's pelvic mesh products. Claims for personal injury have been made against Ethicon, Inc. (Ethicon) and Johnson & Johnson arising out of Ethicon's pelvic mesh devices used to treat stress urinary incontinence and pelvic organ prolapse. The Company continues to receive information with respect to potential costs and additional cases. Cases filed in federal courts in the United States have been organized as a multi-district litigation in the United States District Court for the Southern District of West Virginia. The Company has settled or otherwise resolved a majority of the United States cases and the estimated costs associated with these settlements and the remaining cases are reflected in the Company's accruals. In addition, class actions and individual personal injury cases or claims have been commenced in various countries outside of the United States, including claims and cases in the United Kingdom, the Netherlands and Belgium, and class actions in Israel, Australia and Canada, seeking damages for alleged injury resulting from Ethicon's pelvic mesh devices. In Australia, a trial of class action issues has been completed and the parties are awaiting a decision. The Company has established accruals with respect to product liability litigation associated with Ethicon's pelvic mesh products. No further updates were provided in the Company's SEC report. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. It operates in three segments: Consumer, Pharmaceutical, and Medical Devices. The company was incorporated in 1887 and is based in New Brunswick, New Jersey. JOHNSON & JOHNSON: Talc-Related Class Suit Ongoing in NJ -------------------------------------------------------- Johnson & Johnson said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2019, for the quarterly period ended June 30, 2019, that the company continues to defend a class action suit in the U.S. District Court for the District Court of New Jersey involving talc contained in JOHNSON'S(R) Baby Powder and JOHNSON'S(R) Shower to Shower. In May 2014, two purported class actions were filed in federal court, one in the United States District Court for the Central District of California and one in the United States District Court for the Southern District of Illinois, against Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc. (now known as Johnson & Johnson Consumer Inc.) (JJCI) alleging violations of state consumer fraud statutes based on nondisclosure of alleged health risks associated with talc contained in JOHNSON'S(R) Baby Powder and JOHNSON'S(R) Shower to Shower (a product no longer sold by JJCI). Both cases seek injunctive relief and monetary damages; neither includes a claim for personal injuries. In October 2016, both cases were transferred to the United States District Court for the District Court of New Jersey as part of a newly created federal multi-district litigation. In July 2017, the district court granted Johnson & Johnson's and JJCI's motion to dismiss one of the cases. In September 2018, the United States Court of Appeals for the Third Circuit affirmed this dismissal. In September 2017, the plaintiff in the second case voluntarily dismissed the complaint. In March 2018, the plaintiff in the second case refiled in Illinois State Court. No further updates were provided in the Company's SEC report. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. It operates in three segments: Consumer, Pharmaceutical, and Medical Devices. The company was incorporated in 1887 and is based in New Brunswick, New Jersey. JOHNSON & JOHNSON: XARELTO Sales Class Suit in Louisiana Ongoing ---------------------------------------------------------------- Johnson & Johnson said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2019, for the quarterly period ended June 30, 2019, that the company continues to defend a class action suit in the U.S. District Court for the Eastern District of Louisiana related to its improper marketing and promotion of XARELTO(R). In August 2015, two third-party payors filed a purported class action in the United States District Court for the Eastern District of Louisiana against Janssen Research & Development, LLC, Janssen Ortho LLC, Janssen Pharmaceuticals, Inc., Ortho-McNeil-Janssen Pharmaceuticals, Inc. and Johnson & Johnson (as well as certain Bayer entities), alleging that the defendants improperly marketed and promoted XARELTO(R) as safer and more effective than less expensive alternative medications while failing to fully disclose its risks. The complaint seeks damages. No further updates were provided in the Company's SEC report. Johnson & Johnson, together with its subsidiaries, researches and develops, manufactures, and sells various products in the health care field worldwide. It operates in three segments: Consumer, Pharmaceutical, and Medical Devices. The company was incorporated in 1887 and is based in New Brunswick, New Jersey. KIA MOTORS: Baldwin et al Sue over Defective Airbags ---------------------------------------------------- A class action complaint has been filed against seven automotive manufacturers, including Kia Motors and Hyundai Motor, and the tier-one parts supplier, ZF TRW, for alleged violations of the Magnuson Moss Act, violations of California consumer protection statutes and violations of common law claims of fraud and unjust enrichment. The case is captioned RYAN BALDWIN; ERIN REILLY; BILAL MOHAMMAD ALI; JASON KLEIN; JOSHUA KIM; ERIC RUIZ; REX WESTON, individually, and on behalf of all others similarly situated; Plaintiffs, vs. KIA MOTORS AMERICA, INC., a California corporation; HYUNDAI MOTOR AMERICA, a California corporation; FCA US LLC, a Delaware limited liability company; MITSUBISHI MOTORS AMERICA, INC., a Delaware corporation; AMERICAN HONDA MOTOR CO., INC., a California corporation; ACURA, a Division of American Honda Motor Co., Inc.; TOYOTA MOTOR SALES, U.S.A., INC., a California corporation; ZF TRW AUTOMOTIVE HOLDINGS CORP., a Delaware corporation, Defendants, Case No. 8:19-cv-01376-DOC-KES (C.D. Cal., July 15, 2019). This case alleges an egregious breach of public trust by seven automotive manufacturers and a tier-one parts supplier, who have concealed a deadly airbag defect in 12.3 million U.S. cars. On the heels of the Takata recall, and the $1.5 billion in class action settlements that accompanied it, the manufacturers -- Acura, Honda, Toyota, FCA, Mitsubishi, Kia and Hyundai -- have known of this new airbag defect for years, and have yet refused to issue a recall to fix it. At issue is the vehicles’ airbag control unit (ACU) manufactured by supplier ZF-TRW that becomes over-stressed by excess electrical energy generated during a crash. The "electrical over-stress" forces the ACU to seize-up at the moment of impact, causing the airbags to not deploy and the seatbelt locks to fail. Kia Motors America, Inc is a California corporation, with its corporate headquarters located in this district at 111 Peters Canyon Road, Irvine, California 92606. Kia is a manufacturer and distributor of new motor vehicles under the Kia brand. Kia markets, leases, warrants, and oversees regulatory compliance and warranty servicing of Kia-brand vehicles through a network of dealers throughout the United States from its headquarters in California. Hyundai Motor America is a California corporation, with its corporate headquarters located in this district at 10550 Talbert Avenue, Fountain Valley, California 92708. Hyundai is a manufacturer and distributor of new motor vehicles under the Hyundai brand. Hyundai markets, leases, warrants, and oversees regulatory compliance and warranty servicing of Hyundai-brand vehicles through a network of dealers throughout the United States from its headquarters in California. FCA US LLC is a Delaware limited liability company, with its corporate headquarters located at 1000 Chrysler Drive, Auburn Hills, Michigan 48326. FCA is a manufacturer and distributor of new motor vehicles under the Chrysler, Dodge, Jeep, Ram, and Fiat brands. FCA markets, leases, warrants, and oversees regulatory compliance and warranty servicing of Chrysler, Dodge, Jeep, Ram, and Fiat-brand vehicles through a network of dealers throughout the United States from its headquarters in Michigan. FCA also creates and distributes the warranties and other written materials that accompany the sale and lease of Chrysler, Dodge, Jeep, Ram, and Fiat-branded vehicles throughout the United States, and makes decisions concerning warranty coverage of customer vehicles when problems arise. [BN] The Plaintiffs are represented by: Jonathan A. Michaels, Esq. Kyle Gurwell, Esq. Ryan Jones, Esq. MLG, APLC 151 Kalmus Dr., Suite A-102 Costa Mesa, CA 92626 Telephone: (949) 581-6900 Facsimile: (949) 581-6908 E-mail: jmichaels@mlgaplc.com kgurwell@ mlgaplc.com rjones@ mlgaplc.com - and - Robert N. Kaplan, Esq. KAPLAN FOX & KILSHEIMER LLP 850 3rd Ave., 14th Floor New York, NY 10022 Telephone: (212) 687-1980 Facsimile: (212) 687-7714 E-mail: rkaplan@kaplanfox.com - and - Laurence D. King, Esq. KAPLAN FOX & KILSHEIMER LLP 350 Sansome Street, Suite 400 San Francisco, CA 94104 Telephone: (415) 772-4700 Facsimile: (415) 772-4707 E-mail: lking@kaplanfox.com LIFESHARE BLOOD: Court Narrows Claims in Trisler FLSA Suit ---------------------------------------------------------- The United States District Court for the Western District of Louisiana, Alexandria Division, issued granting in part and denying in part Defendant's Motion for Partial Summary Judgment in the case captioned NATASHA TRISLER, ET AL., v. LIFESHARE BLOOD CENTERS. Case No. 17-CV-421. (W.D. La.). The original Plaintiffs in this motion, Natasha Trisler and Heather Savage filed this collective action in Louisiana's Ninth Judicial District Court, in their individual capacities and on behalf of others similarly situated. Trisler and Savage allege that, while employed as technicians at the Alexandria, Louisiana location of LifeShare, they were subjected to violations of both the FLSA and Louisiana law. Specifically, the representative Plaintiffs allege that LifeShare's policy of automatically deducting 30 minutes for meal breaks from any day's time exceeding 6 hours was applied to them, even on days where they did not receive a bona fide meal break. A court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. A dispute of material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. However, the non-moving party does not establish a genuine dispute with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence. It is important to note that the standard for a summary judgment is two-fold: (1) there is no genuine dispute as to any material fact, and (2) the movant is entitled to judgment as a matter of law. Plaintiffs' Overtime Gap Time Claims LifeShare's motion seeks a judgment in its favor as to all claims by plaintiffs for what are commonly referred to as overtime gap time claims. Gap time claims, also referred to as straight time claims, are claims for unpaid wages below the weekly 40-hour threshold. When an employee is paid at or above the minimum wage requirement and does not claim unpaid overtime wages, such gap time claims are not cognizable under the FLSA. Moreover, claims for straight time in weeks where an employee also works overtime are not contemplated by the FLSA. The Plaintiffs allege that LifeShare's meal deduction policy resulted in LifeShare's failure to pay them for both straight time and overtime. While plaintiffs concede that claims for straight time are generally not cognizable under the FLSA, plaintiffs assert that their overtime gap time claims claims for both straight time and overtime in weeks where these employees worked overtime are within the ambit of relief under the FLSA. This court does not agree. Rather, the Court applies Lundy and its progeny as persuasive on this issue. Accordingly, the Court finds that plaintiffs' straight time claims in weeks where these employees worked overtime are not cognizable as FLSA claims. The Court agrees, however, that such claims may be cognizable as state law claims. The court will address this issue with specificity in this ruling. Any claims by plaintiffs alleging breach of the FLSA based on failure to pay overtime wages will be preserved at this time, though the Court notes that plaintiffs fail to cite any evidence of the existence of these claims in response to the motion. Here, the Court observes that simply filing hundreds of pages of payroll evidence and citing it generally is unacceptable as a defense to a motion for summary judgment. Plaintiffs are required to cite evidence with specificity. Out of an abundance of caution, the Court preserves these claims, but will not maintain the claims in the future if evidence is not cited directly and, particularly, in the event of another motion challenging these claims. Plaintiffs' Claims for Alteration of Time LifeShare's motion next seeks summary judgment as to plaintiffs' claims that it violated the FLSA by allowing managers to redistribute hours worked among successive weeks in order to reduce or eliminate overtime hours. Plaintiffs' response affirms that it seeks voluntary dismissal of those particular claims, but carefully preserves claims both for alteration of time cards and for undercompensation for travel time. Plaintiffs' allegations regarding the alteration of timecards are duplicative of the prime issue in this case: failure to administer LifeShare's meal deduction policy fairly and consistently under the law. Specifically, plaintiffs' memorandum in opposition asks the court to preserve such claims based on evidence that managers directed employees to record meal breaks on their timecards when they were afforded no such meal break. Similarly, plaintiffs point to alleged instances where meal deductions were taken although an employee wrote no lunch on his/her handwritten timesheets. These alleged alterations comprise the central FLSA claim in this case and, to that end, will be preserved as part of plaintiffs' FLSA meal deduction claim, but will not be recognized as separate claims. Plaintiffs' claims for transfer of time between weeks will be dismissed according to their stated intent. Preemption of Louisiana Law Claims Plaintiffs' complaint includes alternative claims based on the Louisiana law of conversion and unjust enrichment. LifeShare's motion argues for dismissal of these claims based on FLSA preemption. LifeShare qualifies its argument by conceding that plaintiffs' gap time claims, claims for hourly wages below the 40-hour per week threshold are not covered by the FLSA and, for that reason, are not preempted. Instead, however, LifeShare advocates dismissal of these claims based on insufficiency of proof. The Court finds applicable jurisprudence dictates that plaintiffs' straight time and gap time overtime claims are not cognizable under the FLSA. Accordingly, the Court does not find that such claims are preempted by the FLSA, since they do not, at their root, allege a violation of the FLSA. Addressing the remaining Louisiana law claims, the Court must now determine to what cause of action such claims belong. Plaintiffs urge the court to view these claims as sounding in Louisiana's law of conversion. Plaintiffs admit, however, that no Louisiana or Fifth Circuit jurisprudence supports an application of the law of conversion to these facts.LifeShare contends that plaintiffs' claims do not satisfy the elements of a conversion claim, pointing out that plaintiffs are unable to demonstrate ownership of the wages at issue, which Louisiana law requires. Having considered the arguments, the court finds that conversion is inapplicable to plaintiffs' gap time and gap time overtime claims. Louisiana's Wage Payment Statute expressly provides that employers have a duty to pay all wages due an employee under the terms of employment no later than fifteen (15) days following the date of discharge. Jurisprudence illustrates that claims under the Wage Payment Statute are not preempted by the FLSA, where the wages sought are not covered by the FLSA or where the Louisiana statute provides the more generous remedy. An action for unjust enrichment under Louisiana law requires proof of the following elements: (1) an enrichment (2) an impoverishment (3) a connection between the enrichment and resulting impoverishment (4) an absence of justification or cause for the enrichment and impoverishment and (5) demonstration that the law provides no other remedy to the plaintiffs. Unjust enrichment is a subsidiary claim, meaning that unjust enrichment is not an available cause of action when Louisiana law provides another remedy. Based on the Court's finding that the proper state law cause of action for unpaid wages rests in Louisiana's Wage Payment Statute, the Court does not find that plaintiffs' claims are proper under the theory of unjust enrichment, since a remedy is clearly contemplated under existing law. Plaintiffs' petition fails to assert a claim under the Wage Payment Statute, but the mere fact that plaintiffs did not successfully pursue such a claim does not entitle them to unjust enrichment claims. The Court make no finding as to the merits of any future claims under Louisiana's Wage Payment Statute. Accordingly, LifeShare's motion for partial summary judgment will be granted as to the plaintiffs' claims for alteration of time regarding the transfer of time between workweeks, conversion and/or unjust enrichment, dismissing these claims with prejudice. A full-text copy of the District Court's July 29, 2019 Memorandum Ruling is available at https://tinyurl.com/y2fq6r3a from Leagle.com. Natasha Trisler, individually & on behalf of others similarly situated, Heather Savage, individually & on behalf of others similarly situated, Jaleisha Jones, Nia Robinson, Elaine Matthews, Michelle Taylor, Mecos Green, Courtney Ware, Jessica Ward, Nicole A Howard, Eunice Mason, Brianca Delton, Miranda Streetman, Kristina Beverly, LaNiece Johnson, Lafayette Romeka Anderson, Jeannie Fay Davidson-Harris, Judy L Knighton, Kimberly Fontenot, Ashley Schneider, Bryant McDonald, Andrea M Groshong, Frederickea Lawson, Laterica Cain, Stephanie Schaper, Krystal Fontenot, Dave Solomon Marie, Jr, Takachel R Green, Alicia L Williams, Angel Morris, Tabatha Brown, John Davis, Jr, Pauline Whitney, Chyla Wilson, Alexandra Johnson, Layvfette Hill, Sharone N Gillion, Michelle Pursley, Ravonda Norman, Patricia A Elmore, Kayla White, Natasha Holmes, Amber Vargas, Brad Kindrix, Jeanette Ferguson, Destiny Mink, Lecreatia Rawls, Shawron Clavelle, Ebony Holyfield, Mikesha Jolivet, Crystal Allen, Shealyn Stokely, Carrie James, Yolanda Wright, Tiaeh Rome Antoine, Cornelius Smith, Jr, Shondolyn Ensley, Kasey N Leckie, Leslie McClain, Kierra Godwin, Alexis Neville, Audreuna McCarter, Diana Turner, Leshia Gipson, Ashley E Goudeau, Shenequa Spencer, Samantha Holder, Dominique Reynolds, Jasmine C Brown, Karissa Shantel Scott, Labrisha Ford, Cathy Parker, Tiffany Dixon, All Plaintiffs, Brianna J Howard, Michael Vidrine, Alexis Bernard, Kelly Wilson, Ungelique Davis, Marlisha Armelin, Jessica Allison, Skylyn Granger Pete, Kayla A Lastrapes, Veronica Newsome, Felicia Williams, Victoria Short, Rachel Green, Milton J Ardoin & Lorilee Miguel Faulkner, Plaintiffs, represented by Kathleen Thompson Deanda, Stockwell Sievert et al, David L. Morgan, Stockwell Sievert et al, P O Box 2900. Lake Charles, LA 70601 & Somer George Brown, Cox Cox et al. 723 Broad Street, Lake Charles, LA 70601 LifeShare Blood Centers, Defendant, represented by Michael D. Lowe -- michael.lowe@keanmiller.com -- Kean Miller & Brian Ross Carnie -- brian.carnie@keanmiller.com -- Kean Miller. LITTLE CAESAR: Court Dismisses Ogden Antitrust Suit --------------------------------------------------- The United States District Court for the Eastern District of Michigan, Southern Division, issued an Opinion and Order granting Defendants' Motion to Dismiss in the case captioned CHRISTOPHER OGDEN, Plaintiff, v. LITTLE CAESAR ENTERPRISES, INC. and LC TRADEMARKS, INC., Defendants. Case No. 18-12792. (E.D. Mich.). The defendants, Little Caesar Enterprises, Inc. (LCE) and LC Trademarks, Inc., have moved to dismiss the complaint, arguing that it does not state a viable antitrust claim. Plaintiff Christopher Ogden has sued Little Caesar Enterprises, alleging that the pizza maker violated the Sherman Act by requiring its franchisees to adhere to a no poaching provision in its franchise agreement, which has the effect of stifling competitive wages and mobility of their restaurant managers, including Ogden. That provision prevents one franchisee from hiring the management employee of another franchisee without permission. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim is facially plausible when a plaintiff 'pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' When reviewing the motion, the Court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded factual allegations as true. Section 1 of the Sherman Act prohibits every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States. For a plaintiff to successfully bring an antitrust claim under Section 1 of the Sherman Act, the plaintiff must establish that the defendant's actions constituted an unreasonable restraint of trade which caused the plaintiff to experience an antitrust injury. Restraints can be unreasonable in one of two ways; in the first category, a small group of restraints are unreasonable per se because they always or almost always tend to restrict competition and decrease output. Typically only horizontal' restraints restraints imposed by agreement between competitors qualify as unreasonable per se. Restraints that are not unreasonable per se are judged under the rule of reason, which requires courts to conduct a fact-specific assessment of market power and market structure to assess the restraint's actual effect on competition. The defendants argue that the plaintiff has not pleaded facts that would justify application of the per se approach, and even the quick look method is inappropriate here. The plaintiff counters by citing several cases for the proposition that courts typically defer the commitment to a rule of decision until after discovery has produced a sufficient record for the typically fact-bound inquiry into the market effects of the defendants' conduct. However, the plaintiff pointedly resists the defendants' insistence that the claims can and should be subjected to the default and most commonly applied rule of reason analysis which is favored by the federal courts in nearly all anti-trust cases. Thus, the plaintiff himself has tethered the viability of his pleading to the application of either the per se or quick look rules of decision, which are more amenable to analysis at the pleading stage. He has not even attempted to advance allegations or arguments supporting any claim under the rule-of-reason standard. That may make sense for a tactical reason, as the plaintiff seeks to certify this case as a class action and represent a putative nationwide class. Attempting to define the relevant market for fast-food employees generally and Little Caesar employees in particular could be problematic. Regardless of his rationale, the plaintiff's avoidance of the rule-of-reason theory cuts against his reliance on authorities that counsel against addressing dispositive motions until some discovery has taken place. The defendants argue that the agreement in this case, between franchisor and franchisee, is a vertical agreement that only restricts intrabrand competition, which has the effect of actually promoting interbrand competition by restraining franchisees under the same brand from harming each other. Such agreements, the defendants contend, must be evaluated under the rule-of-reason, not the per se, approach. And they insist that the allegations here do not measure up under that theory because they fail to allege any substantial facts to establish that any franchisees entered into actual horizontal agreements, and the mere allegations of horizontal effects of the franchise agreement are not sufficient to establish a plausible anti-trust claim per Twombly. The plaintiff responds that the coordinated establishment of vertical agreements that orchestrate restraints of competition between horizontal competitors has been regarded as a horizontal agreement where the scheme is directed by a single controlling upstream entity in a hub and spoke pattern. They assert that contrary to the defendants' naked assertions that Little Caesar's franchisees do not compete with each other, the franchise paperwork contains numerous caveats informing franchisees that they are not guaranteed exclusive territories and may compete with other franchisees, or any exclusive territory may be narrowed or eliminated at the discretion of the defendants. And they contend that it is well-settled that agreements to fix prices or wages among horizontal competitors are per se illegal under the Sherman Act. The Sixth Circuit has explained that, regardless of the alignment of the parties to an agreement, the per se doctrine applies only if a restraint clearly and unquestionably falls within one of the handful of categories that have been collectively deemed per se anticompetitive. The plaintiff has not established that his claims properly could be allowed to proceed under a per se analysis, because the complaint does not anywhere allege that the defendants, or their franchisees, engaged in any explicit agreement either to fix wages or to divide the labor market into any discernible exclusive territories. Those are the only two narrow categories of agreements to which the Sixth Circuit has applied that strict rule of decision. The Sixth Circuit has explained that the per se doctrine should be applied reluctantly and infrequently, informed by other courts' review of the same type of restraint, and only when the rule of reason would likely justify the same result and it has observed with caution that the Supreme Court has described the per se rule as a demanding' rule that should be applied only in clear cut cases. In this case, the plaintiff has not explained how his claims fit into the narrow categories delineated by the Sixth Circuit for application of the per se rule, nor has he cited any decision holding that the sort of agreement pleaded here properly can be subjected to that mode of analysis. The plaintiff correctly points out that there is some authority for the proposition that the agreements here are not strictly vertical because although nominally executed between only the corporate parent and an individual franchisee, the agreements explicitly allowed for enforcement of the no-poaching clause by any non-party franchisee by civil suit, and they threatened that violating the provision to the detriment of a non-party franchisee could lead to sanctions from the corporate parent including termination of the franchise. Thus, the defendants' insistence that the agreements are purely vertical is not well taken. But even if the agreements are viewed as between horizontal competitors, that does not settle the question of which mode of analysis must apply. Horizontality alone does not necessarily justify invocation of the per se rule, because applying the rule of reason is the default position and can be applied to horizontal restraints as well if they do not fit into existing categories of per se violations. In this case, regardless of the alignment of the agreements, the per se analysis is not warranted; even the cases cited by the plaintiff as the leading decisions in support of his position have declined plaintiffs' invitations to apply a per se analysis to franchise agreements of the sort alleged here. The plaintiff's invocation of statutory and regulatory guidance by the Department of Justice offers little support for his position, since that guidance has been held to be inapplicable to the sort of agreement at issue here, which does not qualify for the heightened scrutiny afforded to a naked no-poaching compact between unaffiliated entities. Finally, even if a per se approach could be applied, the plaintiff has failed sufficiently to allege the sort of explicit, comprehensive wage-fixing compact that has been found to sustain claims in no-poaching cases under that rubric. The complaint here merely alleges in a very general fashion that no-poaching agreements have had some broad effect in depressing wages of employees in the fast-food industry on a macro scale. He has not alleged that franchisees in any relevant market, or nationally, actually met to fix wages or establish uniform wage scales or caps that all participants in the scheme would adhere to. The allegations here contrast sharply with the specific allegations of broad, explicit wage-fixing agreements in cases such as In re Animation Workers Antitrust Litigation, 123 F.Supp.3d 1175 (N.D. Cal. 2015), where the plaintiffs alleged that a cabal of half a dozen major movie studios conspired to suppress compensation in two ways. First, Defendants allegedly entered into a scheme not to actively solicit each other's employees. Second, Defendants allegedly engaged in 'collusive discussions in which they exchanged competitively sensitive compensation information' and agreed upon compensation ranges, which would artificially limit compensation offered to Defendants' current and prospective employees. The allegations there included comprehensive, regular collaborations by executives and human resource officers of the defendant studios to determine uniform wage schedules that they agreed to follow. The plaintiff's complaint fails to plead facts sufficient to support the proposition that the franchise agreements' no-poaching provisions are unreasonable per se. The complaint in this case contains no similar allegations. Ogden does not allege that he tried to obtain employment at another Little Caesar franchise, let alone that he was offered a job for more pay that he had to refuse, or that another employer would hire him but for the no-poaching clause. The quick look approach may provide refuge for near-miss per se antitrust plaintiffs, but the framework still requires an equivalent amount of obviousness that is lacking here. That is especially so here, where the agreements display both vertical and horizontal components, and therefore require a more in-depth analysis to determine unreasonableness. The facts alleged in the complaint, no matter how generously construed, fall far short of the required showing to sustain an antitrust claim, principally because the plaintiff has not put forth any allegations to define the scope of any relevant market, or to show that any anti-competitive effects of the agreements are not negated by the pro-competitive effects on interbrand competition. Thus, no matter how well sustained by the evidence, the allegations could not survive scrutiny under the rule of reason. The defendants also argue that the complaint falls short of alleging an antitrust injury, where the plaintiff suggests, at most, that he was merely unhappy with the terms of his employment and decided to take a job with another employer, without alleging that he ever actually was restrained from seeking a transfer or other employment by the defendants. The plaintiff responds that he has sufficiently alleged an antitrust injury where he asserts that the no-poaching clause in the franchise agreement artificially depressed his wages and suppressed his employment mobility, which had the effect of causing him to work for lower wages than he could have obtained in a fully competitive labor market. Regardless of whether the challenged agreement may have been unlawful, the plaintiff has not validly pleaded an antitrust injury where he has not offered any facts to show that the agreement precipitated any specific wage or opportunity loss to him. That is particularly apparent where, as here, the plaintiff contends that he had no knowledge of the no-poaching agreement, and that he never was subjected to any invocation of the clause by either his former or any prospective employer. In this case, the plaintiff has not alleged any similar facts to show that he ever attempted to or even considered transferring to another Little Caesar franchisee location. Nor has he alleged that any restrictive condition of his employment drove him to seek work outside the industry, by preventing him from being hired by any out-of-brand competitor. As the Sixth Circuit has held, the antitrust plaintiff who cannot show that the defendants' anti-competitive collusion actually deprived him of an opportunity to market his services has not made the required connection between the unlawful agreement and his injury. But the point remains that a plaintiff must allege facts that plausibly suggest the existence of all the elements of his claim. The Court in Twombly was referring to the idea of conscious parallelism, but the underlying principle infests the pleadings here as well. The plaintiff has not alleged facts under an applicable antitrust theory from which one plausibly could find that the no-poaching provision in the defendants' franchise agreements amount to an unreasonable restraint of trade. And particularly as to the consequences suffered by the plaintiff, the complaint suggests very little more than that the plaintiff was unhappy with the conditions of his employment and decided to seek work elsewhere, which he eventually found, albeit at a lower rate of pay than in his former job. Nothing in his extensive pleadings positively establishes that the plaintiff's departure from his job was due to anything other than his own choice to seek better work with a new employer; so far as they go, those circumstances are not sufficient to allege a plausible claim for relief under any legal theory alluded to in the complaint. Accordingly, the Defendants' motion to dismiss is granted. A full-text copy of the District Court's July 29, 2019 Opinion and Order is available at https://tinyurl.com/y5kwj6zl from Leagle.com. Christopher Ogden, Plaintiff, represented by Anne B. Shaver -- ashaver@lchb.com -- Lieff Cabraser Heimann and Bernstein LLP, Dean Michael Harvey -- dharvey@lchb.com -- Lieff Cabraser Heimann and Bernstein, LLP, Derek Y. Brandt -- derek@brandtlawllc.com -- McCune Wright Arevalo LLP, Lin Yee Chan -- lchan@lchb.com -- Lieff Cabraser Heimann & Berstein LLP, Michelle E. Conston -- MCONSTON@SCOTT-SCOTT.COM -- Scott and Scott Attorneys at Law LLP, Richard D. McCune -- rdm@mccunewright.com -- McCune Wright Arevalo, LLP, Sean C. Russell -- sean.russell@scott-scott.com -- Scott Scott Attorneys at Law LLP, Sharon S. Almonrode -- ssa@miller.law -- The Miller Law Firm, P.C., Stephanie A. Hackett -- SHACKETT@SCOTT-SCOTT.COM -- Scott and Scott Attorneys at Law LLP, Walter W. Noss, Scott and Scott Attorneys at Law LLP, 600 W. Broadway, Suite 3300, San Diego, CA 92101, William Kalas -- WK@miller.law -- The Miller Law Firm, P.C., Yaman Salahi -- ysalahi@lchb.com -- Lieff Cabraser Heimann and Bernstein LLP & E. Powell Miller -- epm@miller.law -- The Miller Law Firm. Little Caesar Enterprises, Inc. & LC Trademarks, Inc., Defendants, represented by Adam Michael Wenner -- awenner@honigman.com -- Honigman LLP, David A. Ettinger -- dettinger@honigman.com -- Honigman, Miller, Schwartz and Cohn LLP, J. Michael Huget -- mhuget@honigman.com -- Honigman LLP, Michael L. Sturm -- michael.sturm@gpmlaw.com -- Gray, Plant, Mooty, Mooty & Bennett, P.A. & Robert L. Zisk -- robert.zisk@gpmlaw.com -- Gray, Plant, Mooty, Mooty & Bennett, P.A.. LOBBY VENTURES: Morgan Asserts Violation under Disabilities Act --------------------------------------------------------------- Lobby Ventures Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Jon R. Morgan, on behalf of himself and all others similarly situated, Plaintiff v. Lobby Ventures Inc, Defendant, Case No. 1:19-cv-07216-PGG (S.D. N.Y., Aug. 1, 2019). Lobby Ventures Inc. have been selling on the Amazon.com marketplace since 2017. They sell in the Home & Kitchen department .[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com LOS ANGELES, CA: Customers Want $67MM Overcharging Deal Tossed -------------------------------------------------------------- Nathan Solis, writing for Courthouse News, reports that a $67 million settlement between Los Angeles County utility customers who were overcharged due to faulty meters and the Department of Water and Power should be tossed due to the discovery of millions more in damages, according to new attorneys representing the class action plaintiffs. The report filed in Los Angeles County Superior Court caps a turbulent week for city officials and the Los Angeles Department of Water and Power. FBI agents raided LADWP headquarters July 22 as part of an ongoing investigation into the settlement and the utility's top director was ousted by LA Mayor Eric Garcetti shortly after. In 2016, the LADWP reached a $67.5 million settlement with overcharged utility customers. The department blamed a consulting firm for designing faulty meters. But LA and the utility sued the consulting firm, PricewaterhouseCoopers, over the botched meter reading system. PricewaterhouseCoopers argued in court an attorney who represented the lead plaintiff in the meter-reading class action also acted as outside counsel for the city and LADWP in the separate lawsuit. PricewaterhouseCoopers argued this relationship ensured a more favorable settlement for the city. Now the class of customers are represented by attorney Brian Kabateck, who says large groups of customers were excluded from the initial settlement. In a 31-page report filed on July 25, the class claims there is at least $50 million owed to customers in addition to the $67 million initial settlement. There were customers who are owed back-billing pay, others from separate class actions, solar subclass customers and many others, says Kabateck. "The exclusion of these claims makes no sense. As part of the overall aim to refund 100% to the rate payers and maximize recovery, class counsel intends to reopen the settlement and request that the foregoing claims be included so the class may receive an immediate benefit," writes Kabateck. Attorney's fees should be paid out if a special master assigned to audit and investigate relationships in the case determines ethical violations occurred, the class says. Moreover, class members want the court to reopen discovery in the ratepayer case against the city of Los Angeles and the utility. "It is our preliminary conclusion that the customers and rate payers of the LADWP were in some manner victimized by the city's and/or outside counsel's actions," writes Kabateck. "It is also our opinion that there is additional money owed to the rate payers, and other claims were likely waived or eliminated because there was little or no likelihood the city could recover from PricewaterhouseCoopers on those claims." In a statement, an LADWP spokesperson said the settlement included multiple layers of review of the incorrect billing statements, which were then reviewed by a third-party monitor and approved by the court. "However, in keeping with the city's twin goals of achieving a 100% return to ratepayers of all overcharges and fully remediating the billing system, we welcome a thorough review of the settlement, the payouts and the programs developed to identify class members," the spokesperson said. "This includes the sampling of the payouts that class counsel proposes." A spokesperson for the City Attorney's Office said while it disagrees with most of the report filed in court, it agrees ratepayers should be repaid in full. The spokesperson did not address the claim that terms of the settlement intentionally excluded customers. Jamie Court from the nonpartisan Consumer Watchdog says customers should not just be compensated for money, but also any legal rights they may have waived from the class action settlement. "Those consumers should be able to sue when their smart readers are in error and they waived their rights with the fraudulent settlement," said Court. "The conduct here rose to malice and fraud." Before the FBI raided the LADWP headquarters, Court asked California Attorney General Xavier Becerra's office to take over the corruption probe of the Los Angeles City Attorney's Office and the utility. A top executive at LADWP, David Wright, was set to leave the post later this year but was replaced by 35-year veteran of the agency Marty Adams after the raid. Court said, "We need fresh blood in that department." [GN] LYFT INC: More Rape Victims Join Class Action in SLO Court ---------------------------------------------------------- Cal Coast Times reports that two alleged rape victims have joined a Nipomo woman as plaintiffs in a class action lawsuit filed in San Luis Obispo Superior Court, in California, against the ridesharing company Lyft. San Luis Obispo attorney Jim McKiernan, Esq. initially filed the lawsuit in January 2019 on behalf of a Nipomo woman whom a Lyft driver allegedly raped after bringing her home last November following a night of drinking. McKiernan refiled the lawsuit on July 24 in San Luis Obispo Superior Court. The two additional plaintiffs who joined the class action complaint were sexually assaulted by Lyft drivers in Los Angeles and San Diego counties, according to the suit. Both of the new plaintiffs were using Lyft's "tipsy taxi" service for rides home when they were allegedly sexually assaulted by their drivers. McKiernan's class action suit argues crimes involving Lyft drivers are common because of the company's inadequate screening process and negligent supervision. The suit details the incident in which a Lyft driver allegedly raped the Nipomo woman. "After being dropped off at Jane Doe's home around midnight by a Lyft driver, Jane Doe woke up the next morning in her bed bruised, naked and bleeding from her intimate private parts," the lawsuit states. "The entire assault by the Lyft driver was captured on a home surveillance system, amounting to approximately 30 minutes." On Nov. 4, the Nipomo woman was intoxicated when she stepped into a Lyft vehicle driven by Lompoc man Jason Fenwick, 52. She had blacked out by the time they arrived at her home, where she was escorted inside by Fenwick. Fenwick placed her in bed and then wandered around the house, snooping and checking for other occupants and closing curtains. He was oblivious to the home surveillance system that was recording his very action, according to the lawsuit. The Lyft driver proceeded to "fondle, paw, kiss, molest and disrobe" the woman. Eventually he removed her underwear and performed oral sex and penetrated her, according to the lawsuit. During the sexual assault, Fenwick took several breaks to surveil the inside of the home. He also took several photos of himself with the unconscious woman. After the assault, Fenwick grabbed the woman's phone and used it to leave himself a $20 tip for the Lyft ride, the lawsuit states. On Nov. 8, SLO County sheriff's deputies arrested Fenwick on charges of oral copulation with an intoxicated victim, sexual penetration with a foreign object, using a device to see through clothing and burglary. Fenwick remains in jail with his bail set at $500,000. According to the suit, Lyft has high driver turnover and rushes to fill driving positions. Lyft's high demand for drivers and inadequate background checks result in the hiring of dangerous drivers and drivers with criminal records. McKiernan has suggested that Lyft could monitor its drivers through an app currently used by customers to track drivers in order to monitor the amount of time drivers spend at the homes of their riders. Lyft employees could then call both the client and the driver to determine a reason for the delay in leaving the drop off point, McKiernan said. The plaintiffs are suing for unspecified damages, as well as reimbursement for legal fees. Likewise, the plaintiffs are seeking the imposition of fines and changes to Lyft policies. A recent California Supreme Court case set new standards for determining whether workers are employees of a company or independent contractors. The new standards make it much for difficult for companies to claim workers are independent contractors, thus making Lyft liable for its drivers' actions, according to the lawsuit. [GN] MACY'S CREDIT: Guardino Suit Asserts TCPA Violation --------------------------------------------------- JIMMY GUARDINO, individually and on behalf of all others similarly situated, Plaintiff, v. MACY'S CREDIT AND CUSTOMER SERVICES, INC., and DOES 1 through 10, inclusive, and each of them, Defendant, Case No. 2:19-cv-06675 (C.D. Cal., Aug. 1, 2019) is an action individually and on behalf of all others similarly situated seeking damages and any other available legal or equitable remedies resulting from the illegal actions of Defendants, in negligently, knowingly, and/or willfully contacting Plaintiff on Plaintiff's cellular telephone in violation of the Telephone Consumer Protection Act ("TCPA"), causing Plaintiff to incur charges for incoming calls and invading Plaintiff's privacy. Beginning in May of 2019, Defendant contacted Plaintiff on Plaintiff's cellular telephone, in an attempt to collect on an alleged debt. Plaintiff spoke to several customer service representatives and two supervisors. Despite Plaintiff's attempts to stop the calls, Defendant continued to contact Plaintiff. Plaintiff neither provided Defendant with his cellular telephone number, nor gave Defendant permission to call, says the complaint. Plaintiff JIMMY GUARDINO is a natural person residing in Woodland Hills, California. MACY'S CREDIT AND CUSTOMER SERVICES, INC. is a debt collection company.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Law Offices of Todd M. Friedman, P.C. 21550 Oxnard Street, Suite 780 Woodland Hills, CA 91367 Phone: (323) 306-4234 Fax: (866) 633-0228 Email: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com MADDIES MAYHEM: Sanchez Seeks Overtime Wages for Service Staff -------------------------------------------------------------- SYBIL SANCHEZ, on behalf of herself and other persons similarly situated the Plaintiff, v. MADDIES MAYHEM LLC D/B/A HAT TRICKS, the Defendant, Case No. 4:19-cv-00574 (E.D. Tex., July 31, 2019), seeks to recover unpaid wages pursuant to the Fair Labor Standards Act. According to the complaint, the Plaintiff and the Plaintiff Class were employed as bar tenders and waiters (Service Staff) by Defendant Maddies Mayhem LLC. While working for the Defendant, they were not paid overtime premium pay for overtime hours worked, in violation of the FLSA. Maddies Mayhem is a sports bar offering live music.[BN] Attorney for the Plaintiff is: Tailim Song, Esq. TAILIM SONG LAW FIRM 8111 LBJ Freeway, Suite 480 Dallas, TX 75251 Telephone: (214) 528-8400 Facsimile: (214) 528-8402 E-mail: tsong@tailimsong.com MCDERMOTT INT'L: Class Cert. Bid in Chicago Bridge Suit Pending --------------------------------------------------------------- McDermott International, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2019, for the quarterly period ended June 30, 2019, that the motion for class certification and appointment as class representatives in the class action suit entitled, In re Chicago Bridge & Iron Company N.V. Securities Litigation, is pending. On March 2, 2017, a complaint was filed in the United States District Court for the Southern District of New York seeking class action status on behalf of purchasers of CB&I common stock and alleging damages on their behalf arising from alleged false and misleading statements made during the class period from October 30, 2013 to June 23, 2015. The case is captioned: In re Chicago Bridge & Iron Company N.V. Securities Litigation, No. 1:17-cv-01580-LGS (the "Securities Litigation"). The defendants in the case are: CB&I; a former chief executive officer of CB&I; a former chief financial officer of CB&I; and a former controller and chief accounting officer of CB&I. On June 14, 2017, the court named ALSAR Partnership Ltd. as lead plaintiff. On August 14, 2017, a consolidated amended complaint was filed alleging violations of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 thereunder, arising out of alleged misrepresentations about CB&I's accounting for the acquisition of The Shaw Group, CB&I's accounting with respect to the two nuclear projects being constructed by The Shaw Group, and CB&I's financial reporting and public statements with respect to those two projects. On May 24, 2018, the court denied defendants' motion to dismiss and the parties are currently engaged in the discovery process. On February 4, 2019, lead plaintiff ALSAR Partnership Ltd. and additional plaintiffs Iron Workers Local 40, 361, & 417 – Union Security Funds and Iron Workers Local 580 – Joint Funds moved for class certification and appointment as class representatives. That motion remains pending before the magistrate-judge. McDermott said, "We are not able at this time to determine the likelihood of loss, if any, arising from this matter and, accordingly, no amounts have been accrued as of June 30, 2019. We believe the claims are without merit and intend to defend against them vigorously." McDermott International, Inc. provides engineering, procurement, construction and installation, and technology solutions to the energy industry worldwide. It operates through five segments: North, Central and South America; Europe, Africa, Russia and Caspian; the Middle East and North Africa; Asia Pacific; and Technology. McDermott International, Inc. was founded in 1923 and is headquartered in Houston, Texas. MCDERMOTT INT'L: Curti and Stremcha Class Suits Dismissed --------------------------------------------------------- McDermott International, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2019, for the quarterly period ended June 30, 2019, that the plaintiffs in Curti v. McDermott International, Inc., et al. and Stremcha v. McDermott International, Inc., et al., have voluntarily filed a notice of nonsuit and their actions have been dismissed without any payment by the company. On May 10, 2018, McDermott announced that it has completed its combination with Chicago Bridge & Iron Company N.V. creating a premier, fully integrated provider of technology, engineering and construction solutions for the energy industry. On March 1, 2019 and March 4, 2019, two essentially identical class action lawsuits were filed in the Harris County (Texas) District Court alleging violations of Sections 11, 12 and 15 of the Securities Act of 1933 on behalf of CB&I shareholders who acquired McDermott common stock pursuant or traceable to the Registration Statement on Form S-4 and the related Prospectus McDermott issued in connection with the Combination. These actions were captioned Curti v. McDermott International, Inc., et al., Case No. 2019-15780 and Stremcha v. McDermott International, Inc., et al., Case No. 2019-15473. The defendants, besides McDermott International, Inc., included present officers of McDermott and current and past members of McDermott’s board of directors. On or about July 9, 2019, the plaintiffs in these actions voluntarily filed a notice of nonsuit and the actions have been dismissed without any payment by the company. McDermott International, Inc. provides engineering, procurement, construction and installation, and technology solutions to the energy industry worldwide. It operates through five segments: North, Central and South America; Europe, Africa, Russia and Caspian; the Middle East and North Africa; Asia Pacific; and Technology. McDermott International, Inc. was founded in 1923 and is headquartered in Houston, Texas. MCDERMOTT INT'L: Lead Plaintiff Appointed in Consolidated Suit -------------------------------------------------------------- McDermott International, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2019, for the quarterly period ended June 30, 2019, that the court appointed lead plaintiffs in the consolidated Edwards v. McDermott International, Inc., et al. and Public Employees Retirement System of Mississippi v. McDermott International, Inc., et al. suit. On November 15, 2018, a complaint was filed in the United States District Court for the Southern District of Texas seeking class action status on behalf of purchasers of McDermott common stock and alleging damages on their behalf arising from allegedly false and misleading statements made during the class period from January 24, 2018 to October 30, 2018. The case is captioned: Edwards v. McDermott International, Inc., et al., No. 4:18-cv-04330. The defendants in the case are: McDermott; David Dickson, its president and chief executive officer; and Stuart Spence, its chief financial officer. The plaintiff has alleged that the defendants made material misrepresentations and omissions about the integration of the CB&I business, certain CB&I projects and their fair values, and our business, prospects and operations. The plaintiff asserts claims under Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 thereunder. On January 14, 2019, a related action was filed in the United States District Court for the Southern District of Texas seeking class action status on behalf of all shareholders of McDermott common stock as of April 4, 2018 who had the right to vote on the Combination, captioned: The Public Employees Retirement System of Mississippi v. McDermott International, Inc., et al., No. 4:19-cv-00135. The plaintiff has alleged the defendants (which include the company's chief executive officer and chief financial officer) made material misrepresentations and omissions in the proxy statement we used in connection with the Combination. The plaintiff asserted claims under Section 14(a) and 20(a) of the Exchange Act. The company filed a motion to consolidate the two actions, and the court granted that motion on February 22, 2019. The court appointed lead plaintiffs in both actions on June 5, 2019. McDermott said, "We plan to file motions to dismiss all of the claims once amended pleadings are filed. We are not able at this time to determine the likelihood of loss, if any, arising from these matters and, accordingly, no amounts have been accrued as of June 30, 2019. We believe the claims are without merit and we intend to defend against them vigorously." McDermott International, Inc. provides engineering, procurement, construction and installation, and technology solutions to the energy industry worldwide. It operates through five segments: North, Central and South America; Europe, Africa, Russia and Caspian; the Middle East and North Africa; Asia Pacific; and Technology. McDermott International, Inc. was founded in 1923 and is headquartered in Houston, Texas. MCDERMOTT INT'L: Tentative Settlement Reached in Cantrell Suit -------------------------------------------------------------- McDermott International, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2019, for the quarterly period ended June 30, 2019, that a tentative settlement has been reached among the parties in Cantrell v. Lutech Resources, Inc. A former employee of one of the company's subsidiaries commenced a class action lawsuit under the Fair Labor Standards ACT ("FLSA") entitled Cantrell v. Lutech Resources, Inc., (S.D. Texas 2017) Case No. 4:17-CV-2679 on or about September 5, 2017, alleging that he and his fellow class members were not paid one and one half times their normal hourly wage rates for hours worked that exceeded 40 hours in a work week. The company's subsidiary has yet to answer the allegations in the complaint, as agreed by the parties, in order to allow mediation to take place. The first mediation session commenced in October 2018 and is ongoing, and a tentative settlement has been reached between the parties. McDermott said, "We do not believe a risk of material loss is probable related to this matter, and, accordingly, our reserves for this matter were not significant as of June 30, 2019." McDermott International, Inc. provides engineering, procurement, construction and installation, and technology solutions to the energy industry worldwide. It operates through five segments: North, Central and South America; Europe, Africa, Russia and Caspian; the Middle East and North Africa; Asia Pacific; and Technology. McDermott International, Inc. was founded in 1923 and is headquartered in Houston, Texas. MDL 2472: Warner Chilcott Appeals Cert. Order in Loestrin MDL ------------------------------------------------------------- Defendants Warner Chilcott (US), LLC, et al., filed an appeal from the District Court's direct purchaser class certification order issued in the multidistrict litigation titled In Re: LOESTRIN 24 FE ANTITRUST LITIGATION, Case No. 1:13-md-02472-WES-PAS, in the U.S. District Court for the District of Rhode Island. As previously reported in the Class Action Reporter, the Direct Purchaser Class Plaintiffs Ahold USA, Inc. and Rochester Drug Co-Operative, Inc. asked the Court for an order certifying a class of: "all persons or entities in the United States and its territories who purchased brand or generic Loestrin 24 directly from Warner or Amneal at any time during the period from September 1, 2009, through and until June 3, 2015, and all persons or entities in the United States and its territories who purchased brand Minastrin 24 directly from Warner at any time during the period from September 1, 2009, through and until March 14, 2017." The appellate case is captioned as WARNER CHILCOTT (US), LLC, et al. v. AHOLD USA, INC., Case No. 19-8014, in the United States Court of Appeals for the First Circuit. The Petitioners are Warner Chilcott (US), LLC; Warner Chilcott Sales (US), LLC; Warner Chilcott Company, LLC; Warner Chilcott plc; Warner Chilcott Limited; Watson Pharmaceuticals, Inc.; and Watson Laboratories, Inc. The Respondent is Ahold USA, Inc.[BN] The Petitioners-Defendants are represented by: J. Mark Gidley, Esq. Peter J. Carney, Esq. Matthew S. Leddicotte, Esq. WHITE & CASE LLP 701 Thirteenth Street, N.W. Washington, DC 20005 Telephone: (202) 626-3600 Facsimile: (202) 639-9355 E-mail: mgidley@whitecase.com pcarney@whitecase.com mleddicotte@whitecase.com - and - Robert A. Milne, Esq. Jack E. Pace III, Esq. Bryan D. Gant, Esq. WHITE & CASE LLP 1221 Avenue of the Americas New York, NY 10020-1905 Telephone: (212) 819-8200 Facsimile: (212) 354-8113 E-mail: rmilne@whitecase.com jpace@whitecase.com bgant@whitecase.com One of the Plaintiff's attorneys certifies that copies of the Petition were sent, via third-party commercial carrier for delivery overnight and e-mail to these counsel: Patrick C. Lynch, Esq. Jeffrey B. Pine, Esq. LYNCH & PINE One Park Row, 5th Floor Providence, RI 02903 Telephone: (401) 274-3306 E-mail: patrick@patricklynchgroup.com jbp@pinelaw.com - and - Daniel J. Walker, Esq. BERGER & MONTAGUE, P.C. 2001 Pennsylvania Avenue, NW, Suite 300 Washington, DC 20006 Telephone: (202) 559-9745 E-mail: dwalker@bm.net - and - David F. Sorensen, Esq. Ellen T. Noteware, Esq. BERGER & MONTAGUE, P.C. 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-3000 E-mail: dsorensen@bm.net enoteware@bm.net - and - Thomas M. Sobol, Esq. Kristen A. Johnson, Esq. Laura Hayes, Esq. Edward Notargiacomo, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 55 Cambridge Parkway, Suite 301 Cambridge, MA 02142 Telephone: (617) 482-3700 E-mail: tom@hbsslaw.com kristenj@hbsslaw.com lhayes@hbsslaw.com ed@hbsslaw.com - and - Joseph H. Meltzer, Esq. Terence S. Ziegler, Esq. KESSLER TOPAZ MELTZER & CHECK LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 E-mail: jmeltzer@ktmc.com tziegler@ktmc.com - and - Peter R. Kohn, Esq. Neill W. Clark, Esq. FARUQI & FARUQI LLP 1617 JFK Boulevard, Suite 1550 Philadelphia, PA 19103 Telephone: (215) 277-5770 E-mail: pkohn@faruqilaw.com nclark@faruqilaw.com - and - David C. Calvello, Esq. FARUQI & FARUQI LLP 685 Third Avenue, 26th Floor New York, NY 10017 Telephone: (212) 983-9330 E-mail: dcalvello@faruqilaw.com - and - Barry S. Taus, Esq. Archana Tamoshunas, Esq. TAUS, CEBULASH & LANDAU, LLP 80 Maiden Lane, Suite 1204 New York, NY 10038 Telephone: (212) 931-0704 E-mail: btaus@tcllaw.com atamoshunas@tcllaw.com - and - John Radice, Esq. THE RADICE LAW FIRM, PC 34 Sunset Boulevard Long Beach, NJ 08008 Telephone: (646) 386-7688 E-mail: jradice@radicelawfirm.com MDL 2492: Hutcherson v. NCAA over Health Issues Consolidated ------------------------------------------------------------ The case, Cameron Hutcherson, individually and on behalf of all similarly situated individuals, the Plaintiff, vs. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, the Defendant, Case No. 1:19-cv-02572 (Filed June 25, 2019), was transferred from the U.S. District Court for the Southern District of Indiana, to the U.S. District Court for the Northern District of Illinois (Chicago) on August 1, 2019. The Northern District of Illinois Court Clerk assigned Case No. 1:19-cv-05133 the proceeding. The Plaintiff brings this class action complaint against NCAA to obtain redress for injuries sustained as result of Defendant's reckless disregard for the health and safety of generations of student-athletes. The Hutcherson case is being consolidated with MDL No. 2492, Re: NATIONAL COLLEGIATE ATHLETIC ASSOCIATION STUDENT-ATHLETE CONCUSSION INJURY LITIGATION. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on Dec. 18, 2013. These actions seek medical monitoring for putative classes of former student athletes at NCAA-member schools who allege they suffered concussions. The Plaintiffs allege that the NCAA concealed information about the risks of the long-term effects of concussion injuries. Opponents to centralization argue, inter alia, that (1) the putative classes and claims alleged in these actions do not sufficiently overlap; and (2) given the small number of actions pending, alternatives to centralization are preferable. Opponents' arguments, while persuasive when the Section 1407 motion was first filed, are less compelling now given the current state of the litigation, the Panel said. Since the motion for centralization was filed, an additional eight related actions have been filed, most alleging overlapping putative classes of former football players at NCAA-member schools. The Arrington action in the Northern District of Illinois involves student-athletes who participated in additional sports, and the putative class alleged in that action is more limited in scope. Most of the actions now pending, however, involve nearly completely overlapping putative classes and claims. Moreover, the Panel is persuaded that the overlap between Arrington and the remaining actions is sufficient to warrant centralization. Regardless of the scope of the putative classes alleged, all actions share common factual questions concerning the NCAA's knowledge of the risks of concussions in football players and its policies governing the protection of players from such injuries. Plaintiffs in all actions seek medical monitoring for putative class members. In its Dec. 18, 2013 Order, the MDL Panel found that the these actions involve common questions of fact, and that centralization in the Northern District of Illinois will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. These actions share factual questions relating to allegations against the NCAA stemming from injuries sustained while playing sports at NCAA-member institutions, including damages resulting from the permanent long-term effects of concussions. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings, including with respect to class certification; and conserve the resources of the parties, their counsel, and the judiciary. Presiding Judge in the MDL is Hon. Judge John Z. Lee Paul. The lead case is 1:16-cv-08727. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] Counsel for the Plaintiff and the Putative Class: Jeff Raizner, Esq. RAIZNER S LANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: 713 554 9099 Facsimile: 713 554 9098 E-mail: jefile@raiznerlaw.com rbalabanian@edelson.com MJ ENTERPRISES: McDaniel Sues Over Unpaid Overtime Wages -------------------------------------------------------- JUSTIN MCDANIEL, on his own behalf, and on behalf of all similarly situated individuals, Plaintiff, v. MJ ENTERPRISES OF FLORIDA, LLC, d/b/a/ BENCHMARK ALUMINUM AND CONSTRUCTION a Florida corporation and MICHAEL ST. GERMAIN, individually and JACQUELINE ST. GERMAIN, individually, Defendants, Case No. 8:19-cv-01900-SDM-AEP (M.D. Fla., Aug. 2, 2019) is a Fair Labor Standards Act ("FLSA") collective action seeking to recover from Defendant overtime compensation, liquidated damages, and reasonable attorneys' fees and costs. When Plaintiff worked over forty hours a week, Defendants did not pay Plaintiff time and one half for all hours worked over forty in that work week in violation of the FLSA, says the complaint. Plaintiff was employed by Defendants in a non-exempt position from January 1, 2016 to June 29, 2018. MJ ENTERPRISES OF FLORIDA, LLC, d/b/a BENCHMARK ALUMINUM AND CONSTRUCTION is an aluminum company constructing swimming pool enclosures and deck extensions in North Port, Sarasota County, Florida and surrounding areas.[BN] The Plaintiff is represented by: BRIANNA A. JORDAN, ESQ. Morgan & Morgan, P.A. 201 N. Franklin Street, Suite 700 Tampa, FL 33602 Direct No. 813-393-5457 Facsimile: 813-393-5481 Email: bjordan@forthepeople.com MUTH CAPITAL: Fabricant Suit Asserts TCPA Violation ---------------------------------------------------- TERRY FABRICANT, individually and on behalf of all others similarly situated, Plaintiff, v. MUTH CAPITAL, LLC, and DOES 1 through 10, inclusive, and each of them, Defendant, Case No. 2:19-cv-06750 (C.D. Cal., Aug. 2, 2019) is an action individually and on behalf of all others similarly situated seeking damages and any other available legal or equitable remedies resulting from the illegal actions of Defendants, in negligently, knowingly, and/or willfully contacting Plaintiff on Plaintiff's cellular telephone in violation of the Telephone Consumer Protection Act ("TCPA") and related regulations, specifically the National Do-Not-Call provisions, thereby invading Plaintiff's privacy. Beginning in June of 2018, DEFENDANTS, by and through their agents MCA Leads World Solutions, contacted Plaintiff on Plaintiff's cellular telephone. The Defendants used an "automatic telephone dialing system" to place its call to Plaintiff seeking to solicit its services. The Defendants' calls constituted calls that were not for emergency purposes. Further, Plaintiff's cellular telephone number has been on the National Do-Not-Call Registry since at least June 4, 2008. The Defendants called Plaintiff in an attempt to solicit its services in violation of the National Do-Not-Call provisions of the TCPA, says the complaint. Plaintiff, TERRY FABRICANT is a natural person residing in Winnetka, California. MUTH CAPITAL, LLC is a business funding lender.[BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Law Offices of Todd M. Friedman, P.C. 21550 Oxnard Street, Suite 780 Woodland Hills, CA 91367 Phone: (323) 306-4234 Fax: (866) 633-0228 Email: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com MYLAN NV: Bid to Dismiss MYL Litigation Recovery Suit Pending ------------------------------------------------------------- Mylan N.V. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2019, for the quarterly period ended June 30, 2019, that the defendants' motion to dismiss the MYL Litigation Recovery I LLC's complaint, is pending. Purported class action complaints were filed in October 2016 against Mylan N.V., Mylan Inc. and certain of their current and former directors and officers (collectively, for purposes of this paragraph, the "defendants") in the United States District Court for the Southern District of New York ("SDNY") on behalf of certain purchasers of securities of Mylan N.V. and/or Mylan Inc. on the NASDAQ. The complaints alleged that defendants made false or misleading statements and omissions of purportedly material fact, in violation of federal securities laws, in connection with disclosures relating to Mylan N.V. and Mylan Inc.'s classification of their EpiPen(R) Auto-Injector as a non-innovator drug for purposes of the MDRP. The complaints sought damages, as well as the plaintiffs' fees and costs. On March 20, 2017, a consolidated amended complaint was filed, alleging substantially similar claims and seeking substantially similar relief, but adding allegations that defendants made false or misleading statements and omissions of purportedly material fact in connection with allegedly anticompetitive conduct with respect to EpiPen(R) Auto-Injector and certain generic drugs, and alleging violations of both federal securities laws (on behalf of a purported class of certain purchasers of securities of Mylan N.V. and/or Mylan Inc. on the NASDAQ) and Israeli securities laws (on behalf of a purported class of certain purchasers of securities of Mylan N.V. on the Tel Aviv Stock Exchange). On March 28, 2018, defendants' motion to dismiss the consolidated amended complaint was granted in part (including the dismissal of claims arising under Israeli securities laws) and denied in part. On July 6, 2018, the plaintiffs filed a second amended complaint, including certain current and former directors and officers and additional allegations in connection with purportedly anticompetitive conduct with respect to EpiPen(R) Auto-Injector and certain generic drugs. On August 6, 2018, defendants filed a motion to dismiss the second amended complaint, which was granted in part and denied in part on March 29, 2019. On June 17, 2019, plaintiffs filed a third amended complaint, including certain current and former directors and employees/officers and additional allegations in connection with purportedly anticompetitive conduct with respect to certain generic drugs. On February 26, 2019, MYL Litigation Recovery I LLC (an assignee of entities that purportedly purchased stock of Mylan N.V.) filed an additional complaint against Mylan N.V., Mylan Inc., and certain of their current and former directors and officers in the SDNY asserting allegations pertaining to EpiPen(R) Auto-Injector under the federal securities laws that overlap in part with those asserted in the third amended complaint identified above. MYL Litigation Recovery I LLC's complaint seeks damages as well as the plaintiff's costs. On June 5, 2019, defendants filed a motion to dismiss certain of MYL Litigation Recovery I LLC's claims, which remains pending. Mylan said, "We believe that the claims in these lawsuits are without merit and intend to defend against them vigorously." Mylan N.V., together with its subsidiaries, develops, licenses, manufactures, markets, and distributes generic, branded-generic, brand-name, and over-the-counter (OTC) pharmaceutical products in North America, Europe, and internationally. The company was founded in 1961 and is headquartered in Canonsburg, Pennsylvania. MYLAN NV: Class Cert. in EpiPen(R) Auto-Injector Suit Still Pending ------------------------------------------------------------------- Mylan N.V. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2019, for the quarterly period ended June 30, 2019, that the motion for class certification in the EpiPen(R) Auto-Injector Civil Litigation is still pending. Mylan Specialty and other Mylan-affiliated entities have been named as defendants in putative class actions relating to the pricing and/or marketing of the EpiPen(R) Auto-Injector. The plaintiffs in these cases assert violations of various federal and state antitrust and consumer protection laws, the Racketeer Influenced and Corrupt Organizations Act, as well as common law claims. Plaintiffs' claims include purported challenges to the prices charged for the EpiPen(R) Auto-Injector and/or the marketing of the product in packages containing two auto-injectors, as well as allegedly anti-competitive conduct. A Mylan officer and other non-Mylan affiliated companies were also named as defendants in some of the class actions. These lawsuits were filed in the various federal and state courts and have either been dismissed or transferred into a multidistrict litigation ("MDL") in the U.S. District Court for the District of Kansas and have been consolidated. Mylan filed a motion to dismiss the consolidated amended complaint, which was granted in part and denied in part. On December 7, 2018, the Plaintiffs filed a motion for class certification. This motion remains pending. A trial date has been scheduled for November 2020. Mylan said, "We believe that the remaining claims in these lawsuits are without merit and intend to defend against them vigorously." On April 24, 2017, Sanofi-Aventis U.S., LLC ("Sanofi") filed a lawsuit against Mylan Inc. and Mylan Specialty in the U.S. District Court for the District of New Jersey. This lawsuit has been transferred into the aforementioned MDL. In this lawsuit, Sanofi alleges exclusive dealings and anti-competitive marketing practices in violation of the antitrust laws in connection with the sale and marketing of the EpiPen(R) Auto-Injector. On November 1, 2018, Sanofi filed a Motion for a Suggestion of Remand of the case to the U.S. District Court for the District of New Jersey. On January 23, 2019, the Court denied Sanofi's motion without prejudice. On June 28, 2019, Mylan filed a motion for summary judgment as to the claims asserted by Sanofi and Sanofi filed both a motion for partial summary judgment with respect to its claims against Mylan and for summary judgment with respect to Mylan's counterclaims. These motions remain pending. Mylan said "We believe that Sanofi's claims in this lawsuit are without merit and intend to defend against them vigorously." Mylan N.V., together with its subsidiaries, develops, licenses, manufactures, markets, and distributes generic, branded-generic, brand-name, and over-the-counter (OTC) pharmaceutical products in North America, Europe, and internationally. The company was founded in 1961 and is headquartered in Canonsburg, Pennsylvania. MYLAN NV: Israeli Securities Suit Still Stayed ---------------------------------------------- Mylan N.V. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2019, for the quarterly period ended June 30, 2019, that the IEC Fund Action in the Tel Aviv District Court (Economic Division) remains stayed until a judgment is issued in the securities litigation pending in the United States On October 13, 2016, a purported shareholder of Mylan N.V. filed a lawsuit, together with a motion to certify the lawsuit as a class action on behalf of certain Mylan N.V. shareholders on the Tel Aviv Stock Exchange, against Mylan N.V. and four of its directors and officers (collectively, for purposes of this paragraph, the "defendants") in the Tel Aviv District Court (Economic Division) (the "Friedman Action"). The plaintiff alleges that the defendants made false or misleading statements and omissions of purportedly material fact in Mylan N.V.'s reports to the Tel Aviv Stock Exchange regarding Mylan N.V.’s classification of its EpiPen(R) Auto-Injector for purposes of the MDRP, in violation of both U.S. and Israeli securities laws, the Israeli Companies Law and the Israeli Torts Ordinance. The plaintiff seeks damages, among other remedies. On April 30, 2017, another purported shareholder of Mylan N.V. filed a separate lawsuit, together with a motion to certify the lawsuit as a class action on behalf of certain Mylan N.V. shareholders on the Tel Aviv Stock Exchange, in the Tel Aviv District Court (Economic Division), alleging substantially similar claims and seeking substantially similar relief against the defendants and other directors and officers of Mylan N.V., but alleging also that this group of defendants made false or misleading statements and omissions of purportedly material fact in connection with allegedly anticompetitive conduct with respect to EpiPen(R) Auto-Injector and certain generic drugs, and alleging violations of both U.S. federal securities laws and Israeli law (the "IEC Fund Action"). On April 10, 2018, the Tel Aviv District Court granted the motion filed by plaintiffs in both the Friedman Action and the IEC Fund Action, voluntarily dismissing the Friedman Action and staying the IEC Fund Action until a judgment is issued in the purported class action securities litigation pending in the U.S. Mylan said, "We believe that the claims in these lawsuits are without merit and intend to defend against them vigorously." No further updates were provided in the Company's SEC report. Mylan N.V., together with its subsidiaries, develops, licenses, manufactures, markets, and distributes generic, branded-generic, brand-name, and over-the-counter (OTC) pharmaceutical products in North America, Europe, and internationally. The company was founded in 1961 and is headquartered in Canonsburg, Pennsylvania. MYLAN NV: Valsartan-Related Class Suit in New Jersey Ongoing ------------------------------------------------------------ Mylan N.V. said in its Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2019, for the quarterly period ended June 30, 2019, that the company continues to defend a class action suit related to sills of valsartan. Mylan N.V., and certain of its subsidiaries, along with numerous other manufacturers, retailers and others, have been named (or plaintiffs are seeking to name certain Mylan entities) as defendants in lawsuits in the United States, Canada and other countries stemming from recalls of valsartan-containing medications. The United States litigation, which is taking place in an MDL in the District of New Jersey, includes class action and individual allegations seeking the refund of the purchase price and other economic damages allegedly sustained by consumers who purchased valsartan-containing products as well as claims for personal injuries allegedly caused by ingestion of the medication. Moreover, Mylan has received requests to indemnify purchasers of Mylan's active pharmaceutical ingredient and/or finished dose forms of the product. Mylan said, "We believe that the claims in these lawsuits are without merit and intend to defend against them vigorously." No further updates were provided in the Company's SEC report. Mylan N.V., together with its subsidiaries, develops, licenses, manufactures, markets, and distributes generic, branded-generic, brand-name, and over-the-counter (OTC) pharmaceutical products in North America, Europe, and internationally. The company was founded in 1961 and is headquartered in Canonsburg, Pennsylvania. NETFLIX INC: Faces Class Action, Sept. 20 Lead Plaintiff Deadline ----------------------------------------------------------------- Pomerantz LLP on July 31 disclosed that a class action lawsuit has been filed against Netflix, Inc. ("Netflix" or the "Company") (NASDAQ: NFLX) and certain of its officers. The class action, filed in United States District Court, for the Northern District of California, and indexed under 19-cv-04395, is on behalf of a class consisting of all persons and entities who purchased or otherwise acquired the publicly traded securities of Netflix between April 17, 2019 and July 17, 2019, both dates inclusive (the "Class Period"). Plaintiff seeks to recover compensable damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder. If you are a shareholder who purchased Netflix securities during the class period, you have until, September 20, 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. For more information about joining the class action, you can go to https://form.jotform.com/pomerantzllp2/NFLX Netflix provides Internet entertainment services, primarily streaming services. The complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Netflix would not be able to gain its expected target number of new subscribers in the second quarter of 2019; (ii) Netflix would also lose subscribers from the United States in the second quarter of 2019; and (iii) as a result, Defendants' public statements were materially false and misleading at all relevant times. On July 17, 2019, post-market, Netflix released a letter to shareholders which revealed that Netflix missed its expected target for number of new subscribers and lost 126,000 subscribers in the United States during the second quarter of 2019. Also on July 17, 2019, Netflix held an earnings call to discuss its financial and operating results for the quarter. During the earnings call, the Company's Chief Financial Officer attributed the missed subscription target to the "timing of [Netflix's] content slate" and price increases. On this news, Netflix's stock price fell $47.34 per share, or over 13%, over the following two trading sessions, closing at $315.10 per share on July 19, 2019 With offices in New York, Chicago, Los Angeles, and Paris, The Pomerantz Firm -- http://www.pomerantzlaw.com–- concentrates its practice 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. [GN] NETFLIX INC: Schall Investigating Claims on Behalf of Investors --------------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, announces that it is investigating claims on behalf of investors of Netflix, Inc. (NASDAQ: NFLX) for violations of Sections 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. The investigation focuses on whether the Company issued false and/or misleading statements and/or failed to disclose information pertinent to investors. Netflix announced its second quarter 2019 earnings on July 17, 2019. During the Company's earnings call, as well as in its shareholder letter, it was revealed that Netflix gained only 2.7 million new subscribers against a forecast of 5 million new subscribers. Based on this startling news, shares of Netflix dropped by more than 13% over the next two days. 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. 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 Tel.No.: 310-301-3335 Cell: 424-303-1964 Website: www.schallfirm.com Email: info@schallfirm.com brian@schallfirm.com [GN] NEW BALANCE: $1.4MM Class Settlement in Dashnaw Suit Has Final OK ----------------------------------------------------------------- The United States District Court for the Southern District of California issued an Order granting Plaintiffs' Motion for Final Class Action Settlement Approval in the case captioned SHEILA DASHNAW et al., Plaintiffs, v. NEW BALANCE ATHLETICS, INC., Defendant. Case No. 17cv159-L(JLB). (S.D. Cal.). This consumer action alleging false advertising has been certified as a class action. The Plaintiffs allege consumer fraud relating to made in USA representations on certain New Balance athletic shoes in violation of California False Advertising Law, relating to the sale of goods produced abroad); Consumer Legal Remedies Act, breach of express warranty; negligent misrepresentation; and unjust enrichment. In the operative complaint. Class Membership and Representation In the absence of new evidence or objections to class certification, the Court certifies for settlement purposes a class comprised of: All persons who purchased any and all Made in USA Shoes[1] from New Balance and/or its Authorized Retailers in California from December 27, 2012 up to and including January 24, 2019 (Class and Class Period respectively). 'Made in USA' Shoes means the New Balance's Made in USA labeled shoes listed below and purchased as new by Class members in California during the Class Period: ELIGIBLE NEW BALANCE SHOE MODELS 601 ML996 M1140 ML997 M1290 MR1105 M1300 MR993 M1400 MW812 M1540 PM15 M1700 PM16 M2040 US574 M3040 US576 M498 US990 M574 US993 M585 US998 M587 W1140 M770 W1290 M990 W1400 M991 W1540 M995 W3040 M996 W498 M997 W587 M9975 W990 M998 W998 MK706 WK706 ML1300 WR993 ML1978 WW81Excluded from the Class are: (a) New Balance's board members and employees, including its attorneys (b) any persons who purchased the Made in USA Shoes for the purposes of resale (c) distributors or re-sellers of Made in USA Shoes (d) the judge and magistrate judge and their immediate families presiding over this action (e) governmental entities and (f) persons or entities who or which exclude themselves from the Class as provided in the notice. Notice to the Class In the Preliminary Approval Order, Heffler Claims Group was appointed as Settlement Administrator for purposes of notice to the Class and claim processing. The Court approved, with changes, the proposed notice of class action certification and settlement, and set a schedule for notice, claim submissions, exclusions, and objections. Notice Content A class certification notice must clearly and concisely state in plain, easily understood language the following: (i) the nature of the action (ii) the definition of the class certified (iii) the class claims, issues, or defences (iv) that a class member may enter an appearance through an attorney if the member so desires (v) that the court will exclude from the class any member who requests exclusion (vi) the time and manner for requesting exclusion; and(vii) the binding effect of a class judgment on members under Rule 23(c)(3). Although the Court does not condone alterations of Court-approved notice, the content of the notice distributed to the Class is approved because the notices as distributed were adequate to meet Rule 23(c)(2)(B) and (e) requirements. Notice Distribution Rule 23(c)(2)(B) requires the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. Such notice can be given by United States mail, electronic means, or other appropriate means. Direct Notice Direct notice was distributed by email and United States first class mail. Settlement Administrator timely sent 51,282 emails containing the long form notice. Of those notices, 2,038 bounced and 239 putative Class members unsubscribed. Settlement Administrator timely sent 3,093 summary notices by first class mail to putative Class members who unsubscribed, whose email notices were returned as undeliverable, or for whom only a physical address was available. Of the notices sent by U.S. mail, 247 were returned as undeliverable. Upon return of undeliverable notices, the Settlement Administrator was to perform an address search and re-send them to new addresses no later than March 14, 2019, however, notices were not re-sent until May 14, 2019. Accordingly, 157 notices were sent two months late and only three weeks before the claims due date. No justification for the failure to follow the Court's orders has been provided. Settlement Fairness Class action settlements require court approval. Settlement of class actions presents unique due process concerns for absent class members[in part because class counsel may collude with the defendants, tacitly reducing the overall settlement in return for a higher attorney's fee. The Court's role in reviewing class action settlements is to police the inherent tensions among class representation, defendant's interests in minimizing the cost of the total settlement package, and class counsel's interest in fees. The Court received one Objection. The Objection, however, was not to the Settlement fairness or class action certification. The objector disagrees with the law and the reality that manufacturers of quality products may be subject to lawsuits for various reasons. Because the Objection does not speak to any fairness factors, it does not warrant rejecting the Settlement. Adequacy of Representation and Arm's Length Negotiations As relevant to class action settlements, Rule 23(e)(2)(A) and (B) require consideration whether the class representatives and class counsel adequately represented the class, and whether the proposed settlement was negotiated at arm's length. Also relevant to the inquiry are the terms of any proposed attorneys' fees, including timing of payment. Fed. R. Civ. Proc. 23(e)(2)(C)(iii). Adequacy of Class Counsel's Representation The proposed Settlement provides for injunctive and monetary relief. The injunctive relief requires that for five years, Defendant's shoes with less than 95% domestic content less prominently advertise the Made in USA label and disclose that the Made in USA collection contains domestic value of 70% or greater. In the monetary relief portion of the Settlement, Defendant agreed to create a non-reversionary Escrow Fund of $750,000 from which $200,000 is to be paid to the Settlement Administrator for Administrative Costs, $15,000 for Plaintiffs incentive awards, subject to Court approval, with the balance to be used for Class member claims and, if any funds remain, for cy pres awards. Defendant also agreed to pay without objection up to $650,000 to Class Counsel for attorneys' fees, costs and litigation expenses, subject to Court approval. Accordingly, the Settlement obligates Defendant to pay up to $1.4 million in exchange for dismissal of this action and release of claims, including Class members' claims. Based on the submissions made in support of the Attorneys' Fee Motion and Final Approval Motion, as well as on the docket in this case, the Class Counsel had sufficient information to negotiate a fair Settlement and had adequately prosecuted this action with Plaintiffs' assistance. A full-text copy of the District Court's July 29, 2019 Order is available at https://tinyurl.com/yyofnlgl from Leagle.com. Sheila Dashnaw, individually, and on behalf of all others similarly situated, William Meier, individually, and on behalf of all others similarly situated & Sherryl Jones, individually, and on behalf of all others similarly situated, Plaintiffs, represented by Jason Hoon Kim -- O'Melveny and Myers, Todd M. Schneider -- tschneider@schneiderwallace.com -- Schneider Wallace Cottrell Brayton Konecky LLP & Aubry Wand -- awand@wandlawfirm.com -- The Wand Law Firm. New Balance Athletics, Inc., a corporation, Defendant, represented by Elizabeth E. Brenckman -- Eebrenckman@orrick.com -- Orrick, Herrington & Sutcliffe LLP, pro hac vice, Garrett K. Sakimae -- sakimae@fr.com -- Fish & Richardson P.C.,Laura B. Najemy -- najemy@fr.com -- Orrick, Herrington & Sutcliffe, LLP, pro hac vice, Mark Puzella -- puzella@fr.com -- Fish & Richardson P.C., pro hac vice, Richard David Hosp -- hosp@fr.com -- Orrick, Herrington & Sutcliffe LLP & Sheryl K. Garko -- garko@fr.com -- Orrick, Herrington & Sutcliffe LLP, pro hac vice. The Attorney General of the State of California, Miscellaneous Party, represented by Timothy Dean Lundgren. NEW JERSEY: Ct. Denies Gittens Inmate's Bid to Maintain Class Suit ------------------------------------------------------------------ The United States District Court for the District of New Jersey issued an Opinion denying motion to maintain class action in the case captioned DARIUS GITTENS, Plaintiff, v. MILDRED SCHOLTZ, et al., Defendants. Civil Action No. 18-2519 (RBK)(KMW). (D.N.J.). This case arises from Plaintiff's time at the Burlington County Jail, as a pretrial detainee. Despite Plaintiff's chronic conditions, officials housed him in a cell with two other inmates, and assigned him the floor mattress, which caused Plaintiff a great deal of pain and discomfort. Moreover, Plaintiff's mattress was nine inches from the toilet bowl, which resulted in his cellmates carelessly urinating on Plaintiff and his mattress on a regular basis. The Plaintiff filed the instant Complaint, alleging that Defendants violated his rights under the First, Eighth, and Fourteenth Amendments, as well as related state law claims. He also seeks to bring some of his claims as a class action, naming other detainees who complain of the conditions at the Burlington County Jail. (ECF No. 1, at 29). It appears that Plaintiff is attempting to bring parts of his Complaint as a class action on behalf of some of the inmates at the Burlington County Jail. Under Federal Rule of Civil Procedure 23(a)(4), plaintiffs can only maintain a class action if the class representative will fairly and adequately protect the interests of the class. Here, Plaintiff is a pro se prisoner without formal training in the law. Thus, Plaintiff would not be able to represent the interests of the class and maintain this suit as a class action. Furthermore, Plaintiff no longer resides at the Burlington County Jail and currently resides at Northern State Prison in Newark, New Jersey. It would be extremely difficult for him to lead a multi-prisoner litigation when he is separated from the" other inmates he seeks to lead as a class representative. Accordingly, to the extent Plaintiff seeks to maintain a class action, the Court will deny that request. A full-text copy of the District Court's July 29, 2019 Opinion is available at https://tinyurl.com/yxb9f75a from Leagle.com. DARIUS GITTENS, Plaintiff, pro se. NEW ORIENTAL: Bid to Dismiss Amended Chan Securities Suit Granted ----------------------------------------------------------------- In the case, AMY CHAN, STEVEN WADE, SHUNFENG CHENG, and ELBURN IRISH, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs, v. NEW ORIENTAL EDUCATION & TECHNOLOGY GROUP INC. and CHENGGUANG ZHOU, Defendants, Civ. No. 16-9279 (KSH) (CLW) (D. N.J.), Judge Katherine S. Hayden of the U.S. District Court for the District of New Jersey granted the Defendants' motion to dismiss the amended class action complaint. New Oriental is a China-based educational services company that has historically focused on affording "access to overseas opportunities to Chinese citizens," including through English language courses and preparation for foreign standardized tests. It is purportedly the "largest provider of private educational services in China based on number of program offerings, total student enrollments, and geographic presence" and "offers a range of educational programs, services, and products, including English and foreign language training, test preparation courses for admissions, and assessment tests." The company's ADSs trade on the New York Stock Exchange. According to the Pplaintiffs, New Oriental has historically dominated the market for Chinese students seeking to prepare to take foreign admissions tests like the SAT. Since 2008, the company has, through its subsidiary, Beijing New Oriental Vision Overseas Consulting Co., Ltd. ("EDU Overseas"), engaged in admissions counseling or consulting for students applying to foreign universities and in providing "assistance" to students with their applications. Zhou was the president of EDU Overseas from 2008 to 2016, when he became CEO of New Oriental. In securities filings, New Oriental has claimed that EDU Overseas' business is to consult with Chinese citizens to assist them in applying to foreign schools. The Plaintiffs aver, however, that EDU Overseas goes much further, and that it provides its customers with more than just advice. The amended complaint alleges that the alleged true nature of EDU Overseas' business -- and consequently the purported falsity of New Oriental's statements about the business to that point -- was revealed in a Dec. 2, 2016 Reuters article. The article reported widespread practices of Chinese education companies, including New Oriental, that purportedly constituted "college application fraud." Three former New Oriental employees, David Shi, Olivia Qiu, and Alan Li, claimed that they were the ghost-writers of student essays and teacher recommendations that were sent to universities in support of student applications. The Plaintiffs allege that the Reuters article alerted the market and investors to the true nature of New Oriental's business, resulting in a drop in stock price that damaged investors. The purported discrepancies between New Oriental's public statements and characterizations about EDU Overseas' business, including in a securities filing, and the picture painted by the former employees and the documents discussed above form the basis for the Plaintiffs' claims. Specifically, they assert that New Oriental's Form 20-F, filed with the SEC on Sept. 27, 2016, for the fiscal year ended May 31, 2016, made several actionable misrepresentations. They also contend that New Oriental's English-language website mischaracterized the nature of EDU Overseas' business. On Dec. 3, 2016, New Oriental issued a Chinese-language press release denying the claims in the Reuters article, contending that EDU Overseas had always prohibited falsification and that the falsification claims in the article came "essentially from former employees." Two days later, on Dec. 5, 2016, New Oriental issued an English-language press release that also denied the assertions in the Reuters article. On a Dec. 15, 2016 conference call with investors, New Oriental executives purportedly "highlighted that EDU's business operations are governed by strict policies and stringent procedures with disciplined controls of its employee behavior," and, although the AIRC investigation was pending, management expressed that it expected a limited financial impact. The Plaintiffs filed their original complaint on Dec. 15, 2016, and the amended complaint on May 30, 2017. The amended complaint was filed on behalf of a putative class consisting of all persons or entities who purchased or otherwise acquired New Oriental ADSs traded on the NYSE during the Class Period, defined as Sept. 28, 2016 through Dec. 1, 2016, inclusive. New Oriental, joined later by Zhou, has moved to dismiss the amended complaint for failure to state a claim upon which relief may be granted, and for failure to meet the heightened pleading requirements of Fed. R. Civ. P. 9(b) and the Private Securities Litigation Reform Act ("PSLRA"). The Defendants argue that the amended complaint fails to allege an actionable misstatement or omission; that it does not adequately allege the existence of scienter; and that it fails to plead loss causation. The Plaintiffs dispute that they failed to plausibly plead these elements of their claims under Section 10(b) and Rule 10b-5. Judge Hayden finds that the facts in the amended complaint do not indicate that New Oriental acted with the required state of mind, nor is the inference that New Oriental knew about the alleged fraud "at least as compelling as any plausible opposing inference of nonfraudulent intent. The confidential witnesses admit to their own misdeeds and broadly paint their counterparts with the same brush. When it comes to ascribing knowledge to management, however, they resort to "must have knowns" for support. The Plaintiffs make no effort to supply plausible detail for the confidential witnesses' conclusion about management and Zhou, let alone a factual basis from which a strong inference can be drawn. As such, the amended complaint fails to allege scienter with the necessary particularity. The Plaintiffs allege that Zhou is personally liable because he had "direct and supervisory involvement in the day-to-day operations of the company" and is "therefore presumed to have had the power to control or influence the particular transactions giving rise to the securities violations" alleged. But because no Section 10(a) claim has been adequately pleaded, the Plaintiffs' claim against Zhou under Section 20(a) must likewise be dismissed. JUdge Hayden concludes that the Plaintiffs' amended complaint fails to state with particularity any material misrepresentation or omission by New Oriental or any facts that would allow a strong inference of scienter. Accordingly, she granted the motion to dismiss. An appropriate order will issue. A full-text copy of the Court's July 3, 2019 Opinion is available at https://is.gd/wrRYy9 from Leagle.com. AMY CHAN, STEVEN WADE & ELBURN IRISH, Individually and on behalf of all others similarly situated, Plaintiffs, represented by JING CHEN -- jchen@rosenlegal.com -- THE ROSEN LAW FIRM & LAURENCE M. ROSEN -- lrosen@rosenlegal.com -- THE ROSEN LAW FIRM, PA. SHUNFENG CHENG, Plaintiff, represented by JAMES E. CECCHI -- JCecchi@carellabyrne.com -- CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C., JING CHEN, THE ROSEN LAW FIRM & LAURENCE M. ROSEN, THE ROSEN LAW FIRM, PA. NEW ORIENTAL EDUCATION & TECHNOLOGY GROUP INC. & CHENGGANG ZHOU, Defendants, represented by SCOTT DAVID MUSOFF -- scott.musoff@skadden.com -- SKADDEN ARPS SLATE MEAGHER & FLOM LLP. OMNI FAMILY: Removes Ower Suit to Eastern District of California ---------------------------------------------------------------- Omni Family Health removes case captioned MARILOU OWER, individually, and aon behalf of other members of the general public similarly situated, the Plaintiff, vs. OMNI FAMILY HEALTH, a California corporation; and DOES 1 through 100, inclusive, Case No. BCV-19-101775 (Filed June 24, 2019), from the California Superior Court for the County of Kern, to the United States of Eastern District of California on July 31, 2019. The Eastern District of California Court Clerk assigned Case No. 1:19-at-00560 to the proceeding. The suit alleges violation of the Fair Credit Reporting Act. Omni Family Health provides quality healthcare services throughout Kern County.[BN] Attorneys for the Defendant are: T. Scott Belden, Esq. Jazmine Flores, Esq. BELDEN BLAINE RAYTIS, LLP 5016 California Avenue, Suite 3 Bakersfield, CA 93309 Telephone: (661) 864 7872 Fascimile: (661) 878 9797 E-mail: scott@bbr.law jazmine@bbr.law PERFORMANCE TRANSPORT: Sonia Seeks Overtime Wages for Workers ------------------------------------------------------------- MATT SONIA, Individually and For Others Similarly Situated, the Plaintiff, vs. PERFORMANCE TRANSPORT, LLC, the Defendant, Case No. 1:19-cv-00163-DLH-CRH (D.N.D., July 31, 2019), seeks to recover unpaid overtime wages and other damages from Performance Transport, LLC under the Fair Labor Standards. According to the complaint, Sonia and the Putative Class Members regularly work more than 40 hours a week. But Performance classifies these workers as independent contractors to avoid paying them overtime. Instead, Performance pays these workers the same hourly rate for all hours worked, including those in excess of 40 in a workweek ("straight time for overtime"), the lawsuit says. Performance provides transportation and logistics services to the oil and gas industry.[BN] Attorneys for the Plaintiffs: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Taylor A. Jones, Esq. JOSEPHSON DUNLAP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: 713 352-1100 Facsimile: 713-352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com tjones@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: 713-877-8788 Facsimile: 713-877-8065 E-mail: rburch@brucknerburch.com PETES TOWING: Nelson Seeks Unpaid Minimum, Overtime Wages --------------------------------------------------------- JOHN A. NELSON, on behalf of himself and others similarly situated, Plaintiff, v. PETES TOWING AND RECOVERY, LLC and PETER DIMILTA, JR., individually, Defendants, Case No. 8:19-cv-01899-WFJ-AAS (M.D. Fla., Aug. 2, 2019) is an action for damages and for declaratory relief, under the Fair Labor Standards Act ("FLSA") to recover unpaid minimum wages and overtime, an additional equal amount as liquidated damages, obtain declaratory relief, and reasonable attorney's fees and costs and relief as available under Florida common law. As a tow truck driver who never left the state of Florida, Plaintiff was not exempt from the minimum wage and overtime requirement of the FLSA. By Plaintiff's estimates, he routinely worked more than 70 hours or more in a workweek. During his employment with Defendant, Plaintiff was not paid time and one-half his regular rate of pay for all hours worked in excess of 40 within a work week during one or more weeks of employment, says the complaint. Plaintiff was employed by Defendants as an tow truck driver and performed related activities for Defendants in and around Pinellas County, Florida. Defendants operate a tow truck business in and around Pinellas County and surrounding counties.[BN] The Plaintiff is represented by: BRIANNA A. JORDAN, ESQ. Morgan & Morgan, P.A. 201 N. Franklin Street, Suite 700 Tampa, FL 33602 Direct No. 813-393-5457 Facsimile: 813-393-5481 Email: bjordan@forthepeople.com PETROLEO BRASILIERO: Court Denies Cornell's Sect 1782 Discovery Bid ------------------------------------------------------------------- The United States District Court for the Southern District of New York issued an Opinion and Order denying Cornell University's Motion to Order Discovery in the case captioned In re: PETROBRAS SECURITIES LITIGATION. No. 14-cv-9662 (JSR). (S.D.N.Y.). Cornell University moves the Court to intervene in the securities fraud class action against Petroleo Brasiliero S.A. (Petrobras) and for an order under 28 U.S.C. Section 1782 authorizing discovery for use in a foreign proceeding. Petitioner Cornell University is a member of the class of plaintiffs suing Petrobras in the Southern District of New York over allegations that Petrobras violated U.S. securities laws by making materially misleading statements in connection with the sale of American Depository Receipts (ADRs) on the New York Stock Exchange. Cornell is now proceeding against Petrobras before the Bovespa's Market Arbitration Chamber (the CAM), alleging that the same fraudulent misstatements underlying the U.S. class action also caused Cornell to incur losses on the Petrobras securities that Cornell purchased on the Bovespa. Motion for an Order Under 28 U.S.C. Section 1782 Authorizing Discovery for Use in a Foreign Proceeding Legal Framework 28 U.S.C. Section 1782(a) authorizes the district court of the district in which a person resides or is found to order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. Either the foreign tribunal itself or any interested person may move the court to compel discovery. Before deciding whether to exercise this discretion, however, the district court must first conclude that the petition satisfies three mandatory requirements found in the language of the statute: first, the person from whom the applicant seeks to compel discovery must reside or be found in the district in which the court sits; second, the discovery must be for use in a foreign proceeding before a foreign or international tribunal and third, the moving party must be the foreign or international tribunal itself or any interested person. Cornell's motion fails to satisfy the first and second requirements. Petrobras is not found in the Southern District of New York, and the CAM is not a foreign or international tribunal. The motion is therefore denied. Petrobras is not Found in the District Petrobras argues that Section 1782's resides or is found language means that a district court must have personal jurisdiction over the party from whom the petitioner seeks discovery. Petrobras reasons that because it is a foreign corporation that does not maintain its principal place of business in New York, this Court lacks general personal jurisdiction under Daimler AG v. Bauman, 571 U.S. 117 (2014) and BNSF Railway Co. v. Tyrrell, 137 S.Ct. 1549 (2017). The threshold question for this Court to decide is whether the resides or is found language in Section 1782 means that a court must have personal jurisdiction over the party from whom the movant seeks discovery. There is no binding precedent on this question. It is true that the decisions of two Courts in this District could be read to suggest that a foreign person was found in the district for purposes of Section 1782 based on business activities in New York that would not confer general personal jurisdiction under Daimler and BNSF. It appears, however, that the parties in these cases never raised arguments about personal jurisdiction, and in any event, the opinions do not discuss the issue, so they are of little weight as far as this issue is concerned. This Court therefore concludes that it should apply a personal jurisdiction analysis to determine whether Petrobras is found in the district for the purposes of the Section 1782 motion. General Personal Jurisdiction The parties do not argue that this Court has general personal jurisdiction over Petrobras, and the Court clearly does not. A corporation is subject to the general personal jurisdiction of the courts in the states of its incorporation and its principal place of business. In an exceptional case, a corporation could become subject to the personal jurisdiction of the courts in an additional state if the corporation's contacts with that state are so continuous and systematic as to render it essentially at home. But even extensive business contacts such as significant physical infrastructure and thousands of employees in a particular state do not constitute such an exceptional case. Petrobras is incorporated and maintains its principal place of business in Brazil. While the company maintained an office in Manhattan at the time Cornell filed its motion and sells ADRs on the New York Stock Exchange, these business contacts are far from sufficient to subject Petrobras to the general personal jurisdiction of courts in New York. Specific Personal Jurisdiction A closer question is whether this Court has specific personal jurisdiction over Petrobras with respect to this motion. Cornell argues that the Court does, because this Court undoubtedly has personal jurisdiction in the underlying securities fraud class action, and because Cornell simply seeks access to the discovery that is already conducted in this case. Courts in the Second Circuit employ a two-step analysis to determine whether they have specific jurisdiction over a claim. First, the court must decide if the defendant has purposefully directed his activities at the forum and the litigation arises out of or relates to those activities. Second, once the court has established these minimum contacts, it determines whether the assertion of personal jurisdiction would comport with fair play and substantial justice. The relevant facts here presented are somewhat different from the cases cited above in which courts in this District held that they lacked personal jurisdiction over a Section 1782 respondent. Neither the discovery request in In re Sargeant, 278 F.Supp.3d 814, nor that in In re Del Valle Ruiz, 342 F.Supp.3d 448, for example, involved foreign corporations that were already the defendants in a related U.S. action, as well as documents that the corporation had already produced in that action. Nevertheless, Petrobras has the better argument. Cornell seeks discovery under Section 1782 for use in the CAM arbitration, which alleges misconduct by Petrobras that occurred entirely in Brazil. The test for personal jurisdiction therefore fails at the first step, because Petrobras did not purposefully direct its activities relevant to the CAM arbitration at the forum. This Court holds that Petrobras is not found in the District for the purposes of Section 1782. The CAM is not a Foreign or International Tribunal Petrobras also urges this Court to reject Cornell's Section 1782 motion on the independent ground that the CAM is not a foreign or international tribunal. In Petrobras's view, the term in the statute excludes arbitral bodies established by private parties. Cornell does not dispute the fact that the CAM is a private entity, but argues for a broader reading of the statutory language. Here, unlike the previous question, there is a Second Circuit precedent directly on point. In NBC v. Bear Stearns, 165 F.3d 184, 191 (2d Cir. 1999), the Second Circuit held that an arbitral body established by private parties was not a foreign tribunal for the purposes of Section 1782. Cornell responds, however, that the Supreme Court effectively abrogated NBC in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004). In dicta, Intel quotes a 1965 law review article by Professor Hans Smit for the proposition that the term tribunal includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts. According to Cornell, the Supreme Court's reference to arbitral tribunals is enough to overturn NBC's holding. And indeed, Cornell has some authorities on its side. There have been three post-Intel cases in this District examining the question of whether Intel overruled NBC's holding that a private arbitral body is not a foreign tribunal for the purposes of Section 1782, and two of them held that it did. Upon consideration of these conflicting cases, as well as the arguments of the parties, this Court concludes that NBC remains good law. To begin with, the Court is doubtful that a passing dictum in a Supreme Court opinion taken, moreover, out of its context is sufficient to abrogate an extensively-reasoned and directly on-point Second Circuit precedent. More importantly, it is far from clear that the quotation referencing arbitral tribunals in Inteleven casts doubt on the holding of NBC. Recall that NBC held that arbitral bodies created by governments or intergovernmental agreements are tribunals for the purposes of Section 1782, but that arbitral bodies created by private parties are not. The quote in Intel from Professor Smit's 1965 article, simply says that arbitral tribunals are within the scope of Section 1782, not that private arbitral tribunals are. Professor Smit's explanation, therefore, is not inconsistent with NBC, because the author may only have been referring to arbitral tribunals created by governments and intergovernmental agreements. This is not only a plausible reading of his words, but is in fact probably what he meant, given his other writing on the topic. This Court accordingly further denies Cornell's Section 1782 motion on the independent ground that NBC remains good law and that the statutory term foreign or international tribunal does not include an arbitration chamber created by private parties. A full-text copy of the District Court's July 29, 2019 Opinion and Order is available at https://tinyurl.com/yxc5fsl8 from Leagle.com. Universities Superannuation Scheme Limited, Lead Plaintiff, represented by Emma Gilmore -- egilmore@pomlaw.com -- Pomerantz LLP, Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, Marc Ian Gross -- migross@pomlaw.com -- Pomerantz LLP,Adam G. Kurtz -- agkurtz@pomlaw.com -- E72 Law, Brenda F. Szydlo -- bszydlo@pomlaw.com -- Pomerantz LLP, Jennifer Pafiti -- jpafiti@rgrdlaw.com -- Pomerantz LLP, pro hac vice, Jennifer Banner Sobers -- jbsobers@pomlaw.com -- Pomerantz LLP, John Anthony Kehoe -- jkehoe@pomlaw.com -- Pomerantz LLP, Justin Solomon Nematzadeh -- jnematzadeh@pomlaw.com -- DiCello Levitt, Marc Christian Gorrie -- mgorrie@pomlaw.com -- Pomerantz LLP, Patrick Vincent Dahlstrom -- pdahlstrom@pomlaw.com -- Pomerantz LLP & Susan Jessica Weiswasser -- sjweiswasser@pomlaw.com -- Pomerantz LLP. Jose Sergio Gabrielli, Defendant, represented by Roger Allen Cooper -- racooper@cgsh.com -- Cleary Gottlieb, Edward M. Spiro -- espiro@maglaw.com -- Morvillo, Abramowitz, Grand, Iason, & Anello P.C., Elizabeth Vicens -- evicens@cgsh.com -- Cleary Gottlieb, Elkan Abramowitz -- eabramowitz@maglaw.com -- Morvillo, Abramowitz, Grand, Iason, & Anello P.C. & Jasmine Marie Juteau -- jjuteau@maglaw.com -- Morvillo, Abramowitz, Grand, Iason, & Anello P.C. BB Securities Ltd., Defendant, represented by Albert L. Hogan, III -- al.hogan@skadden.com -- Skadden, Arps, Slate, Meagher & Flom, LLP, Jeremy A. Berman -- jeremy.berman@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP & Michael Scott Bailey -- michael.bailey@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP. PREMERA BLUE: $74MM Settlement in Data Breach Suit Has Prelim OK ----------------------------------------------------------------- The United States District Court for the District of Oregon issued an Opinion and Order granting Plaintiffs' Motion for Preliminary Approval of Class Action Settlement in the case captioned IN RE: PREMERA BLUE CROSS CUSTOMER DATA SECURITY BREACH LITIGATION. This Document Relates to All Actions. Case No. 3:15-md-2633-SI. (D. Or.). Premera Blue Cross (Premera) is a provider and servicer of healthcare benefits. Premera publicly disclosed that its computer network had been breached (Data Breach), compromising the confidential information of approximately 11 million current and former members, affiliated members, and employees of Premera. Plaintiffs filed a First Amended Consolidated Class Action Allegation Complaint. Plaintiffs alleged that the Data Breach began in May 2014 and went undetected for almost a year and that after Premera learned of the breach, Premera unreasonably delayed in notifying all affected individuals. Preliminary Certification of the Settlement Class The Plaintiffs request preliminary certification for settlement purposes only of a Settlement Class defined as: All persons in the United States whose Personal Information was stored on Premera's computer network systems that was compromised in the Security Incident as publicly disclosed on March 17, 2015. Excluded from the Settlement Class are: (1) the Judge presiding over the Action, and members of his family (2) the Defendant, its subsidiaries, parent companies, successors, predecessors, and any entity in which the Defendant or its parents have a controlling interest and their current or former officers and directors (3) Persons who properly execute and submit a request for exclusion prior to the expiration of the Opt-Out Period and (4) the successors or assigns of any such excluded Persons. Rule 23(a) Numerosity In this district, there is a rough rule of thumb that 40 class members is sufficient to meet the numerosity requirement. With an alleged class size of approximately 10.6 million people, the Court finds that the numerosity requirement is met. Commonality In order to satisfy the commonality requirement, Plaintiffs must show that the class members suffered the same injury that their claims depend upon a common contention. The alleged harm is that all purported class members had their Sensitive Information accessed due to Premera's challenged conduct and inaction. There are many common issues of law and fact. These include whether Premera's data security practices were sufficient, whether the contracts issued by Premera included enforceable data security promises, whether Premera engaged in unfair or deceptive business practices with its data security practices or response to the Data Breach, whether the Data Breach compromised class members' Sensitive Information, and whether class members are entitled to damages as a result of Premera's conduct. The Court finds that the commonality requirement is satisfied. Typicality In order to meet the typicality requirement, Plaintiffs must show that the named parties' claims or defenses are typical of the claims or defenses of the class. To determine whether claims and defenses are typical, courts often look to 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. In this case, the claims of the Representative Plaintiffs are reasonably co-extensive with those of the absent class members. They all allegedly suffered the same or similar injury from the same alleged conduct by Premera. The Court finds that the typicality requirement is satisfied. Adequacy of representation Rule 23(a)(4) states that before a class can be certified, a court must find that the representative parties will fairly and adequately protect the interests of the class. This requirement turns on two questions: (1) whether the named plaintiffs and their counsel have any conflicts of interest with other class member and (2) whether the named plaintiffs and their counsel will prosecute the action vigorously on behalf of the class. During the briefing on Plaintiffs' motion for class certification, Premera argued that Representative Plaintiffs are inadequate because they are abandoning significant individual claims of identity theft which likely could not be certified as a class due to the predominance of individual issues in favor of smaller potential classwide damages for loss of value of Sensitive Information and overpayment of health insurance premiums or a market price premium damages theory. Premera argued that abandoning identity theft damages constitutes claim splitting to the detriment of absent class members. Premera asserted that certification cannot be purchased at the price of presenting putative class members with significant risks of being told later that they had impermissibly split a single cause of action. The Court finds that Representative Plaintiffs share an interest with absent class members and do not have claims adverse to absent class members or that would benefit Representative Plaintiffs to the detriment of absent class members. The Court also finds that the Representative Plaintiffs and class counsel will prosecute this action vigorously on behalf of the class. The Court specifically selected class counsel for their extensive experience in prosecuting complex class actions. Class counsel has vigorously prosecuted the case thus far, including: responding to two motions to dismiss; obtaining and reviewing extensive discovery; filing several discovery motions, a sanctions motion, and motions to strike portions of the testimony of Premera's experts; and moving for class certification. Class Counsel has demonstrated their willingness to continue prosecuting this case, including taking this matter to trial if necessary. Accordingly, the Court finds that the Representative Plaintiffs and Class Counsel are adequate to represent the class. Ascertainability Rule 23 also requires, at least implicitly, that the members of the proposed class be objectively ascertainable. A proposed class must be precise, objective and presently ascertainable. Class members must be identifiable through a manageable process that does not require much, if any, individual factual inquiry. The purported class members have been identified through Premera's records. The Court finds that any ascertainability requirement is met. Rule 23(b)(3) Rule 23(b)(3) requires a court to find that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Predominance There is substantial overlap between the test for commonality under Rule 23(a)(2) and the predominance test under 23(b)(3). The predominance test, however, is far more demanding and asks whether proposed classes are sufficiently cohesive to warrant adjudication by representation. In the class action context, choice of law should be considered as part of the predominance inquiry. The Settlement seeks to resolve four factually related causes of action: nationwide consumer protection act claims (CPA), nationwide negligence claims, nationwide breach of contract claims, and claims under California's Confidentiality of Medical Information Act (CMIA). Plaintiffs argue, and Premera does not object, that Washington law applies to the nationwide claims and California law applies to the CMIA claims. Choice of law In briefing the motion for class certification, Plaintiffs argued that Washington's choice-of-law rules should apply because Representative Plaintiffs are all from cases that were transferred from the Western District of Washington, and thus the forum state for those cases is Washington. The Plaintiffs did not discuss which state's choice-of-law rules should apply in their motion for preliminary approval of the Settlement. The Ninth Circuit, however, recently accepted the forum state for purposes of an MDL case as the forum to which the MDL cases were transferred to, not from, in noting that generally when a federal court sits in diversity the forum state's choice-of-law rules apply, particularly absent argument by one of the parties to use the choice-of-law rules of a different state. Notably, Washington and Oregon apply the same choice-of-law analysis first determining whether an actual conflict exists and then applying the most significant relationship test. Both jurisdictions also look to Section 148 of the Restatement Conflict of Laws when considering claims that sound in fraud. Thus, the analysis is not meaningfully different, regardless of which state's choice-of-law analysis is applied. The Court applies choice-of-law rules of Oregon, the forum state. Negligence and unfair practices claims The Court presumes that there are conflicts between the law of Oregon and the laws and interests of various other states with respect to Plaintiffs' CPA and negligence claims. The Court therefore applies the most significant relationship test. The Plaintiffs' remaining unfair practices claim under the CPA is that Premera did not provide adequate data security. This claim does not sound in fraud and therefore is analyzed under Section 145. Plaintiffs' negligence claim is also analyzed under Section 145. The contacts to be weighed in Restatement Conflict of Laws Section 145 are: (a) the place where the injury occurred (b) the place where the conduct causing the injury occurred (c) the domicile, residence, place of incorporation, and place of business of the parties and (d) the place where the relationship, if any, between the parties is centered. A court also must evaluate the interests and policies of the potentially concerned jurisdictions by applying the factors set forth in Restatement Conflict of Laws Section 6. This approach is not merely to count contacts, but rather to consider the state that "has the most significant contacts with this dispute. The place where the relationship of the parties is centered, for purposes of the unfair practices claim alleging Premera's provision of inadequate data security, is Washington. Washington is where the servers housing Plaintiffs' Sensitive Information resided, Premera implemented its data security, Premera employees received their allegedly inadequate training, the Premera employee opened the email providing access to the hackers, and the hackers were able to access the Sensitive Information. Although there is some contact with Plaintiffs' various home states because Plaintiffs reside there, suffered injury there, and some provided Sensitive Information from there, that contact is more attenuated with the claim of Premera's inadequate provision of data security. Premera did not provide data security in any state other than Washington. The contacts with other states are more fortuitous than in the usual consumer protection case because where a particular plaintiff lives is not directly related to Premera's provision of data security, unlike consumer-protection cases involving the marketing and sale of goods to a consumer in a different state, or when products are purchased and readily could be taken to another state. For Plaintiffs' negligence claims, there are multiple contacts within the relationship between Premera and the putative class members. Premera contracts to provide services for employers in Washington, Alaska, and Oregon. These employers, however, may have employees in all fifty states. Premera contracts with individuals in Washington and Alaska. Premera provides processing services for BlueCard members who receive health care in Washington. The bulk of these relationships, therefore, is in Washington. Furthermore, although the relationship between the putative class members and Premera involves contacts with more than one location, the place where the conduct causing the injury occurred is Washington. Ultimately, when the relationship is not clearly centered in one location, this factor bears little weight. Although there are many relationships and many relevant locations, the most dominant location is Washington. Considering the factors and looking beyond merely counting contacts, the Court finds that the most substantive contact is the location causing the injury, which is Washington. Considering the general policy concerns of Restatement Conflict of Laws Section 6 and each state's CPA and similar laws also supports the application of Washington law to Plaintiffs' unfair practices claim. Some of these interests were discussed above in considering foreign state contacts. Additionally, Washington's interest in having businesses within its state comply with its statutes and provide adequate data security is greater than the interest of other states in having an out-of-state business provide adequate data security. Washington also has a paramount interest in enforcing its CPA against one of its own corporate citizens. As discussed above, other state's interests in protecting their consumers are not as strong when the connection to that state is more fortuitous and there is no product sale or other transaction at issue. Under the facts of this data breach, the Court finds the choice-of-law interests better served by applying Washington law, where Premera is located, the data was maintained, the data security allegedly was inferior, and the breach occurred. Similarly, some other states do not enforce a duty to maintain confidential information. Again, the interests of those state in protecting their resident companies from such a duty is weakened when the defendant is a nonresident. To the extent Washington does enforce a duty to maintain confidential information, its interest in enacting and enforcing that duty on its resident corporations is stronger than a different state's interest in allowing a nonresident corporation not to be subject to such a duty. Considering the factors in Restatement Conflicts of Law Section 6 and the purposes of each state's law, the Court finds application of Washington law to be appropriate. Breach of contract claim The Plaintiffs' breach of contract claim is based on the Privacy Notice. Contracts by Premera were entered into in Alaska, Oregon, and Washington. The Court need not conduct a choice-of-law analysis on this claim because common issues predominate regardless of the law applied, as discussed below. CMIA claim Plaintiffs' CMIA claim involves only Class Members who resided in California as of March 17, 2015, and asserts a claim under California law. Although Premera's conduct occurred in Washington, Premera offered insurance to persons in California knowing it was subjecting itself to additional statutory protections put in place by the California legislature. California has a significant interest in enforcing its statutory protections with respect to its citizens. Thus, California has the most significant interest with respect to this claim. The application of California law, therefore, is appropriate. Claim specific application CPA unfair practices claim Whether Premera implemented proper data security is a general question relating to Premera's practices and procedures and does not relate to individual class members' conduct. Premera is obligated under HIPAA to protect all Sensitive Information on Premera's servers. Determining the proximate cause of harm to Class Members is a fact question that involves common proof, such as whether Premera had adequate data security, whether Premera's lax security led to the data breach, and whether there was exfiltration of data. Additionally, under Washington law reliance is not an element of this claim. The unfair practices claim is not a claim involving deception. The Washington Supreme Court acknowledged that unfair could be different from deceptive under Washington's CPA. Challenges to the legal sufficiency of this claim (including whether it is nothing more than a negligence claim and impermissible under the CPA) and would survive on the merits is a uniform question for the entire class and does not pose individualized questions. Accordingly, this claim does not present a predominance issue. The Court finds common issues predominate with respect to Plaintiffs' unfair practices CPA claim. Negligence claim To prove a negligence claim under Washington law, a plaintiff must show: (1) the existence of a duty (2) breach of that duty (3) resulting in injury and (4) proximate cause. These elements can be resolved on a classwide basis, because Plaintiffs' negligence claim predominantly turns on whether Premera provided adequate data security. Premera's duty, if any, to protect Sensitive Information, would be owed classwide and whether that duty was breached also would be a class question. Proximate cause similarly would be shown by class wide evidence. Plaintiffs also had two theories of damages that involved classwide proof and apply uniformly. Thus, common issues of law and fact predominate. Breach of contract claim The key issues of interpretation and breach asserted in this case do not require individualized adjudication. The central issue of breach turns on the common question of whether Premera's security measures are adequate. The central issues of interpretation are whether Premera's contracts incorporated by reference the Privacy Notice, whether the Privacy Notice created any obligation by Premera, and whether Premera bears legal responsibility for the privacy notice sent by self-funded employers. All of those involve common issues of law and fact and do not require the resolution of individualized inquiries. The basic elements of breach of contract are the same across states. The Court had identified a material difference between Oregon and Washington law relating to Plaintiffs' alternative theory of breach of an implied term in the express contract in its opinion on Premera's second motion to dismiss. Plaintiffs, however, are not pursuing that theory. Plaintiffs are pursuing only a theory of breach of the express terms of the contract. Although the Court does not find any material conflict with applying Washington law to the basic elements of breach of contract, Plaintiffs' contract allegations also include that the Privacy Notice was incorporated into the parties' contract by reference. There are differences between Oregon, Alaska, and Washington law on how documents are incorporated by reference into a contract. Under Oregon law, one document need not expressly incorporate the other by reference if the connection between them is unmistakable. Washington law, however, requires the parties to a contract clearly and unequivocally incorporate by reference into their contract some other document. Under Alaska law, parties do not undertake obligations contained in a separate document unless their contract clearly says so. A reference in a contract to another document will incorporate the other document only to the extent indicated and for the specific purpose indicated. Accordingly, the Court finds that there are material differences between Oregon, Washington, and Alaska law on how documents are incorporated by reference. The fact that there are material differences in the laws of the three states on this point of contract law, however, does not preclude certification of a nationwide class. Because the individual state law issues do not swamp the common issues and there are only three states involved, the Court finds that common issues predominate even when portions of Plaintiffs' breach of contract claims are governed by state law. CMIA claim California's CMIA requires covered entities to maintain medical information in a manner that preserves the confidentiality of the information and establishes than any such entity who negligently creates, maintains, preserves, stores, abandons, destroys, or disposes of medical information shall be subject to the remedies and penalties set forth in the act. Protected medical information includes information regarding a patient's medical history, mental or physical condition, or treatment and individually identifiable information such as the patient's name, address, electronic mail address, telephone number, or social security number, or other information that, alone or in combination with other publicly available information, reveals the individual's identity. To state a claim under the CMIA, a plaintiff must show that the defendant had the plaintiff's medical information, negligently maintained, preserved, stored, abandoned, destroyed, or disposed of that information, and that as a result the confidential nature of the plaintiff's medical information was breached, meaning that the information was accessed, viewed, or used. The Plaintiffs' CMIA claim only includes Class Members who resided in California before March 17, 2015. This claim involves common issues of law and fact. The question of whether Premera had Sensitive Information is not disputed. The question of whether Premera negligently maintained, preserved, or stored the information would be resolved on a classwide basis. The question of whether a third party the alleged hackers accessed the data is also a common question, because it involves common evidence regarding whether data was exported or exfiltrated from Premera's servers. Finally, the question of whether a particular Class Member resided in California during the relevant time period is easily resolved on a classwide basis. Common issues of law and fact predominate with respect to this claim. Superiority Rule 23(b)(3) provides four non-exhaustive factors to consider. These factors are: (A) the class members' interests in individually controlling the prosecution or defense of separate actions (B) the extent and nature of any litigation concerning the controversy already begun by or against class members (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum and (D) the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3). Regarding the first factor, where recovery on an individual basis would be dwarfed by the cost of litigating on an individual basis, this factor weighs in favor of class certification. The amount at stake for putative class members is too small when compared to the cost of litigating individual claims. Even the small percentage of class members who have suffered actual identity theft have claims that are too small. Litigation costs would be quite high, given that the case involves complex technical issues and requires substantial expert testimony. Accordingly, because individual damages pale in comparison to the costs of litigation, this factor points toward certification. Regarding the second factor, the JPML originally transferred 29 related federal cases to this Court for coordinated pretrial proceedings. As additional related actions were filed and brought to the attention of the JPML, they also were transferred. Currently, there are 42 actions pending before this Court. The parties have not identified any other related cases. As articulated by the JPML, the actions share factual questions arising from the same data security breach and centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings, particularly with respect to class certification, and conserve the resources of the parties, their counsel, and the judiciary. This factor thus weighs in favor certification. With respect to the third factor, the JPML explained that this district is a convenient and accessible forum for this litigation and has the necessary judicial resources and expertise to manage this litigation efficiently. The Court agrees that this forum is convenient for Premera, who is headquartered in Washington, and who contracts in Oregon. Plaintiffs are located in all 50 states, but have a higher concentration in Washington, Oregon, and Alaska. This factor is also less important in the context of a settlement because it is likely that the only remaining in-court proceeding will be the final hearing to evaluate whether the Settlement is fair, reasonable, and adequate and to consider the requested attorney's fees and costs and Service Awards. Consequently, this factor also supports certification. The fourth factor requires courts to consider the likely difficulties in managing a class action. Manageability concerns, however, are not relevant in the context of a settlement. Thus, this factor is not applicable. The applicable superiority factors support certification. Conclusion Under Rule 23(a) and Rule 23(b)(3) The Court preliminarily finds that the proposed Settlement Class meets the requirements of Rule 23(a) and Rule 23(b)(3). Accordingly, the Court preliminary certifies, for settlement purposes only, the proposed Settlement Class. Preliminary Approval of the Settlement The Plaintiffs ask the Court preliminarily to find that Settlement Agreement is fair, reasonable, and adequate and that the notice procedures comport with due process. The Court considers the relevant factors as set forth by the Ninth Circuit and previously stated. Strength of Plaintiffs' case and the risk, expense, complexity, and likely duration of further litigation and maintaining class action status through trial. This case is complex, involving evidence spanning multiple years, technical information regarding computer servers and hackers, state-sponsored hacking versus other types of hacking, medical information, the dark web, and the implications of spoliation of a particular server. The parties exchanged 1.5 million pages of documents. The case has been expensive to litigate, and continuing litigation would be time-consuming and add further expense. There is currently pending a motion for partial summary judgment that requires additional briefing, and the case schedule includes additional dispositive motions that the parties anticipate would be filed. If at least some of Plaintiffs' claims survive dispositive motions, the parties would spend significant time and expense preparing for a class action or bellwether trial, possible additional trials in other jurisdictions, and likely appeals. The case schedule that was put on hold and ultimately stricken because of the Settlement included another nearly 11 months of litigation. The motion for class certification was fully briefed and argued at the time of Settlement. Plaintiffs risk that none of their claims would be certified for class treatment, and Premera risks that all or some of Plaintiffs' claims would be certified. If certified, there remains a risk for Plaintiffs that certification would not be able to be maintained throughout trial, including after Premera's dispositive motions were resolved. Considering these three factors the strength of Plaintiffs' case; the risk, expense, complexity, and likely duration of continued litigation; and the risk of maintaining class action status through trial, the Court finds that they weigh in favor of granting approval to the Settlement. The amount offered in settlement The Settlement Agreement provides for both monetary and non-monetary relief. Monetary relief In considering the potential fairness of the recovery, courts often compare the total amount of recovery in a settlement to the estimated total amount of damages that could be recovered if the case was litigated when considering the fairness of the recovery. Nonetheless, it is well-settled law that a cash settlement amounting to only a fraction of the potential recovery does not per se render the settlement inadequate or unfair. The Settlement Agreement provides that Premera will pay $32 million to fund a non-reversionary Qualified Settlement Fund. This fund will pay the costs of recovery to Class Members, attorney fees and costs, Service Award to the Representative Plaintiffs, and the costs to administer the Settlement, including giving notice to Class Members. No less than $10 million will be used to provide the recovery to Class Members. This recovery includes: (1) up to $10,000 per Class Member for reimbursement of proven out-of-pocket damages that can plausibly be traced to the Data Breach, including up to 20 hours of personal time at $20 per hour; (2) a default settlement amount of up to $50 for Class Members who do not have out-of-pocket damages that can plausibly be traced to the Data Breach; (3) up to an additional $50 for Class Members who resided in California as of March 17, 2015, for the CMIA claim; and (4) two years of credit monitoring and insurance services for Class Members, who may choose to delay the start of such services for up to two years if the Class Member already has credit monitoring. Up to $3,500,000 will be set aside for the wholesale purchase of this insurance. If the credit monitoring and insurance services cost less than $3.5 million, the remaining amount will revert to the Qualified Settlement Fund to be distributed to the Class Members on a pro rata basis or to fund additional credit monitoring services. The Plaintiffs argue that the retail value of credit monitoring, and not the wholesale cost, should be considered as the value of the benefit provided to Class Members. The retail value of the plan being offered to the Settlement Class is $19.99 per month, which equals $479.79 for the two-year period. Plaintiffs argue that equals $50,854,560 for every one percent of the class that enrolls in this benefit, before subtracting the cost of the credit monitoring. Because Plaintiffs have not provided the Court with the cost of the credit monitoring, the Court cannot at this juncture make this comparison with any precision. The Court accepts, however, that the benefit to Class Members is greater than the initial estimated $3.5 million wholesale cost that will come out of the Qualified Settlement Fund. This benefit, therefore, has a significant value to the Settlement Class. Non-monetary relief Under the Settlement, Premera also will pay $42 million on improved data security between 2019 and 2022. Improved data security benefits all Class Members, even if they are no longer insured by Premera or a related Blue Cross entity, because Sensitive Information remains stored on Premera's servers. If Premera has improved data security, it will decrease the chance of a future data breach and future harm to Class Members from such a breach. Plaintiffs submit the expert witness declaration of Dr. Robert Vigil, in support of the estimated value of this non-monetary benefit to Class Members. Dr. Vigil used the Cost Approach, which is an accepted methodology to value certain types of intangible assets, including where cost information is known, the intangible asset is new, and the type of value being estimated is the value in continued use by the current owner. Dr. Vigil opines that the value to the Settlement Class of the increased data security Premera will implement is $11,872,000. Although the cash recovery is a mere fraction of what Plaintiffs generally argued they could recover at trial, that does not require a finding that the recovery is not fair, reasonable, or adequate. Considering the cash settlement, the value of the credit monitoring services, the additional non-monetary elief, the risks and weaknesses of Plaintiffs' case, and all of the other circumstances of this Settlement and how it was reached, the recovery is fair, reasonable, and adequate. This factor thus supports approval of the Settlement. The extent of discovery completed and the stage of the proceedings This factor is concerned with whether the parties have sufficient information to make an informed decision about settlement. This case has been pending for four years. The parties have litigated two motions to dismiss, fully briefed and argued the motion for class certification and motions to exclude expert testimony, and Premera filed a motion for partial summary judgment. The parties and their counsel have exchanged 1.5 million pages in document discovery, which they have extensively reviewed. The parties have also conducted more than 50 depositions, including those of eight experts, filed and argued numerous discovery motions, and Plaintiffs filed and argued a motion for sanctions for the spoliation of evidence, which the Court granted in part. This factor, therefore, supports approval. The experience and views of counsel Lead Plaintiffs' Counsel and Liaison Plaintiffs' Counsel are experienced class action litigators. Premera is also represented by experienced counsel. This factor supports approval. The reaction of the class Because there has not yet been notice or a response to the Settlement, this factor is not applicable at this stage of the Court's review. The absence of collusion or other conflicts of interest The Court finds that the Settlement is the product of extensive arm's-length negotiations, with assistance from experienced mediators Judge Gandhi and Mr. Rosen in multiple mediation sessions. There is no evidence of collusion or any other conflict of interest. Premera has and continues to dispute the claims against it and the Action was litigated for nearly four years before the parties reached their proposed Settlement Agreement. After considering the relevant factors and circumstances, the Court finds that the Settlement is fair, reasonable, and adequate to the Settlement Class, and that each Class Member (except those who submit a timely and valid request for exclusion) shall be bound by the Settlement. The persons who timely request exclusion from the Settlement Class will not be members of the Settlement Class, shall have no rights or interests with respect to the Settlement, and shall not be bound by any orders or judgments entered in respect to the Settlement. Accordingly, the Plaintiffs' Unopposed Motion for Preliminary Approval of Proposed Settlement Agreement is granted. A full-text copy of the District Court's July 29, 2019 Opinion and Order is available at https://tinyurl.com/y34dcvtt from Leagle.com. Premera Blue Cross, In Re, represented by Daniel R. Warren -- dwarren@bakerlaw.com -- Baker & Hostetler LLP, pro hac vice, Darin M. Sands -- sandsd@lanepowell.com -- Lane Powell, PC, James A. Sherer -- jsherer@bakerlaw.com -- Baker & Hostetler LLP & Paul G. Karlsgodt -- pkarlsgodt@bakerlaw.com -- Baker & Hostetler LLP. All Plaintiffs, Plaintiff, represented by Arielle S. Wagner- aswagner@locklaw.com -- Lockridge, Grindal and Nauen, P.L. L. P., Chase C. Alvord -- calvord@tousley.com -- Tousley Brain Stephens PLLC, Christopher I. Brain -- cbrain@tousley.com -- Tousley Brain Stephens, PLLC, Jason T. Dennett -- jdennett@tousley.com -- Tousley Brain Stephens PLLC, Kim D. Stephens -- kstephens@tousley.com -- Tousley Brain Stephens PLLC, Yoona Park -- ypark@stollberne.com -- Stoll Stoll Berne Lokting & Shlacchter P.C., Keith S. Dubanevich -- kdubanevich@stollberne.com -- Stoll Stoll Berne Lokting & Shlachter P.C. & Steve D. Larson -- slarson@stollberne.com -- Stoll Stoll Berne Lokting & Shlachter P.C. PROGRESSIVE SELECT: Clearview Suit Moved to M.D. Florida -------------------------------------------------------- The case captioned as Clearview Imaging, LLC d/b/a Clearview Open MRI, as assignee, individually, and on behalf of all similarly situated, the Plaintiff, vs. Progressive Select Insurance Company, the Defendant, Case No. 19-CA-003886 (Filed April 12, 2019), was removed from the Circuit Court of the Thirteenth Judicial Circuit, to the U.S. District Court for the Middle District of Florida (Tampa) on Aug. 1, 2019. The Middle District of Florida Court Clerk assigned Case No. 8:19-cv-01881 to the proceeding. The suit alleges insurance related violation. Progressive Select Insurance Company operates as an insurance company. The Company offers auto, trailers, motorcycles, boats, renters, condos, flood, life, and health insurance services. Progressive Select Insurance serves customers in the United States.[BN] The Plaintiff appears pro se. Attorneys for Progressive Select Insurance Company are: Jason L. Margolin, Esq. AKERMAN LLP 401 E Jackson St Ste 1700 Tampa, FL 33602-5250 Telephone: (813) 209-5009 Facsimile: (813) 223-2837 E-mail: jason.margolin@akerman.com QUICK CHANGE: Tindol Seeks Overtime Wages for Technicians --------------------------------------------------------- JAYSEN TINDOL, individually and on behalf of all others similarly situated, the Plaintiff, vs. QUICK CHANGE OIL & LUBE, INC., the Defendant, Case No. 9:19-cv-00128-RC-KFG (E.D. Tex., July 31, 2019), alleges that Defendant failed to pay overtime wage compensation for all hours worked over 40 in a workweek, pursuant to the Fair Labor Standards Act. The Plaintiff and all similarly situated persons who worked as technicians performed non-exempt duties and are entitled to overtime pay, liquidated damages, and attorneys' fees as allowed by the FLSA. Quick Change is a domestic for-profit corporation operating six oil change facilities in Texas and Louisiana.[BN] The Plaintiff is represented by: Scott E. Brady, Esq. BOHRER BRADY, LLC 8712 Jefferson Highway, Suite B Baton Rouge, LA 70809 Telephone: (225) 925-5297 Facsimile: (225) 231-7000 E-mail: scott@bohrerbrady.com RESEARCH AMERICA: Byer Files Damasco Bid for Class Certification ---------------------------------------------------------------- In the class action lawsuit styled as BYER CLINIC OF CHIROPRACTIC, LTD., an Illinois corporation, individually and as the representative of a class of similarly-situated persons, the Plaintiff, vs. RESEARCH AMERICA, INC., the Defendant, Case No. 1:19-cv-05080 (N.D. Ill.), the Plaintiff asks the Court for an order: 1. granting Plaintiff's "Damasco" motion for class certification of: "all individuals in the United States who, within the four years prior to the filing of the instant Complaint, received a non-emergency, unauthorized text message to their cellular telephones from Defendant, Research America, Inc., through the use of an automatic dialing system and who did not provide prior express consent and/or prior express written consent to receive such text messages"; 2. appointing the Plaintiff as the class representative; and 3. appoint Plaintiff's attorneys as class counsel. The Defendant sent Plaintiff and others unauthorized text messages. The Plaintiff anticipates that the proposed class definition will change after discovery defines the precise contours of the class and the text messages that were sent. The Plaintiff requests leave to submit a brief and other evidence in support of this motion after discovery about the class elements has been completed.[CC] The Plaintiff is represented by: Ryan M. Kelly, Esq. Ross M. Good, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: 847/368-1500 Facsimile: 847/368-1501 E-mail: rkelly@andersonwanca.com rgood@andersonwanca.com RESEARCH AMERICA: Has Made Unsolicited Calls, Byer Clinic Says -------------------------------------------------------------- BYER CLINIC OF CHIROPRACTIC, LTD., individually and on behalf of all others similarly situated, Plaintiff v. RESEARCH AMERICA, INC., Defendant, Case No. 1:19-cv-05080 (N.D. Ill., July 29, 2019) seeks to stop the Defendant's practice of making unsolicited calls. The case is assigned to Judge Rebecca R. Pallmeyer. Research America Inc provides marketing research services. The Company offers awareness and image studies, market feasibility and competitive intelligence, product testing and pricing research, market segmentation, and qualitative and quantitative surveys and analysis. Research America operates in the United States. [BN] The Plaintiff is represented by: Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: rkelly@andersonwanca.com RUE21 INC: Removes Avila Suit to Eastern District of California --------------------------------------------------------------- The Defendants in the case of MARIA AVILA, individually and on behalf of all others similarly situated, Plaintiff v. RUE21, INC.; and DOES 1 through 100, inclusive, Defendants, filed a notice to remove the lawsuit from the Superior Court of the State of California, County of Tulare (Case No. VCU277300) to the U.S. District Court for the Eastern District of California on July 30, 2019. The clerk of court for the Eastern District of California assigned Case No. 1:19-cv-01040-LJO-SKO. The case is assigned to Judge Lawrence J. O'Neill and referred to Magistrate Sheila K. Oberto. Rue21, Inc. retails clothing products. The Company offers dresses, tops, jeans, jewelry, and other related products. rue21 serves customers in the United States. [BN] The Plaintiff is represented by: Karin M. Cogbill, Esq. Angela E. Meakin, Esq. LITTLER MENDELSON, P.C. 50 W. San Fernando, 7th Floor San Jose, CA 95113-2303 Telephone: (408) 998-4150 Facsimile: (408) 288-5686 SAFECO INSURANCE: Signor Suit Moved to S.D. Florida --------------------------------------------------- The case, Gina Signor, individually and on behalf of all those similarly situated, the Plaintiff, vs. Safeco Insurance Company of Illinois, the Defendant, Case No. CACE-19-013419, was removed from the 17th Judicial Circuit in and for Broward County, Florida, to the U.S. District Court for the Southern District of Florida (Ft Lauderdale) on Aug. 1, 2019. The Southern District of Florida Court Clerk assigned Case No. 0:19-cv-61937-WPD to the proceeding. The suit alleges insurance related violation. The case is assigned to the Hon. Judge William P. Dimitrouleas. Safeco offers car insurance, home insurance and other personal insurance through independent insurance agents.[BN] Attorneys for the Plaintiff are: Alec Huff Schultz, Esq. LEON COSGROVE LLC 255 Alhambra Circle, Suite 800 Coral Gables, FL 33134 Telephone: (305) 740-1986 Facsimile: (305) 437-8158 E-mail: aschultz@leoncosgrove.com - and - Casim Adam Neff, Esq. NEFF INSURANCE LAW, PLLC 4051 27th Ave North Saint Petersburg, FL 33713 Telephone: (727) 342-0617 - and - Craig Evan Rothburd, Esq. CRAIG E. ROTHBURD, P.A. 320 W. Kennedy Blvd., Suite 700 Tampa, FL 33606 Telephone: (813) 251-8800 Facsimile: 251-5042 E-mail: craig@rothburdpa.com - and - Edward Herbert Zebersky, Esq. Mark S. Fistos, Esq. ZEBERSKY PAYNE, LLP 110 S.E. 6th Street, Suite 2150 Fort Lauderdale, FL 33301 Telephone: (954) 989-6333 Facsimile: (954) 989-7781 E-mailL ezebersky@zpllp.com mfistos@zpllp.com - and - Scott Jeeves, Esq. JEEVES LAW GROUP 954 1st Avenue North Saint Petersburg, FL 33705 Telephone: (727) 894-2929 Facsimile: (727) 822-1499 E-mail: sjeeves@jeeveslawgroup.com - and - Todd Bruce Allen, Esq. 8950 Fontana Del Sol Way Naples, FL 34109 Telephone: (239) 331-5100 E-mail: Todd@flcommunitylaw.com Attorneys for Safeco Insurance Company Of Illinois are: Steven Myer Appelbaum, Esq. ARNSTEIN & LEHR LLP 200 South Biscayne Blvd., Suite 3600 Miami, FL 33131 Telephone: (305) 428-4500 Facsimile: (305) 397-2155 Steven.Appelbaum@saul.com SHEARD-LOMAN: Miranda Sues Over Unpaid Overtime Wages ----------------------------------------------------- ANTONIO MIRANDA, on behalf of himself, and all other plaintiffs similarly situated, known and unknown, Plaintiff, v. SHEARD-LOMAN TRANSPORT, LLC, AN ILLINOIS LIMITED LIABILITY COMPANY, DEBRA BROWN, INDIVIDUALLY AND TAURIA DILWORTH, INDIVIDUALLY Defendants, Case No. 1:19-cv-05206 (N.D. Ill., Aug. 1, 2019) is an action brought under the Fair Labor Standards Act, the Illinois Minimum Wage Law, the Cook County Minimum Wage Ordinance of the Municipal Code of Cook County and the Chicago Minimum Wage Ordinance. Plaintiff, and members of the Plaintiff Class, on a regular basis worked in excess of 40 hours in a workweek without pay at a rate of time and one-half for such hours pursuant to the requirements of the federal and state statutes herein relied upon, says the complaint. Plaintiff was employed by Defendants as a delivery driver from approximately October 2018 to May 2019, performing non-exempt delivery driving services. SHEARD-LOMAN TRANSPORT, LLC, is an Illinois corporation that owns and operates a delivery service business located at 2801 S. Western Ave. Chicago, Illinois.[BN] The Plaintiffs are represented by: John William Billhorn, Esq. BILLHORN LAW FIRM 53 West Jackson Blvd., Suite 401 Chicago, IL 60604 Phone: (312) 853-1450 SIRIUS XM: Sued Over 'Bait and Switch' Advertising Methods ---------------------------------------------------------- Ashley King, writing for Digital Music News, reports that a state court complaint filed by Jeffrey Parrella claims that Sirius XM offered three years of service for $99. The mailing may have been too good to be true. A customer service representative who took Parella's call said she could only provide one year for $60. That was the wrong answer: the freshly-filed lawsuit says Sirius XM violated state laws against consumer fraud. In the complaint, Parrella alleges he made multiple unsuccessful attempts to redeem the offer received in the mail. He couldn't sign up on Sirius XM's website at the advertised rate, nor could he seal the deal on the phone. Parrella received the offer in the mail in December of 2017 after deactivating his account. The proposal included a letter signed by Sirius CEO James E. Meyer. The ad in question touted Sirius' "biggest, best offer EVER" with the three year, $99 bargain. The wording on the Sirius ad described the offer as 82% off the standard rate of $15.99/month. Parrella says the customer service representative he contacted told him the system would not allow the offer. The only offer available to him was the one-year, $60 deal. Parrella told the customer service rep he would only accept the offer of the advertised terms. However, Sirius XM charged his credit card for the one-year offer he was quoted. Representatives for both parties have been contacted, but neither has returned a request for comment. Parrella is represented by Bharati O. Sharma, Esq. -- bsharma@wolflawfirm.net -- of the Wolf Law Firm. Michael James Gesualdo, Esq. -- mgesualdo@rwmlegal.com -- of Robinson Miller represents Sirius XM. [GN] STACKIN INC: Maddux Sues Over Unsolicited Text Messages ------------------------------------------------------- DAVID MADDUX, individually and on behalf of all others similarly situated, Plaintiff, v. STACKIN, INC., a Delaware corporation, and STACKIN FINANCIAL, LLC, a Delaware limited liability company, Defendants, Case No. 2:19-cv-06716 (C.D. Cal., Aug. 2, 2019) is a Class Action Complaint and Demand for Jury Trial against Defendant. The Plaintiff seeks to stop the Defendants' violation of the Telephone Consumer Protection Act by sending unsolicited, autodialed text messages to consumers, including to consumers who have registered their phone numbers on the national Do Not Call registry ("DNC"), and to otherwise obtain injunctive and monetary relief for all persons injured by Defendants' conduct. The Defendants sent numerous unsolicited autodialed text messages to the Plaintiff without obtaining his prior written express consent and despite Plaintiff having his phone number registered on the Do Not Call registry specifically to avoid unsolicited telemarketing, asserts the complaint. In response to these text messages, Plaintiff files this class action lawsuit seeking injunctive relief, requiring the Defendants to cease sending unsolicited, autodialed text messages to consumers' cellular telephone numbers, and to other phone numbers registered on the DNC, as well as an award of statutory damages to the members of the Classes. Plaintiff Maddux is a Council Bluffs, Iowa resident. Stackin, Inc. is a technology company that markets financial products and services to millennials and provides products and services such as a Stackin bank account.[BN] The Plaintiff is represented by: Rachel E. Kaufman, Esq. KAUFMAN P.A. 400 NW 26th Street Miami, FL 33127 Phone: (305) 469-5881 Email: rachel@kaufmanpa.com STATE FARM: Dismissal of L. Daniels Suit Reversed ------------------------------------------------- In the case, LAZURI DANIELS, individually, and on behalf of all those similarly situated, Petitioner, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent, Case No. 96185-9 (Wash.), Judge Charles W. Johnson of the Supreme Court of Washington reversed the trial court's dismissal of Daniels' claims under CR 12(b)(6). The case concerns whether a first-party insurer, upon obtaining a partial recovery in a subrogation action, is required to reimburse its fault-free insureds for the full amount of their deductibles before any portion of the subrogation proceeds can be allocated to the insurer. Daniels brought claims and sought class action status in a lawsuit against State Farm arguing that by failing to fully reimburse its insureds for their deductibles after recovering in a subrogation action, State Farm violates both Washington law and its own insurance policy. Daniels asserted claims for breach of contract, bad faith, and conversion. State Farm filed a motion to dismiss under CR 12(b)(6), relying on Averill v. Farmers Insurance Co. of Washington, where the Court of Appeals held that the made whole doctrine does not extend to this type of subrogation action, as well as WAC 284-30-393, which requires subrogated insurers to return deductibles "less applicable comparable fault." Finally, State Farm argued that nothing in its policy language required it to return the full amount of deductibles before allocating to itself the proceeds of a direct subrogation action. The trial court granted State Farm's motion to dismiss, and the Court of Appeals affirmed. Daniels petitioned the Court, and the Court granted review. The issues before the Court are: (i) whether Washington's made whole doctrine requires that insurers allocate subrogation proceeds to the full reimbursement of its insureds' deductibles prior to allocating any portion of the proceeds to itself; (ii) whether, in the absence of an acknowledgement that an insured bears comparative fault, WAC 284-30-393 requires an insurer to recover and return its insured's full deductible; and (iii) whether State Farm's policy language required that it allocate subrogation proceeds to the full reimbursement of its insureds' deductibles prior to allocating any portion of the proceeds to itself. The analysis in Averill is in conflict with the policy underlying the made whole doctrine, and to the extent the Court of Appeals held the made whole doctrine is confined to reimbursement claims, Judge Johnson overrules it. He holds that under Thiringer v. American Motors Insurance Co. and Sherry v. Financial Indemnity Co., no distinction exists based on who brings a claim against a responsible third party. Since the claim seeks recovery of the insured's losses, that the insurer brings the subrogation claim makes no difference in the application of the made whole doctrine -- the principles of the doctrine apply equally and the result is the same. Whether in the context of a reimbursement request, offset, or direct subrogation action, a fault-free insured must be made whole for their entire loss before an insurer may offset or recover its own payments. Stated another way, the proceeds of any recovery from a third-party tortfeasor, whether in a subrogation action or otherwise, must be allocated in such a way as to first make the insured whole. Daniels's complaint asserted that State Farm fails to abide by this requirement, which states a valid claim supported by the common law made whole doctrine and survives a CR 12(b)(6) motion to dismiss. The Judge interpretes the regulation in the manner intended by the agency, and in doing so, it is evident that Daniels raised a valid claim regarding violation of the WAC. Accepting the facts alleged in her complaint as true, there appears to have been no assertion that Daniels herself bore any fault for the wreck, yet State Farm withheld 30 percent of her deductible. Daniels also alleges that this conduct is consistent with State Farm's dealings with its other insureds. Such assertions support the claim that State Farm violates WAC 284-30-393 with regard to the asserted class. Finally, the Judge finds that he is presented with two different interpretations of State Farm's policy language; however, the presence of two possible interpretations does not make the language ambiguous unless both interpretations are reasonable. There can be only one reasonable interpretation, which is one that aligns with the common law made whole doctrine. The interpretation State Farm urges, and which was adopted by the courts below, does not align with that doctrine; therefore we reject it. The Judge accepts Daniels' assertion that the second section of the policy language prohibits State Farm from allocating subrogation proceeds to itself until its insured is fully compensated for their loss, which includes full reimbursement for the insured's deductible. This interpretation is consistent, as it must be, with the made whole doctrine and the basic principles of subrogation, which emphasize the loss suffered by the insured. Under this interpretation, Daniels has asserted a valid claim that State Farm violates the policy. Judge Johnson concludes that Daniels' complaint asserted valid claims for relief under the common law, under Washington insurance regulations, and under State Farm's own policy language. As such, dismissal under CR 12(b)(6) was improper. He reversed and remanded to the trial court for further proceedings. A full-text copy of the Court's July 3, 2019 Order is available at https://is.gd/0fRm3V from Leagle.com. Matthew James Ide , Ide Law Office, 7900 Se. 28th St. Ste. 500, Mercer Island, WA, 98040-6004, Counsel for Petitioner(s). Joseph D. Hampton -- jhampton@bpmlaw.com -- Betts, Patterson & Mines, P.S., 701 Pike St. Ste. 1400, Seattle, WA, 98101-3927, Frank Falzetta, Shephard Mullin Richter & Hampton LLC, 333 South Hope Street 43rd Floor, Los Angeles, CA, 90071, Jennifer Hoffman, Shephard Mullin Richter & Hampton LLC, 333 South Hope Street 43rd Floor, Los Angeles, CA, 90071, Counsel for Respondent(s). Marta Uballe Deleon, Office of the Attorney General, 1125 Washington St. Se., Po Box 40100, Olympia, WA, 98504-0100, Amicus Curiae on behalf of Washington State Insurance Commissioner. Linda Blohm Clapham -- clapham@carneylaw.com -- Carney Badley Spellman, P.S., 701 5th Ave. Ste. 3600, Seattle, WA, 98104-7010, Michael Barr King, Carney Badley Spellman PS, 701 5th Ave. Ste. 3600, Seattle, WA, 98104-7010, Amicus Curiae on behalf of American Property Casualty Ins. Association. Linda Blohm Clapham, Carney Badley Spellman, P.S., 701 5th Ave. Ste. 3600, Seattle, WA, 98104-7010, Michael Barr King , Carney Badley Spellman PS, 701 5th Ave. Ste. 3600, Seattle, WA, 98104-7010, Amicus Curiae on behalf of National Association of Mutual Insurance Companies. Valerie Davis Mcomie, Attorney at Law, 4549 Nw Aspen St., Camas, WA, 98607-8302, Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Ave. Ste. 1300, Spokane, WA, 99201-0305, Amicus Curiae on behalf of Washington State Association for Justice Foundation. TATE & KIRLIN: Key Files Class Suit Under FDPCA ----------------------------------------------- A class action lawsuit has been filed against Tate & Kirlin Associates Inc. The case is styled as Renada S Key, individually and on behalf of all others similarly situated, Plaintiff v. Tate & Kirlin Associates Inc, LVNV Funding LLC and John Does 1-25, Defendants, Case No. 8:19-cv-02151-BHH (D.S.C., Aug. 1, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Act. Tate & Kirlin Associates Inc. is a debt collection agency in Philadelphia, Pennsylvania.[BN] The Plaintiff is represented by: Kenneth Edward Norsworthy , Jr, Esq. Norsworthy Law Ltd Co 505 Pettigru Street Greenville, SC 29601 Tel: (864) 804-0581 Fax: (864) 756-1153 Email: kenorsworthy@me.com THRIFTY PAYLESS: Cal. Reverses Certification Denial in D. Noel Suit ------------------------------------------------------------------- The Supreme Court of California issued Opinion reversing the Opinion of the Court of Appeals affirming the District Court's judgment denying Plaintiffs' Motion for Class Certification in the case captioned DIANA NIEVES NOEL, Plaintiff and Appellant, v. THRIFTY PAYLESS, INC., Defendant and Respondent. No. S246490. (Cal.). This case is a putative class action brought on behalf of retail purchasers of an inflatable outdoor pool sold in packaging that allegedly misled buyers about the pool's size. Plaintiff James Noel1 filed a verified complaint in Marin County Superior Court, alleging claims under the unfair competition law (UCL), the false advertising law (FAL) and the Consumers Legal Remedies Act (CLRA). Noel moved to certify a class defined as all persons who purchased the Ready Set Pool at a Rite Aid store located in California within the four years preceding the date of the filing of this action. The trial court denied the motion for class certification. The court's order explained that while the court might reasonably infer that the class, as defined by plaintiff, could be ascertained based on common business practices and record keeping, plaintiff has presented no evidence on this subject. Absent some evidence as to what method or methods will be utilized to identify the class members, what records are available, either from defendant, the manufacturer, or other entities such as banks or credit institutions), how those records would be obtained, what those records will show, and how burdensome their production would be, the court is without sufficient evidence to determine whether the proposed class is ascertainable. Accordingly, the motion to certify must be denied. After Noel appealed the denial of certification to an entire class is an appealable order, the Court of Appeal found no abuse of discretion in the denial of class certification. Addressing the superior court's determination that Noel had not shown an ascertainable class, the reviewing court diagnosed the underlying problem with the class certification motion as class counsel's premature filing of the motion without first conducting sufficient discovery to meet its burden of demonstrating there are means of identifying members of the putative class so that they might be notified of the pendency of the litigation. The Court of Appeal emphasized that Noel had submitted nothing offering a glimmer of insight into who purchased the pools or how one might find that out. He neither described nor produced Rite Aid's records nor did he indicate how much information those records might reveal. Unless Noel could propose some realistic way of associating names and contact information with the 20,000-plus transactions identified by interrogatory response, there remained a serious due process question in certifying a class action. In determining whether the trial court abused its discretion, the Court begins by surveying the relevant general principles applicable to class certification. The Court then turn to case law that has considered what it means for a class to be ascertainable. Drawing from this review, the Court concludes that the functions properly assigned to the ascertainability requirement are best served by regarding a class as ascertainable when it is defined in terms of objective characteristics and common transactional facts that make the ultimate identification of class members possible when that identification becomes necessary. This standard was satisfied here because the class definition provided a basis for class members to self-identify. The courts below erred in importing an additional evidentiary burden into the ascertainability requirement. General Principles In reviewing a class certification order, the Court's inquiry is narrowly circumscribed. The decision to certify a class rests squarely within the discretion of the trial court, and the Court affords that decision great deference on appeal, reversing only for a manifest abuse of discretion: Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification. A certification order generally will not be disturbed unless (1) it is unsupported by substantial evidence (2) it rests on improper criteria or (3) it rests on erroneous legal assumptions. Under this standard, an order based upon improper criteria or incorrect assumptions calls for reversal even though there may be substantial evidence to support the court's order. Here, plaintiff sought certification of a class pursuant to section 382 of the Code of Civil Procedure, which provides a general authorization for class actions, and section 1781 of the Civil Code, the provisions of which govern class suits brought under the CLRA and inform class action practice more generally. Section 382 of the Code of Civil Procedure authorizes a class action when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court. The views of the Courts of Appeal regarding ascertainability Following the Court's decision in Daar, supra, 67 Cal.2d 695, the Courts of Appeal have developed two basic views of the ascertainability requirement. One view of ascertainability concentrates on the proposed class definition itself. This view was applied in Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816 (Bartold), superseded by statute on another point as stated in Markowitz v. Fidelity Nat. Title Co. (2006) 142 Cal.App.4th 508, 524. The Bartold court explained that a class is ascertainable if it identifies a group of unnamed plaintiffs by describing a set of common characteristics sufficient to allow a member of that group to identify himself or herself as having a right to recover based on the description. This basic view of ascertainability has been reiterated by numerous other Courts of Appeal, including the courts in Estrada, supra, 154 Cal.App.4th at page 14 and Aguirre, supra, 234 Cal.App.4th at pages 1299 to 1300. A similar formulation regards a class as ascertainable when it is defined in terms of objective characteristics and common transactional facts that make the ultimate identification of class members possible when that identification becomes necessary. The second basic view of ascertainability entails a more exacting inquiry. One such articulation regards the ascertainability requirement as calling for an examination into (1) the class definition (2) the size of the class and (3) the means of identifying class members. Consistent with this view, it has been said that class members are ascertainable' where they may be readily identified without unreasonable expense or time by reference to official records. The differences between these two basic approaches to ascertainability can be somewhat blurred in practice. The Court of Appeal attempted to synthesize these views. But as this case illustrates, a court's choice between the two views can be critical. A construction of ascertainability that assigns the plaintiff in a putative class action an affirmative responsibility to show the existence of records or some other mechanism or channel through which individual class members can be identified for the purpose of providing them with personal notice of the proceeding may function to defeat class certification in a variety of situations. A plaintiff may not anticipate the need to adduce such proof at the time class certification is sought, meaning that no precertification discovery will have occurred on this point. This kind of evidentiary requirement also can prevent certification when a plaintiff's discovery efforts, albeit substantial, produce inadequate evidence from the perspective of the court. An additional burden emerges when the plaintiff must demonstrate that individual members of the proposed class can be readily identified without unreasonable expense or time. With such a requirement, class certification may be denied on ascertainability grounds due to expected complexities in the provision of notice, or in distinguishing class members from nonmembers without close consideration necessarily being given to whether these difficulties are actual, as opposed to merely hypothetical, or whether they are so intransigent and pervasive that they would make a class proceeding unmanageable, or undesirable in light of the plausible alternatives. The views of the federal courts regarding ascertainability Federal courts have wrestled with ascertainability issues in cases where plaintiffs have sought certification of a class under rule 23 of the Federal Rules of Civil Procedure (28 U.S.C.). Although this rule does not expressly demand an ascertainable class, most courts tasked with applying it have regarded ascertainability as an implicit`threshold requirement for certification of a class under Rule 23(b)(3). In this context, competing views regarding ascertainability have emerged within the federal system, just as they have within the courts of this state. A stringent view of ascertainability is most closely associated with decisions produced by the United States Court of Appeals for the Third Circuit. Under this approach, a plaintiff seeking class certification under Rule 23(b)(3) must show not only that the class has been defined with reference to objective criteria, but also that there is a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition. Courts adopting this conception of ascertainability have refused to certify (or upheld refusals to certify consumer classes in situations such as the one presently before this court in which it is unlikely, or at least unproven, that individual purchasers of the commodity at the heart of the dispute would have retained their receipts or other proof of purchase, the defendant did not maintain a specific list of purchasers, and the putative class representative offered no proof when seeking certification "that a single purchaser of [the product] could be identified using records of customer membership cards or records of online sales. Other courts have pushed back on this stringent approach to ascertainability. The United States Court of Appeals for the Seventh Circuit is among the federal courts that assign a narrower function to the ascertainability requirement. Its decision in Mullins v. Direct Digital, LLC (7th Cir. 2015) 795 F.3d 654 (Mullins) offers a thorough, and in the Court's view illuminating, assessment of how ascertainability should be understood in connection with class certification. Because the analysis in Mullins is particularly helpful in resolving the issue before us, the Court discusses its facts and reasoning at some length below. The plaintiff in Mullins, supra, 795 F.3d 654, secured the certification of a consumer class under Rule 23(b)(3) in a matter alleging that the defendant made fraudulent representations in marketing a dietary joint supplement. Drawing from the Third Circuit's jurisprudence, the defendant in Mullins argued on appeal of the certification order that the class was not ascertainable because the plaintiff had failed to show a reliable and administratively feasible way to determine whether a particular person is a member of the class. The appellate court in Mullins, supra, 795 F.3d 654, rejected this view of ascertainability and affirmed the class certification order entered by the district court. In doing so, the federal court of appeals distinguished between a relatively uncontroversial weak version of ascertainability and the more demanding ascertainability standard adopted by the Third Circuit. The weak construction of ascertainability, the court explained, derives from experience that has led courts to require that classes be defined clearly and based on objective criteria Even in this weak form, Mullins elaborated, the requirement of a clearly defined class based on objective criteria is far from toothless, for it serves to weed out classes that are defined too vaguely classes that are defined by subjective criteria, such as by a person's state of mind and classes that are defined in terms of success on the merit so-called fail-safe classes all of which raise due process or other fairness concerns. The Mullins court regarded this approach to ascertainability as striking an appropriate balance, whereas the Third Circuit's more exacting conception of this requirement did not. In the view of the Mullins court, the more demanding specification does not further any interest of Rule 23 that is not already adequately protected by the Rule's explicit requirements. On the other side of the balance, the costs of imposing the requirement are substantial. The stringent version of ascertainability effectively bars low-value consumer class actions, at least where plaintiffs do not have documentary proof of purchases, and sometimes even when they do. An ascertainable class is one defined in objective terms that make the eventual identification of class members possible Although Mullins, supra, 795 F.3d 654 applied only federal law, much of its analysis rings true here as well. The Court agree with Mullins' assignment of a limited but important function to the ascertainability requirement. The Court concludes that the objectives of this requirement are best achieved by regarding a class as ascertainable when it is defined in terms of objective characteristics and common transactional facts that make the ultimate identification of class members possible when that identification becomes necessary. The Court regards this standard as including class definitions that are sufficient to allow a member of the class to identify himself or herself as having a right to recover based on the class description. This understanding of the threshold requirement of ascertainability for class certification protects the due process interests of all parties and absent class members without unduly impairing the efficacy of the class action mechanism. But a class proceeding must be maintained in a manner consistent with due process. A class definition framed in objective terms that make the identification of class members possible promotes due process in at least two ways. Such phrasing puts members of the class on notice that their rights may be adjudicated in the proceeding, so they must decide whether to intervene, opt out, or do nothing and live with the consequences. The Court of Appeal saw a slightly different set of due process considerations as favoring a more stringent approach to ascertainability. It expressed concern that, without an evidentiary showing by plaintiff, absent class members would never receive notice of the action and would therefore lack the opportunity to opt out. To this effect, the Court of Appeal quoted Sotelo, supra, 207 Cal.App.4th at page 649: The theoretical ability to self-identify as a member of the class is useless if one never receives notice of the action. The Courts appreciate the court's interest in protecting the due process rights of absent class members. Yet, as the Court explains below, this concern does not justify the evidentiary burden that the Court of Appeal attached to the ascertainability requirement or, for that matter, any blanket requirement that class members must be identifiable by reference to official records. The Court agrees, of course, that the provision of notice to absent class members carries due process connotations. But due process does not dictate that certification of a putative plaintiff class invariably must depend on all absent class members being sent much less receiving individual notice of the action. Instead, the law adopts a more nuanced and pragmatic approach, consistent with the general principle that when an important judicial mechanism for advancing the social good is involved, a construction of the Due Process Clause which would place impossible or impractical obstacles in the way could not be justified. To summarize, due process does not invariably require that personal notice be directed to all members of a class in order for a class action to proceed, or for that matter that an individual member of a certified class must receive notice to be bound by a judgment. It follows that a construction of the ascertainability requirement that presumes such notice is necessary to satisfy due process, and demands that the plaintiff show how it can be accomplished, threatens to demand too much, too soon. It is likewise mistaken to take a categorical view that the relevant due process interests can be satisfied only when official records supply the means of identifying class members, and for a similar reason: due process is not that inflexible. Reading into the ascertainability element an additional requirement that the identification of class members must occur without unreasonable expense or time runs a similar risk of preempting a more careful analysis later. The Court's jurisprudence addressing class certification has stressed the importance of a careful weighing of both the benefits and the burdens that may be associated with a proposed class action. A conception of ascertainability as concerned with whether class members can be identified without an unreasonable commitment of expense or time is at cross purposes with this direction. As the court in Mullinssupra, 795 F.3d at pages 663 to 664 explained in rejecting a similar expansion of the ascertainability requirement, such an approach trains the court's attention, at a threshold juncture, exclusively toward the side of the ledger where costs and challenges are compiled. This focus means that full attention will not necessarily be given to countervailing considerations such as whether these difficulties, although present, might nevertheless be effectively managed through application of the various tools and resources courts have at their disposal for effective supervision of a class proceeding, and whether, notwithstanding possible notice issues, an appropriately supervised class action nevertheless can be expected to deliver benefits that, from a comparative perspective, would make it preferable to alternative courses of action. The Court's view of the ascertainability requirement does not prohibit a court asked to certify a class from considering the separate question of notice to absent class members. Arguments and evidence relating to the provision of notice to the class conceivably could counsel against class certification insofar as they may show that another requirement for a proper class proceeding, aside from ascertainability, has not been met, e.g., that a class action would be unmanageable, even after due consideration is given to how manageability concerns could be resolved; or that a class proceeding would not be superior to the alternatives. But, at the risk of repetition, the Court concludes that these issues, where they exist, are appropriately addressed outside of and separately from the ascertainability requirement. The trial court abused its discretion when it found no ascertainable class existed It follows from the analysis above that the trial court erred when it determined that the class proposed by plaintiff is not ascertainable. It is. The phrasing, All persons who purchased the Ready Set Pool at a Rite Aid store located in California within the four years preceding the date of the filing of this action is neither vague nor subjective. A member of the class could appreciate from this definition whether he or she is included within it, and thus be in a position to take appropriate steps to protect his or her interests. And the definition makes the res judicata consequences of a judgment clear, creating no ambiguity as to who will and will not be bound by the outcome. To the extent that the trial court had concerns regarding the state of the record as it pertained to matters such as the provision of notice to class members, or how burdensome it would be to identify class members, those issues should not have been resolved in the context of ascertainability. And regardless of whether plaintiff's failure to supply evidence associated with the identification of class members might have supported a refusal to certify a class on some other ground it manifestly did not justify a failure to find an ascertainable class. The Court's review ends there. The trial court denied the motion for class certification in its entirety on ascertainability grounds. That court also denied certification of the proposed CLRA class on the basis that common issues did not predominate. Because the Court do not address the latter aspect of the trial court's ruling here, overturning its ascertainability determination would not, by itself, make a CLRA class viable. The trial court also offered a third justification for denying class certification that was ambiguous in its scope. It is unclear whether the trial court had only the proposed CLRA class in mind when it determined that a class action would not be superior to the alternatives, or whether this conclusion applied to the entirety of the action. It also cannot be discerned from this vantage point whether the court's erroneous view of ascertainability informed its analysis on this issue. Because of these uncertainties, the Court reverses the judgment below and remands the case to the Court of Appeal with directions to remand the matter to the superior court for further proceedings consistent with the Court's decision. A full-text copy of the state Supreme Court's July 29, 2019 Opinion and Order is available at https://tinyurl.com/y6gxpypg from Leagle.com. Emergent Legal, Emergent, Christopher Wimmer, 25 Taylor Street, San Francisco, CA, 94102, Peter Roldan -- peter@emergent.law -- Public Justice, Leslie Bruecknerand Karla Gilbride for Plaintiff and Appellant. Chavez & Gertler, Mark A. Chavez -- mark@chavezgertler.com -- Public Citizen Ligation Group and Allison M. Zieve 3501 Sansom Street, Philadelphia, PA 19104, for Public Citizen as Amicus Curiae on behalf of Plaintiff and Appellant. Rock Law, Matt J. Malone, 11 1/2 E 2nd St Ashland, OH 44805, Nelson & Fraenkel, Gretchen M. Nelson, 750 Third Avenue, 32nd Floor, New York, NY 10017, Arbogast Law and David M. Arbogast -- david@arbogastlaw.com -- for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant. Lieff Cabraser Heimann & Bernstein, Robert J. Nelson -- rnelson@lchb.com -- Roger N. Heller -- rheller@lchb.com -- and Melisa Gardner -- mgardner@lchb.com -- for National Consumer Law Center and National Association of Consumer Advocates as Amici Curiae on behalf of Plaintiff and Appellant. Jocelyn D. Larkin and Daniel Nesbit, 125 University Avenue, Suite 102, Berkeley, CA 97410, for Impact Fund, California Employment Lawyers Association, Centro Legal de la Raza, Legal Aid at Work and Worksafe as Amici Curiae on behalf of Plaintiff and Appellant. Kelly, Hockel & Klein, Klein, Hockel, Iezza & Patel, Michael D. Early and Mark P. Iezza, 455 Market Street, Suite 1480, San Francisco, CA 94105, for Defendant and Respondent. Utrecht & Lenvin and Paul F. Utrecht -- putrecht@ullawfirm.com -- for Washington Legal Foundation and California Retailers Association as Amici Curiae on behalf of Defendant and Respondent. UCLA: Fails to Protect Women from Heaps' Sexual Misconducts ----------------------------------------------------------- A.B. and C.D., individually and on behalf of all others similarly situated, Plaintiffs v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA; JAMES MASON HEAPS, M.D.; and JOHN DOES 1-20, Defendants, Case No. 2:19-cv-06586 (C.D. Cal., July 30, 2019) is a class action on behalf of a class of women who were examined by James Heaps, M.D. at UCLA facilities after January 1, 2014, alleging that UCLA failed to protect the Plaintiffs and the class against Dr. Heaps sexual misconducts. According to the complaint, Dr. James Heaps, an obstetrician-gynecologist (OB-GYN) specializing in oncology, saw patients at UCLA medical facilities between 1983 and 2018. He was arrested in June 2019 and indicted on two counts of sexual battery and one count of sexual exploitation by a physician. The Plaintiffs are two of the many women who visited Dr. Heaps for sensitive women's health treatment at UCLA. Dr. Heaps caused lasting damage to them and his other patients by sexually assaulting them and making lewd statements while conducting medical examinations. UCLA breached its duties to the Plaintiffs and other women by keeping Dr. Heaps on staff despite receiving several complaints about his behavior. UCLA did not terminate or suspend Dr. Heaps during or after its investigation of those complaints, or after the Medical Board of California opened its own investigation into Dr. Heaps's conduct in 2014. UCLA nurses and medical assistants also attended Dr. Heaps's examinations and observed his predatory behavior, but did nothing to stop it. More than 50 women have now come forward to report inappropriate sexual contact by Heaps, and UCLA has paid over $3 million in individual settlements relating to Dr. Heaps's misconduct. In June 2018, without disclosing the results of its investigation -- which found Dr. Heaps violated university policy on sexual violence -- UCLA allowed Heaps to quietly resign. Only after Dr. Heaps's arrest did UCLA issue a statement that it was "deeply sorry" that its women's health doctor violated "the trust of his patients." The Regents of the University of California is the governing board of the University of California. [BN] The Plaintiffs are represented by: Daniel C. Girard, Esq. Elizabeth A. Kramer, Esq. GIRARD SHARP LLP 601 California Street, Suite 1400 San Francisco, CA 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 E-mail: dgirard@girardsharp.com ekramer@girardsharp.com - and - Eric H. Gibbs, Esq. Amy M. Zeman, Esq. GIBBS LAW GROUP LLP 505 14th Street, Suite 1110 Oakland, CA 94612 Telephone: (510) 350-9700 Facsimile: (510) 350-9701 E-mail: ehg@classlawgroup.com amz@classlawgroup.com VECTOR STRUCTURAL: Osorio Sues Over Unpaid Minimum, Overtime Wages ------------------------------------------------------------------ Alejandro Manuel Zapata Osorio, Arturo del Razo, Braulio Rolando Cashabamba Chango, Byron Salvador Barrera Sanchez, Carlos E. Sierra Rodriguez, Edwin Fabricio Cashabamba Tubon, Jesus Sierra, Juan Sierra, Ramon Rosales Galvez, Raul Chavez Diaz, Segundo Leandro Alulema Guano, Segundo Nicolas Siguencia Encalada, and Wilder Rodriguez, individually and on behalf of others similarly situated, Plaintiffs, v. VECTOR STRUCTURAL PRESERVATION CORP. (D/B/A VECTOR STRUCTURAL PRESERVATION), NORTH STAR STRATEGY, INC. (D/B/A NORTH STAR STRATEGY), BILL HANDAKAS, VASSILIOS HANDAKAS, and SERGIO DOE, Defendants, Case No. 1:19-cv-07261 (S.D. N.Y., Aug. 2, 2019) is an action on behalf of themselves, and other similarly situated individuals, for unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938 ("FLSA"), and for violations of the N.Y. Labor Law (the "NYLL"), including applicable liquidated damages, interest, attorneys' fees and costs. Plaintiffs worked for Defendants in excess of 40 hours per week, without appropriate minimum wage and overtime compensation for the hours that they worked. Rather, Defendants failed to maintain accurate recordkeeping of the hours worked and failed to pay Plaintiffs appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium, says the complaint. Plaintiffs were employed as brick layers at the construction corporations. Defendants own, operate, or control two construction corporations, located at 75 Harbor Road, Port Washington, New York 11050 under the name "Vector Structural Preservation" and at 238 W Jericho Turnpike, Huntington Station, New York 11746 under the name "North Star Strategy".[BN] The Plaintiffs are represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Phone: (212) 317-1200 Facsimile: (212) 317-1620 WELLPATH LLC: Has Made Unsolicited Calls, Barnett Suit Alleges -------------------------------------------------------------- JILLIAN BARNETT, individually and on behalf of all others similarly situated, Plaintiff v. WELLPATH LLC, Defendant, Case No. 1:19-cv-23149 (S.D. Fla., July 30, 2019) seeks to stop the Defendants' practice of making unsolicited calls. The case is assigned to Judge Darrin P. Gayles. Wellpath LLC offers medical, dental, mental, and behavioral health services. [BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 1205 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com gberg@shamisgentile.com - and - Scott Edelsberg, Esq. Jordan D. Utanski, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd #607 Aventura, FL 33180 Telephone: (305) 975-3320 E-mail: scott@edelsberglaw.com utanski@edelsberglaw.com WELLS FARGO: Bid to Defer Ruling on Bid to Certify Class Granted ---------------------------------------------------------------- In the class action lawsuit styled as Daniel Loughran, et al., the Plaintiff, vs. Wells Fargo Bank, N.A., et al., the Defendant, Case No. 1:19-cv-04023 (N.D. Ill.), the Hon. Judge Charles P. Kocoras entered an order granting Wells Fargo's motion to defer ruling on Plaintiff's motion to certify class action. According to the docket entry made by the Clerk on July 30, 2019, Plaintiff's motion for class certification is entered and continued. Wells Fargo's motion to defer ruling on Plaintiff's motion to certify class action is granted. Wells Fargo & Companys and Wells Fargo Bank, N.A.'s motion to leave to exceed page limit is granted. Motion hearing set for August 1, 2019 is stricken.[CC] ZUORA INC: Schall Law Files Securities Class Action Lawsuit ----------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, announces the filing of a class action lawsuit against Zuora, Inc. ("Zuora" or "the Company") (ZUO) for violations of Sections 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 April 12, 2018 and May 30, 2019, inclusive (the ''Class Period''), are encouraged to contact the firm before August 13, 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. Zuora focused on implementing its RevPro product for new customers ahead of the compliance deadline for accounting standard ASC 606. The Company failed to maintain adequate resources to facilitate the integration of RevPro with its core business. The year-long focus on RevPro after its acquisition and the delay in integration materially impacted the Company's results. Because of the limited market for RevPro after the ASC 606 deadline, demand for the solution could be reasonably expected to 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 Zuora, 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 Sherin Mahdavian, Esq., Website: www.schallfirm.com Office: 310-301-3335 Cell: 424-303-1964 Email: info@schallfirm.com brian@schallfirm.com [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2019. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***