/raid1/www/Hosts/bankrupt/CAR_Public/190903.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, September 3, 2019, Vol. 21, No. 176
Headlines
2U INC: Glancy Prongay Files Securities Class Action
2U INC: Kirby McInerney Files Securities Class Action Lawsuit
ABIOMED INC: Oct. 7 Lead Plaintiff Motion Deadline Set
ACTION COLLECTION: McDaniel Seeks to Certify Class
AHMAD CHATILA: Day Appeals Ruling to Supreme Court
AKERS BIOSCIENCES: Final Hearing on Faulkner Accord Set for Nov. 8
ALLIED NEVADA: Court Enters Protective Order in Securities Suit
ALLIED NEVADA: Form of Production Agreement in Securities Suit OK'd
AMAZON.COM: Waithaka Suit Moved to Western District of Washington
AMERICAN REALTY: Oct. 28 Class Action Opt-Out Deadline Set
AMERICOLLECT, INC: Placeholder Bid for Class Certification Filed
AQUESTIVE THERAPEUTICS: Summary Judgment Motions Due Sept. 26
ARCIMOTO INC: Still Awaiting Court OK on Class Action Settlement
ASHLEY FURNITURE: Final Judgment Entered in Atchison Labor Suit
AVANOS MEDICAL: Appeal in Bahamas Surgery Case Still Pending
BELNICK LLC: Diaz Alleges Violation under Disabilities Act
BLOOM ENERGY: Discovery in Lincolnshire Police Suit Still Stayed
BOSTON, MA: Class Action Over Immigration Bond Hearings Okayed
BRE SELECT: Final Approval Hearing for Battaglia Pact Set for Nov.6
BRG SPORTS: Averts Ex-Football Players' Helmet Class Action
BUSINESS INFORMATION: White Suit Moved to E.D. Pennsylvania
CAKE RULES EVERYTHING: Olsen Files Class Suit under ADA
CANADA: Yukon 60s Scoop Suit No Longer Class Action
CAPITAL ONE: Card Holders Sue Over Data Breach
CAPITAL ONE: Faces Desoer Suit Over Data Breach
CAPSTONE TURBINE: Final Settlement Approval Hearing on Nov. 15
CARBONITE INC: Faces Securities Class Action in Massachusetts
CBS CREDIT UNION: Board Members Sued over $40MM Embezzlement
CDK GLOBAL: Still Defends AutoLoop Class Action in Illinois
CEC ENTERTAINMENT: Appeal in Apollo-Merger Suit Still Pending
CHAITMAN LLP: Court Denies Bid to Dismiss Shulman Suit
CHEFS' WAREHOUSE: Bid for Prelim Injunction in Robinson Suit Denied
CHURCH OF JESUS CHRIST: Faces Class Action Over "Scheme of Lies"
CLEVELAND, OH: Bid for Class Certification Denied as Moot
CREDIT PROS: Showe-Gaither Sues Over TCPA Violation
DESIGNER BRANDS: LaGuardia Sues Over Unsolicited Texts, Calls
DIPLOMAT PHARMACY: Robbins Geller to Lead in Securities Fraud Suit
ELECTROCORE INC: Faces 2 IPO-Related Class Lawsuits in New Jersey
ENHANCED RECOVERY: Pacheco Alleges Violation under FDCPA
EQUIFAX: A. Keller Youngest Woman to Lead Data Breach MDL
EROS INTERNATIONAL: 2 Putative Class Suits in New Jersey Underway
FAT BRANDS: Jordan and Kovacs Narrow Claims in Amended Complaint
FAT BRANDS: Sept. 11 Status Conference in Rojany Suit
FOOD LION: Court Refuses to Certify Class in Ratcliffe Suit
GC SERVICES: Placeholder Bid for Class Certification Filed
GENRIC INC: Vance, et al Seek OT Pay for Security Shift Supervisor
GODIVA CHOCOLATIER: Faces Deceptive Advertising Class Action
GOOGLE LLC: Faces Google Assistant Privacy Class Action
GREENSKY INC: Still Defends Class Actions in New York over IPO
GSE SYSTEMS: Bid to Dismiss Joyce Class Action Pending in Maryland
HARBOR ELECTRONICS: Magpuga Sues over Illegal Employment Practices
HARROW HEALTH: Gaukel Class Action Complaint in Idaho Underway
HC2 HOLDINGS: Schuff Stockholders Litigation Still Ongoing
HC2 HOLDINGS: Sept. 17 Final Settlement Hearing in Ohio Case
HEADWAY TECHNOLOGIES: Suit Alleges HDD Price-Fixing
HEALTH INSURANCE: Bid to Dismiss Fla. Consolidated Suit Narrowed
HERITAGE COMMERCE: Files Supplemental Documents Amid Parshall Suit
HERTZ CORP: Court Rejects Conditional Class Certification Bid
IDEANOMICS INC: Jose Pinto Claro Da Fonseca Miranda Suit Underway
INSPIRE ENERGY: Removes Birchler Suit to D. Massachusetts
INUVO INC: Confidential Settlement Reached in Merger-Related Suit
JAGUAR HEALTH: Discovery in Plant Class Action Begins
JEFFERSON CAPITAL: Alvarez Asserts Breach of FDCPA
JEFFERSON CAPITAL: Malolot Alleges Violation under FDCPA
JOHNS HOPKINS: Settles ERISA Class Action for $14MM
JONES GROUP: Diaz Alleges Violation under ADA
JPMORGAN CHASE: Diaz Suit Seeks Unpaid Overtime Pay
JUDGMENT ACQUISITIONS: Roberts Alleges Wrongful Debt Collections
KAISER FOUNDATION: Court Rules on Settlement Posture in Gamble Suit
KRUSE-WESTERN INC: Rule 26(f) Conference in Zavala ERISA Suit Nixed
LADENBURG THALMANN: Class Cert. Bid in Miller Energy Litig. Pending
LADENBURG THALMANN: Dismissal of Plains All American Litig. Upheld
LADENBURG THALMANN: Trial in ARCP Litigation Set for Jan. 2020
LEASE SUPERVISORS: Leave to File 1st, 2nd Amended Mallory Denied
LG ELECTRONICS: Court Narrows Claims in Consolidated Hudock Suit
LIBERTY MUTUAL: Pennsylvania Court Denies Bid to Remand WCA Suit
LIFEVANTAGE CORP: Awaits Court Decision on Bid to Drop Smith Suit
LINDEN BULK: Castro Seeks Unpaid Wages for Truck Drivers
MALCOLM S GERALD: Holzman Moves to Certify FDCPA/FCCPA Class
MALLINCKRODT PLC: Continues to Defend Strougo Class Suit
MANOLO BLAHNIK: Diaz Asserts Breach of Disabilities Act
MAXIMUS INC: Dismissal of Virginia Class Action Upheld
MCCLATCHY CO: Trial in Sawin Class Action Ongoing
MCDONALD'S CORP: Turner Alleges Illegal Hiring Practices
MDL 2437: Court Denies Summary Judgment Bid in Antitrust Suit
MDL 2885: Vega Suit over Combat Arms Earplugs Consolidated
MDL 2903: Willis Suit over Rock 'N Play Sleeper Consolidated
MDL 2904: Allende, et al v. Quest over Data Breach Consolidated
MDL 2904: Cinelli et al Suit v. Quest over Data Theft Consolidated
MDL 2904: Freeman Suit v. LabCorp. over Data Breach Consolidated
MDL 2904: Henry v. Optum 360 over Data Breach Consolidated
MDL 2904: Jilek v. LabCorp. over Data Breach Consolidated
MDL 2904: Key v. Quest Over Data Breach Consolidated
MDL 2904: Wallach v. LabCorp. over Data Breach Consolidated
MEDICAL NECESSITIES: Certification of Delivery Techs Class Sought
MEDIDATA SOLUTIONS: Merger Deal with Dassault Systemes Challenged
MEDLEY LLC: Oct. 24 Hearing for Settlement of FrontFour Class Suit
MEDLEY LLC: Still Faces Consolidated Class Suit in Virginia
MERCK & CO: Deal in Smith Discrimination Suit Has Prelim Approval
MG SECURITY SERVICES: Atkinson Suit Seeks Reimbursements
MGT CAPITAL: Settlement Talks Ongoing for Class Suits in NJ & NY
MICHAEL'S FAMILY: $750K Deal in Blofstein Suit Has Final Approval
MICHIGAN STATE: Franczek P.C. Attorneys Discuss Title IX Lawsuit
MIDWEST RECOVERY: Franklin Moves to Certify Class and Subclass
MONARCH RECOVERY: Santiago Suit Moved to E.D. New York
MORGAN STANLEY: Bid to Dismiss GSE Bonds Antitrust Suit Pending
MORGAN STANLEY: Iowa Public Employees' Suit Underway
MOUNTAINVIEW CORRECTIONAL: Moore et al Seek Class Certification
NANTKWEST INC: Settlement in Sudunagunta Granted Final Approval
NEUBASE THERAPEUTICS: Awaits Court Ruling on Bid to Nix Class Suit
NEW HAVEN, CT: Court Hears Arguments in Lead Poisoning Class Suit
NEW ORLEANS, LA: Court Severs Caluda Claims Against City
NEW ORLEANS, LA: Linebarger, UGSL Dropped as Defendants in Caluda
NEW PRIME: Haworth Seeks to Certify Class of Junior Drivers
NEW PROSPECT: Can Compel Arbitration in Baker FLSA Suit
NEW YORK INSULATION: Underpays Laborers, Bryzski Suit Alleges
NOBILIS HEALTH: Judge Approves Cy Pres Distribution to Fund
NORTHLAND GROUP: Can't Compel Arbitration in Maher FDCPA Suit
NOVA LIFESTYLE: Defendants Argue Barney Suit Fails to State Claim
NRA GROUP: 7th Cir. Affirms Judgment in Bernal FCDPA Suit
NTT DATA: Court Dismisses Mandala Job Discrimination Suit
NUSRET MIAMI: Court Certifies Class of Tipped Employees
NVIDIA CORP: Mellanox Technologies Still Defends Stein Class Suit
NVIDIA CORP: Says Securities Suit Plaintiffs Fail to State Claim
NVIDIA: Ct. Extends Page Limit in Securities Suit Dismissal Bid
OCWEN MORTGAGE: Court Dismisses 2nd Amended Gray FCRA Suit
OLD POST: Murphy Files Class Suit in New York
PACIFIC BIOSCIENCES: Accrues $300K at June 30 for Settled Suits
PERSPECTA INC: Says Units Will Be Liable in Forsyth Class Action
PETRO RIVER: Appeal in Donelson-Friend Class Suit Still Pending
PIZZA CZAR: Ewing Files FLSA Suit in Arkansas
PROTHENA CORP: Securities Class Suit in SDNY Ongoing
REGAL AUTOMOTIVE: Grant Moves for Class Certification Under TCPA
ROADRUNNER TRANS: Approval of Wisconsin Case Settlement Sought
SANTANDER BANK: Third Circuit Appeal Filed in Aversano Suit
SCWORX CORP: Faces $135,000 Indemnification Suit by Network One
SDS STAFFING: Martin Sues Over Unpaid Overtime Wages
SELECT PORTFOLIO: Bid to Remand Alper Suit to State Court Denied
SELLAS LIFE: Bid to Dismiss Abstral(R) Related Suit Remains Pending
SHANGHAI ORIGINAL: Found Liable for FLSA, NYLL Violations in Jin
SHUTTERFLY INC: Cheung Files Suit Over Apollo Merger Deal
SIGNATURE CONSULTANTS: T. Rotor Suit Remanded to Calif. State Court
SIMPLY WIRELESS: Carpenter Seeks Unpaid Overtime Wages
SOLID BIOSCIENCES: Robert Lowinger Voluntarily Drops Claims
SOUTHWEST AIRLINES: Bid to Change Venue in Huntsman Suit Denied
SPRINT CORP: Meneses Class Suit Voluntarily Dismissed
SUBURBAN PROPANE: Continues to Defend NY & Pennsylvania Suits
SUBWAY DEVELOPMENT: Wilson & Mowan Seek OT for Field Consultants
SUNRUN INC: Settlement in Slovin TCPA Suit Has Final Approval
SWITCH INC: Sept. 4 Rule 26(f) Conference in Cai Securities Suit
SYSCO SACRAMENTO: Faces Calder Suit in California Superior Court
TALLGRASS FREIGHT: Dobson Hits Misclassification, Claims Overtime
TENNESSEE: Settlement in Fraizer Prisoners Suit Has Final Approval
TO-RISE LLC: $627K Settlement in Lora Suit Wins Prelim. Approval
TRUMP ORGANIZATION: Judge Allows Putative Class Claims to Proceed
TWOPRO ENERGY: Field Workers Denied Overtime Wages, Woods Says
VEGAN WHOLESALE: Denied Workers Overtime, Minimum Wages, Says Suit
VERB TECHNOLOGY: Hartmann Class Action in California Underway
WALGREEN CO: Faces Suit over Improper Retirement Investments
WILLIAMS INDUSTRIAL: Appeal in Budde Class Suit Remains Pending
WILLIAMSON PR: Fischler Alleges Violation under ADA
YANGTZE RIVER: Bid to Dismiss Behrendsen Class Action Pending
YOGAWORKS INC: Dec. 9 Hearing on Bid to Dismiss Federal Court Suit
ZOGENIX INC: Lake Class Action in California Ongoing
[*] Russian President Signs Class Action Law
[*] Supreme Court Decided 5-10 Cases Started as Class Actions
*********
2U INC: Glancy Prongay Files Securities Class Action
----------------------------------------------------
Glancy Prongay & Murray LLP ("GPM") on Aug. 8 disclosed that it has
filed a class action lawsuit in the United States District Court
for the Southern District of New York, captioned Harper v. 2U.
Inc., et al., (Case No. 1:19-cv-07390), on behalf of persons and
entities that purchased or otherwise acquired 2U, Inc. (NASDAQ:
TWOU) ("2U" or the "Company") securities between February 25, 2019
and July 30, 2019, inclusive (the "Class Period"). Plaintiff
pursues claims under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 (the "Exchange Act").
Investors are hereby notified that they have 60 days from August 8,
2019, the date of this notice to move the Court to serve as lead
plaintiff in this action.
On May 7, 2019, the Company lowered its revenue guidance for fiscal
2019 to a range of $534 to $537 million, from prior guidance range
of $546.6 to $550.8 million, due to declining average enrollments
in some of its largest graduate programs.
On this news, the Company's share price fell $15.16, or nearly 26%,
to close at $44.77 per share on May 8, 2019, on unusually heavy
trading volume.
Then on July 30, 2019, after the market closed, the Company
reported a larger-than-expected loss for second quarter 2019. The
Company also revised its guidance for fiscal 2019, expecting a net
loss between $157.5 and $151.5 million, compared to prior net loss
guidance between $79.0 and $77.2 million, because it would
"moderate [its] grad program launch cadence."
On this news, the Company's share price fell $23.70, or nearly 65%,
to close at $12.80 per share on July 31, 2019, on unusually heavy
trading volume.
The complaint filed in this class action alleges that throughout
the Class Period, Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to
investors: (1) that the Company faced increasing competition in
online education and particularly regarding graduate programs; (2)
that the Company faced certain program-specific issues that
negatively impacted its performance; (3) that, as a result, the
Company's business model was not sustainable; (4) that the Company
would slow its program launches; and (5) 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 2U securities during the Class Period, you may
move the Court no later than 60 days from August 8, 2019, the date
of this notice to ask the Court to appoint you as lead plaintiff.
To be a member of the Class you need not take any action at this
time; you may retain counsel of your choice or take no action and
remain an absent member of the Class. If you wish to learn more
about this action, or if you have any questions concerning this
announcement or your rights or interests with respect to these
matters, please contact Lesley Portnoy, Esquire, of GPM, 1925
Century Park East, Suite 2100, Los Angeles, California 90067 at
310-201-9150, Toll-Free at 888-773-9224, by email to
shareholders@glancylaw.com, or visit our website at
www.glancylaw.com. If you inquire by email please include your
mailing address, telephone number and number of shares purchased.
[GN]
2U INC: Kirby McInerney Files Securities Class Action Lawsuit
-------------------------------------------------------------
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 2U, Inc. (2U
or the Company) (NASDAQ: TWOU) securities during the period from
February 25, 2019 to July 30, 2019 (the Class Period). Investors
have until October 7, 2019 to apply to the Court to be appointed as
lead plaintiff in the lawsuit.
The lawsuit alleges that 2U failed to disclose to investors that:
(i) the Company faced increasing competition in online education
and particularly regarding graduate programs; (ii) the Company
faced certain program-specific issues that negatively impacted its
performance; (iii) that, as a result, the Companys business model
was not sustainable; and (iv) that the Company would slow its
program launches.
On May 7, 2019, the Company lowered its revenue guidance for fiscal
2019 to a range of $534 to $537 million, from prior guidance range
of $546.6 to $550.8 million, due to declining average enrollments
in some of its largest graduate programs. On this news, 2Us stock
price fell $15.16 per share, or 25.3%, to close at $44.77 on May 8,
2019.
Then on July 30, 2019, the Company reported a larger-than-expected
loss for second quarter 2019. The Company also revised its guidance
for fiscal 2019, expecting a net loss between $157.5 and $151.5
million, compared to prior net loss guidance between $79.0 and
$77.2 million, because it would moderate [its] grad program launch
cadence. On this news, 2Us stock price fell $23.70 per share, or
64.9%, to close at $12.80 on July 31, 2019.
If you acquired 2U 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 firms 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 McInerneys website: http://www.kmllp.com/
Contact:
Thomas W. Elrod, Esq.
Kirby McInerney LLP
Tel.: (212) 371-6600
E-mail: investigations@kmllp.com
Website: www.kmllp.com [GN]
ABIOMED INC: Oct. 7 Lead Plaintiff Motion Deadline Set
------------------------------------------------------
Pomerantz LLP on Aug. 6 disclosed that a class action lawsuit has
been filed against ABIOMED, Inc. ("ABIOMED" or the "Company")
(NASDAQ: ABMD) 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-07319, is on behalf of a class
consisting of all persons and entities who purchased or otherwise
acquired the publicly traded securities of ABIOMED between January
31, 2019 through July 31, 2019, both dates inclusive (the "Class
Period"), seeking to recover 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,
against the Company and certain of its top officials.
If you are a shareholder who purchased ABIOMED securities during
the class period, you have until, October 7, 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.
ABIOMED was founded in 1981 and is headquartered in Danvers,
Massachusetts. The Company engages in the research, development,
and sale of medical devices to assist or replace the pumping
function of the failing heart, and also provides continuum of care
to heart failure patients.
ABIOMED offers, among other things, catheters and micro heart pumps
under the Impella brand with integrated motors and sensors for use
in interventional cardiology. The Company sells its products
through direct sales and clinical support personnel in the United
States, Canada, Europe, and Asia.
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) ABIOMED's revenue growth was
in decline; (ii) the Company did not have a sufficient plan in
place to stem its declining revenue growth; (iii) the Company was
unlikely to restore its revenue growth over the next several fiscal
quarters; (iv) consequently, ABIOMED was reasonably likely to
revise its full-year 2020 guidance in a way that would fall short
of the Company's prior projections and market expectations; and (v)
as a result, the Company's public statements were materially false
and misleading at all relevant times.
On August 1, 2019, pre-market, Defendants issued a press release
announcing ABIOMED's financial and operating results for the first
quarter of fiscal year 2020 (the "1Q 2020 Press Release"). Among
other results, the 1Q 2020 Press Release disclosed ABIOMED's third
consecutive quarter of slowing revenue growth, reporting
"first-quarter fiscal 2020 revenue of $207.7 million, an increase
of 15.4% compared to revenue of $180.0 million for the same period
of fiscal 2019". This represented a significant decrease in
revenue growth from 2Q 2019. Commenting on the Company's
surprising financial result disappointment, the Company's Chairman,
President, and CEO, Defendant Michael R. Minogue ("Minogue"),
revealed that the Company's "new training programs, organizational
changes in distribution, and [] external initiatives . . . will
require time to drive more growth in the future".
The Company also slashed its previously issued full-year 2020
guidance from total revenues in the range of $900-945 million to
total revenues in the range of $885-925 million, which fell roughly
$22 million short of market expectations.
Following the Company's disclosure of its 1Q 2020 financial
performance and revised guidance, Investor's Business Daily
published an article raising concern with Defendant Minogue's prior
public statements, titled: "This Medtech's CEO Promised To 'Correct
The Course' -- That Didn't Happen".
On this news, ABIOMED's stock price fell $73.69 per share, or
26.45%, to close at $204.87 per share on August 1, 2019.
With offices in New York, Chicago, Los Angeles, and Paris, The
Pomerantz Firm -- http://www.pomerantzlaw.com– concentrates it
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]
ACTION COLLECTION: McDaniel Seeks to Certify Class
--------------------------------------------------
In the class action lawsuit styled as TANYA McDANIEL, on behalf of
herself and all others similarly situated, the Plaintiff, v. ACTION
COLLECTION AGENCIES, INC., a Massachusetts incorporated company,
d/b/a ACTION COLLECTION AGENCY OF BOSTON, the Defendant, Case No.
2:18-cv-14459-KAM (S.D. Fla.), the Plaintiff asks the Court for an
order:
1. certifying a class of:
"(i) all natural persons with addresses in the Florida
Counties that comprise the geographical boundaries of the
United States District Court for the Southern District of
Florida, namely Miami-Dade, Monroe, Broward, Palm Beach,
Martin, Saint Lucie, Indian River, Okeechobee, and Highlands
Counties (ii) to whom letters that contained the language:
"YOU HAVE THE RIGHT TO MAKE A WRITTEN OR ORAL REQUEST THAT
TELEPHONE CALLS REGARDING YOUR DEBT NOT BE MADE TO YOU AT
YOUR PLACE OF EMPLOYMENT. ANY SUCH ORAL REQUEST WILL BE
VALID FOR ONLY 10 DAYS UNLESS YOU PROVIDE WRITTEN
CONFIRMATION OF THE REQUEST POSTMARKED OR DELIVERED WITHIN
SEVEN (7) DAYS OF SUCH REQUEST. YOU MAY TERMINATE THIS
REQUEST BY WRITING TO THIS AGENCY." (iii) that were mailed,
or caused to be mailed, by the Defendant (iv) and were not
returned undeliverable by the U.S. Post Office (v) in an
attempt to collect a debt incurred for personal, family, or
household purposes (vi) during the one-year period prior to
the filing of the original Complaint in this action";
2. appointing Tanya McDaniel as Class Representative; and
3. appointing Leo W. Desmond, Esq. as Class Counsel.[CC]
Attorney for the Plaintiff are:
Leo W. Desmond, Esq.
DESMOND LAW FIRM, P.C.
5070 Highway A1A, Suite D
Vero Beach, FL 32963
Telephone: 772.231.9600
Facsimile: 772.231.0300
E-mail: lwd@desmondlawfirm.com
AHMAD CHATILA: Day Appeals Ruling to Supreme Court
--------------------------------------------------
Eric O Day, et al., Applicants, vs. Ahmad Chatila, et al., the
Defendants, Case No. 19A168 (U.S., Aug. 13, 2019), is an appeal
filed in the Supreme Court of United States from a lower court
decision with Case No. 18-2621 (2nd Cir.).
The applicant has sought an extension of the time to file a
petition for a writ of certiorari from September 5, 2019 to
November 4, 2019.[BN]
Attorneys for the Applicants are:
Thomas James McKenna, Esq.
GAINEY MCKENNA & EGLESTON
440 Park Avenue South Fifth Floor
New York, NY 10016
E-mail: jmckenna@gme-law.com
AKERS BIOSCIENCES: Final Hearing on Faulkner Accord Set for Nov. 8
------------------------------------------------------------------
A final hearing for the settlement of the consolidated class
actions of Faulkner v. Akers Biosciences, Inc., No. 2:18-cv-10521
(D.N.J.) and Gleason v. Akers Biosciences, Inc., No. 2:18-cv-10805
(D.N.J.) has been scheduled for November 8, 2019, according to
Akers Biosciences, Inc.'s Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarterly period ended June 30,
2019.
On June 13, 2018, Plaintiff Tim Faulkner filed a class action
complaint alleging securities violations against Akers Biosciences,
Inc. ("Akers"), John J. Gormally, and Gary M. Rauch ("Individual
Defendants") (together with Akers, "Defendants") on behalf of all
persons and entities who purchased publicly traded Akers securities
from May 15, 2017 through June 5, 2018 (the "Faulkner Action").
The complaint alleges violations of Section 10(b) of the Exchange
Act and Rule 10b-5 against all Defendants, and violations of
Section 20(a) of the Exchange Act against the Individual
Defendants. In particular, the complaint alleges that Defendants
made false and/or misleading statements and/or failed to disclose
in its first, second, and third quarter 2017 10-Qs and its 2017
10-K that: (1) Akers was improperly recognizing revenue for the
fiscal year ended December 31, 2017; and, (2) Akers had downplayed
weaknesses in its internal controls over financial reporting and
failed to disclose the true extent of those weaknesses.
On June 20, 2018, Plaintiff David Gleason filed a class action
complaint under the caption Gleason v. Akers Biosciences, Inc., No.
2:18-cv-10805 (D.N.J.) based on the same allegations and causes of
action (the "Gleason Action").
On November 21, 2018, the Faulkner and Gleason Actions were
consolidated under the Faulkner Action docket. The parties
conducted a mediation on January 10, 2019 and agreed to a
settlement in principle disposing of the consolidated action as to
all Defendants, including the Individual Defendants.
On March 8, 2019, the parties signed a settlement agreement,
subject to approval by the Court, whereby the Company agreed to pay
US$2,250,000 in exchange for full releases and discharge of all
claims against the Company. On the same day, Lead Plaintiffs filed
a motion for preliminary approval of the settlement and to
establish notice procedures.
On July 3, 2019, the Court granted the motion for preliminary
approval and scheduled a final settlement hearing for November 8,
2019. On or about July 24, 2019, the Company's D&O insurer sent
the settlement payment of US$2,250,000 to the settlement agent for
the class.
Akers Biosciences, Inc., together with its subsidiaries, develops,
manufactures, and supplies rapid screening and testing products
designed to deliver healthcare information to healthcare providers
and consumers in the United States, the People's Republic of China,
and internationally. Akers Biosciences, Inc. was founded in 1989
and is headquartered in Thorofare, New Jersey.
ALLIED NEVADA: Court Enters Protective Order in Securities Suit
---------------------------------------------------------------
Magistrate Judge William G. Cobb of the U.S. District Court for the
District of Nevada has entered the parties' Confidentiality
Agreement and Stipulated Protective Order in the case, In re ALLIED
NEVADA GOLD CORP. SECURITIES LITIGATION, Case No.
3:14-CV-00175-LRH-WGC (D. Nev.).
The protections conferred by the Stipulation and Order cover not
only Protected Material, but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts,
summaries, or compilations of Protected Material; and (3) any
testimony, conversations, or presentations by Parties or their
Counsel that might reveal Protected Material. Any use of Protected
Material at trial will be governed by a separate agreement or
order.
Confidential Discovery Material filed with the Court, and portions
of pleadings, motions or other papers filed with the Court that
disclose such Confidential Discovery Material, will be filed under
seal with the Clerk of the Court in accordance with Local Rule IA
10-5 and kept under seal until further order of the Court. The
parties will use their best efforts to minimize such sealing. Any
party may challenge such sealing in accordance with applicable
law.
A Party may object to the designation of Discovery Material as
"Confidential" at any time. Unless a prompt challenge to a
Designating Party's confidentiality designation is necessary to
avoid foreseeable, substantial unfairness, unnecessary economic
burdens, or a significant disruption or delay of the litigation, a
Party does not waive its right to challenge a confidentiality
designation by electing not to mount a challenge promptly after the
original designation is disclosed.
The Stipulation and Order will become effective among the Parties
immediately upon its execution, and will survive any settlement,
discontinuance, dismissal, judgment or other disposition of the
Action.
Within 60 days of the final disposition of the Action (including
the time for appeal), all Confidential Discovery Material shall, at
the Receiving Party's discretion, be promptly returned to the
Producing Party or destroyed. The Counsel may retain a copy of all
pleadings, motion papers, transcripts, legal memoranda,
correspondence or attorney work product, even if such material
contains Confidential Discovery Material. Any such retained
information remains subject to the terms of this Stipulated
Protective Order.
The Court will retain jurisdiction over all persons subject to the
Stipulation and Order to the extent necessary to enforce any
obligations arising hereunder or to impose sanctions for any
violation thereof.
A full-text copy of the Court's July 19, 2019 Order is available at
https://is.gd/bN6fKm from Leagle.com.
Andrey Slomnitsky, Consol Plaintiff, represented by Brian E. Lunt,
Aaron & Paternoster, Ltd..
Andrey Slomnitsky, Consol Plaintiff, represented by Charles J.
Piven -- piven@browerpriven.com -- Brower Piven, pro hac vice,
David A.P. Brower -- brower@browerpiven.com -- Brower Piven &
Martin A. Muckleroy -- info@muckleroylunt.com -- Muckleroy Lunt.
Movses Marjanian, Plaintiff, represented by Mario Alba, Jr. --
malba@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac
vice, Martin A. Muckleroy, Muckleroy Lunt, Samuel H. Rudman --
srudman@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac
vice & David C. OMara, The OMara Law Firm, P.C..
Jose Parraga, Plaintiff, represented by Matthew L. Sharp, Matthew
L. Sharp, Ltd..
Jeanette Parraga, Plaintiff, represented by Matthew L. Sharp,
Matthew L. Sharp, Ltd..
Janet Martinez, Plaintiff, represented by Andrew R. Muehlbauer --
andrew@mlolegal.com -- Muehlbauer Law Office, Ltd., pro hac vice,
Griffith H. Hayes -- ghayes@cookseylaw.com -- Litchfield Cavo LLP
& Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz
LLP, pro hac vice.
Jeff Croucier, Movant, represented by Erik D. Buzzard --
ebuzzard@palumbolawyers.com -- Palumbo Bergstrom LLP & Sean P.
Connell -- sconnell@palumbolawyers.com -- Palumbo Bergstrom LLP.
LBP Holdings Ltd., Movant, represented by Griffith H. Hayes,
Litchfield Cavo LLP, Jeremy Alan Lieberman, Pomerantz LLP, pro hac
vice, Patrick V. Dahlstrom -- pdahlstrom@pomlaw.com -- Pomerantz
Haudek Block Grossman & Gross LLP & Andrew R. Muehlbauer,
Muehlbauer Law Office, Ltd., pro hac vice.
Richard Heil, Movant, represented by Naumon A. Amjed --
namjed@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, Ryan Thomas
Degnan -- rdegnan@ktmc.com -- Kessler Topaz Meltzer & Check, LLP &
Kirk B. Lenhard -- klenhard@bhfs.com -- Brownstein Hyatt Farber
Schreck, LLP.
State-Boston Retirement System, Movant, represented by Christopher
Joseph Keller -- ckeller@labaton.com -- Labaton Sucharow LLP,
Michael W. stocker -- mstocker@labaton.com -- Labaton Sucharow LLP
& Kirk B. Lenhard -- klenhard@bhfs.com -- Brownstein Hyatt Farber
Schreck, LLP.
United Teamster Pension Fund-A, Movant, represented by Brian O.
O'Mara -- bomara@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP.
Sherman Olson, Movant, represented by Brian O. O'Mara, Robbins
Geller Rudman & Dowd LLP.
Susan Olson, Movant, represented by Brian O. O'Mara, Robbins
Geller Rudman & Dowd LLP.
Thomas Frost, Movant, represented by Lionel Z. Glancy --
lglancy@glancylaw.com -- Glancy Prongay & Murray LLP, Michael M.
Goldberg, Goldberg Law PC, pro hac vice & Patrick R. Leverty --
pat@levertylaw.com -- Leverty & Associates Chtd.
Beth Frost, Movant, represented by Patrick R. Leverty, Leverty &
Associates Chtd.
Beth Thomas, Movant, represented by Patrick R. Leverty, Leverty &
Associates Chtd.
Allied Nevada Gold Corp., Defendant, represented by Brendan Peter
Cullen -- cullenb@sullcrom.com -- Sullivan & Cromwell LLP, pro hac
vice, Laura K. Oswell -- welll@sullcrom.com -- Sullivan &
Cromwell, LLP, pro hac vice, Nathaniel Lyon Green --
nn@sullcrom.com -- Sullivan & Cromwell, LLP, pro hac vice & Robert
A. Sacks -- sacksr@sullcrom.com -- Sullivan & Cromwell LLP., pro
hac vice.
Scott A Caldwell, Defendant, represented by Anjali D. Webster --
AWebster@dickinson-wright.com -- Gordon Silver, Brendan Peter
Cullen, Sullivan & Cromwell LLP, pro hac vice, Brian R. Irvine --
BIrvine@dickinson-wright.com -- Dickinson Wright, Laura K. Oswell,
Sullivan & Cromwell, LLP, pro hac vice, Nathaniel Lyon Green,
Sullivan & Cromwell, LLP, pro hac vice, Robert A. Sacks, Sullivan
& Cromwell LLP., pro hac vice & John Patrick Desmond --
jdesmond@dickinsonwright.com -- Dickinson Wright PLLC.
Robert M Buchan, Defendant, represented by Anjali D. Webster,
Gordon Silver, Brendan Peter Cullen, Sullivan & Cromwell LLP, pro
hac vice, Brian R. Irvine, Dickinson Wright, Laura K. Oswell,
Sullivan & Cromwell, LLP, pro hac vice, Nathaniel Lyon Green,
Sullivan & Cromwell, LLP, pro hac vice, Robert A. Sacks, Sullivan
& Cromwell LLP., pro hac vice & John Patrick Desmond, Dickinson
Wright PLLC.
Randy E Buffington, Defendant, represented by Anjali D. Webster,
Gordon Silver, Brendan Peter Cullen, Sullivan & Cromwell LLP, pro
hac vice, Brian R. Irvine, Dickinson Wright, Laura K. Oswell,
Sullivan & Cromwell, LLP, pro hac vice, Nathaniel Lyon Green,
Sullivan & Cromwell, LLP, pro hac vice, Robert A. Sacks, Sullivan
& Cromwell LLP., pro hac vice & John Patrick Desmond, Dickinson
Wright PLLC.
Stephen M Jones, Defendant, represented by Anjali D. Webster,
Gordon Silver, Brendan Peter Cullen, Sullivan & Cromwell LLP, pro
hac vice, Brian R. Irvine, Dickinson Wright, Laura K. Oswell,
Sullivan & Cromwell, LLP, pro hac vice, Nathaniel Lyon Green,
Sullivan & Cromwell, LLP, pro hac vice, Robert A. Sacks, Sullivan
& Cromwell LLP., pro hac vice & John Patrick Desmond, Dickinson
Wright PLLC.
Jeff Croucier, Defendant, represented by Erik D. Buzzard, Palumbo
Bergstrom LLP & Sean P. Connell, Palumbo Bergstrom LLP.
ALLIED NEVADA: Form of Production Agreement in Securities Suit OK'd
-------------------------------------------------------------------
Magistrate Judge William G. Cobb of the U.S. District Court for the
District of Nevada has entered the parties' stipulated form of
production agreement that will govern the format in which the
parties produce documents in the case, In re ALLIED NEVADA GOLD
CORP. SECURITIES LITIGATION, Case No. 3:14-CV-00175-LRH-WGC (D.
Nev.).
Hard copy documents should be scanned as single-page, Group IV, 300
DPI TIFF images with an .opt image cross-reference file and a
delimited database load file (i.e, .dat). The database load file
should contain the following fields: "BEGNO," "ENDNO," "PAGES,"
"VOLUME" and "CUSTODIAN." The documents should be logically
unitized (i.e., distinct documents will not be merged into a single
record, and single documents will not be split into multiple
records) and be produced in the order in which they are kept in the
usual course of business.
Electronically stored information ("ESI") should be produced in
single-page, black and white, TIFF Group IV, 300 DPI TIFF images
with the exception of spreadsheet type files, source code, audio
and video files, which should be produced in native format.
If a document is produced in native, a single-page, Bates stamped
image slip sheet stating the document has been produced in native
format should also be provided.
Each party will remove exact duplicate documents based on MD5 or
SHA-1 hash values, at the family level. Attachments should not be
eliminated as duplicates for purposes of production, unless the
parent e-mail and all attachments are also duplicates.
Technology Assisted Review will mean and refer to a process of
machine learning to assist in the categorization and ranking for
review of a collection of documents using a computerized system
that utilizes the decisions that a party, or its counsel, has made
on a smaller subset of the collection and then applies those
decisions to the balance of the collection.
All ESI will be produced with a delimited, database load file that
contains the metadata fields listed in Table 1, attached to the
Order. The metadata produced should have the correct encoding to
enable preservation of the documents' original language.
Embedded files will be produced as attachments to the document that
contained the embedded file, with the parent/child relationship
preserved. The embedded files and the original document containing
the embedded files will all be produced in accordance with the
formats agreed upon herein (e.g., Excel files as native files,
etc.).
Compressed file types (e.g., .ZIP, .RAR, .CAB, .Z) should be
decompressed so that the lowest level document or file is
extracted.
To the extent a response to discovery requires production of
electronic information stored in a database, including the
production of text messages or similar communications, the parties
will meet and confer regarding methods of production. The parties
will consider whether all relevant information may be provided by
querying the database for discoverable information and generating a
report in a reasonably usable and exportable electronic file.
The producing party will compile an exception report enumerating
any unprocessed or unprocessable documents, their file type and the
file location.
To maximize the security of information in transit, any media on
which documents are produced may be encrypted. In such cases, the
producing party will transmit the encryption key or password to the
receiving party, under separate cover, contemporaneously with
sending the encrypted media.
Finally, if documents that the parties have agreed to produce in
native format need to be redacted, the parties should meet and
confer regarding how to implement redactions while ensuring that
proper formatting and usability are maintained.
A full-text copy of the Court's July 19, 2019 Order is available at
https://is.gd/AWdiUK from Leagle.com.
Andrey Slomnitsky, Consol Plaintiff, represented by Brian E. Lunt,
Aaron & Paternoster, Ltd..
Andrey Slomnitsky, Consol Plaintiff, represented by Charles J.
Piven -- piven@browerpriven.com -- Brower Piven, pro hac vice,
David A.P. Brower -- brower@browerpiven.com -- Brower Piven &
Martin A. Muckleroy -- info@muckleroylunt.com -- Muckleroy Lunt.
Movses Marjanian, Plaintiff, represented by Mario Alba, Jr. --
malba@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac
vice, Martin A. Muckleroy, Muckleroy Lunt, Samuel H. Rudman --
srudman@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac
vice & David C. OMara, The OMara Law Firm, P.C..
Jose Parraga, Plaintiff, represented by Matthew L. Sharp, Matthew
L. Sharp, Ltd..
Jeanette Parraga, Plaintiff, represented by Matthew L. Sharp,
Matthew L. Sharp, Ltd..
Janet Martinez, Plaintiff, represented by Andrew R. Muehlbauer --
andrew@mlolegal.com -- Muehlbauer Law Office, Ltd., pro hac vice,
Griffith H. Hayes -- ghayes@cookseylaw.com -- Litchfield Cavo LLP
& Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz
LLP, pro hac vice.
Jeff Croucier, Movant, represented by Erik D. Buzzard --
ebuzzard@palumbolawyers.com -- Palumbo Bergstrom LLP & Sean P.
Connell -- sconnell@palumbolawyers.com -- Palumbo Bergstrom LLP.
LBP Holdings Ltd., Movant, represented by Griffith H. Hayes,
Litchfield Cavo LLP, Jeremy Alan Lieberman, Pomerantz LLP, pro hac
vice, Patrick V. Dahlstrom -- pdahlstrom@pomlaw.com -- Pomerantz
Haudek Block Grossman & Gross LLP & Andrew R. Muehlbauer,
Muehlbauer Law Office, Ltd., pro hac vice.
Richard Heil, Movant, represented by Naumon A. Amjed --
namjed@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, Ryan Thomas
Degnan -- rdegnan@ktmc.com -- Kessler Topaz Meltzer & Check, LLP &
Kirk B. Lenhard -- klenhard@bhfs.com -- Brownstein Hyatt Farber
Schreck, LLP.
State-Boston Retirement System, Movant, represented by Christopher
Joseph Keller -- ckeller@labaton.com -- Labaton Sucharow LLP,
Michael W. stocker -- mstocker@labaton.com -- Labaton Sucharow LLP
& Kirk B. Lenhard -- klenhard@bhfs.com -- Brownstein Hyatt Farber
Schreck, LLP.
United Teamster Pension Fund-A, Movant, represented by Brian O.
O'Mara -- bomara@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP.
Sherman Olson, Movant, represented by Brian O. O'Mara, Robbins
Geller Rudman & Dowd LLP.
Susan Olson, Movant, represented by Brian O. O'Mara, Robbins
Geller Rudman & Dowd LLP.
Thomas Frost, Movant, represented by Lionel Z. Glancy --
lglancy@glancylaw.com -- Glancy Prongay & Murray LLP, Michael M.
Goldberg, Goldberg Law PC, pro hac vice & Patrick R. Leverty --
pat@levertylaw.com -- Leverty & Associates Chtd.
Beth Frost, Movant, represented by Patrick R. Leverty, Leverty &
Associates Chtd.
Beth Thomas, Movant, represented by Patrick R. Leverty, Leverty &
Associates Chtd.
Allied Nevada Gold Corp., Defendant, represented by Brendan Peter
Cullen -- cullenb@sullcrom.com -- Sullivan & Cromwell LLP, pro hac
vice, Laura K. Oswell -- welll@sullcrom.com -- Sullivan &
Cromwell, LLP, pro hac vice, Nathaniel Lyon Green --
nn@sullcrom.com -- Sullivan & Cromwell, LLP, pro hac vice & Robert
A. Sacks -- sacksr@sullcrom.com -- Sullivan & Cromwell LLP., pro
hac vice.
Scott A Caldwell, Defendant, represented by Anjali D. Webster --
AWebster@dickinson-wright.com -- Gordon Silver, Brendan Peter
Cullen, Sullivan & Cromwell LLP, pro hac vice, Brian R. Irvine --
BIrvine@dickinson-wright.com -- Dickinson Wright, Laura K. Oswell,
Sullivan & Cromwell, LLP, pro hac vice, Nathaniel Lyon Green,
Sullivan & Cromwell, LLP, pro hac vice, Robert A. Sacks, Sullivan
& Cromwell LLP., pro hac vice & John Patrick Desmond --
jdesmond@dickinsonwright.com -- Dickinson Wright PLLC.
Robert M Buchan, Defendant, represented by Anjali D. Webster,
Gordon Silver, Brendan Peter Cullen, Sullivan & Cromwell LLP, pro
hac vice, Brian R. Irvine, Dickinson Wright, Laura K. Oswell,
Sullivan & Cromwell, LLP, pro hac vice, Nathaniel Lyon Green,
Sullivan & Cromwell, LLP, pro hac vice, Robert A. Sacks, Sullivan
& Cromwell LLP., pro hac vice & John Patrick Desmond, Dickinson
Wright PLLC.
Randy E Buffington, Defendant, represented by Anjali D. Webster,
Gordon Silver, Brendan Peter Cullen, Sullivan & Cromwell LLP, pro
hac vice, Brian R. Irvine, Dickinson Wright, Laura K. Oswell,
Sullivan & Cromwell, LLP, pro hac vice, Nathaniel Lyon Green,
Sullivan & Cromwell, LLP, pro hac vice, Robert A. Sacks, Sullivan
& Cromwell LLP., pro hac vice & John Patrick Desmond, Dickinson
Wright PLLC.
Stephen M Jones, Defendant, represented by Anjali D. Webster,
Gordon Silver, Brendan Peter Cullen, Sullivan & Cromwell LLP, pro
hac vice, Brian R. Irvine, Dickinson Wright, Laura K. Oswell,
Sullivan & Cromwell, LLP, pro hac vice, Nathaniel Lyon Green,
Sullivan & Cromwell, LLP, pro hac vice, Robert A. Sacks, Sullivan
& Cromwell LLP., pro hac vice & John Patrick Desmond, Dickinson
Wright PLLC.
Jeff Croucier, Defendant, represented by Erik D. Buzzard, Palumbo
Bergstrom LLP & Sean P. Connell, Palumbo Bergstrom LLP.
AMAZON.COM: Waithaka Suit Moved to Western District of Washington
-----------------------------------------------------------------
BERNARD WAITHAKA; on behalf of himself and all others similarly
situated, the Plaintiff, v. AMAZON.COM, INC., and AMAZON LOGISTICS,
INC., the Defendants, Case No. 4:18-cv-40150 (Filed Sept. 7, 2019),
was transferred form the U.S. District Court for the District of
Massachusetts, to U.S. District Court for the Western District of
Washington (Seattle) on Aug 20, 2019. The Western District of
Washington Court Clerk assigned Case No. 2:19-cv-01320-RSM to the
proceeding. The case is assigned to the Hon. Judge Ricardo S.
Martinez.
Amazon.com, Inc., is an American multinational technology company
based in Seattle, Washington that focuses on e-commerce, cloud
computing, digital streaming, and artificial intelligence. It is
considered one of the Big Four technology companies along with
Google, Apple, and Facebook.[BN]
Attorneys for the Plaintiff are:
Adelaide Pagano, Esq.
Shannon Liss-Riordan, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston St., Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
E-mail: apagano@llrlaw.com
sliss@llrlaw.com
Attorneys for the Defendants are:
Douglas T. Schwarz, Esq.
Elizabeth M. Bresnahan, Esq.
Mary Grace Patterson, Esq.
Michael E. Kenneally, Esq.
Noah J. Kaufman, Esq.
Richard G Rosenblatt, Esq.
MORGAN, LEWIS & BOCKIUS LLP
One Federal Street
Boston, MA 02110
Telephone: (617) 341-7700
Facsimile: (617) 641-7701
E-mail: douglas.schwarz@morganlewis.com
elizabeth.bresnahan@morganlewis.com
marygrace.patterson@morganlewis.com
michael.kenneally@morganlewis.com
noah.kaufman@morganlewis.com
rrosenblatt@morganlewis.com
AMERICAN REALTY: Oct. 28 Class Action Opt-Out Deadline Set
----------------------------------------------------------
The following statement is being issued by Robbins Geller Rudman &
Dowd LLP regarding the American Realty Capital Properties, Inc.
Litigation:
In re American Realty Capital Properties, Inc. Litigation,
Civil Action No. 1:15-MC-00040-AKH (S.D.N.Y.)
FOR MORE INFORMATION PLEASE VISIT www.ARCPSecuritiesLitigation.com
or call 1-866-579-5209.
The United States District Court for the Southern District of New
York (the "Court") has certified a class action that is pending
against American Realty Capital Properties, Inc. ("ARCP" or the
"Company"), certain officers and directors of ARCP, ARCP's outside
auditor, and the underwriters of certain public offerings of ARCP
securities (collectively, "Defendants"). Defendants deny any
wrongdoing. IF YOU ARE A CLASS MEMBER, YOUR RIGHTS WILL BE AFFECTED
BY THIS CLASS ACTION LAWSUIT, WHICH HAS NOT SETTLED. TRIAL OF THE
LITIGATION IS SCHEDULED TO BEGIN IN JANUARY 2020. This card advises
you of information about your options. A long-form notice is
available on the case website or by calling the number above.
Who Is Included In The Class? All persons who purchased or
otherwise acquired ARCP common stock, preferred stock, or debt
securities ("ARCP Securities") during the period between February
28, 2013 and October 29, 2014 (the "Class Period"). As is explained
in the long-form notice, the Defendants and certain other persons
and entities are excluded from the Class by definition.
What Are My Options? This class action is being litigated and no
money has yet been recovered. If you do nothing, you will remain a
member of the Class and if there is a future recovery or
settlement, you may be eligible for a payment. If you remain a
Class member, you will be bound by all orders, whether favorable or
unfavorable, that the Court enters in this case, and you may not
pursue a lawsuit on your own behalf with regard to any of the
issues in this Litigation. Certain Defendants have indicated a
willingness to settle before trial. If any member of the Class
wishes to explore settlement, that member should communicate, by
counsel, with Michael J. Dowd of Robbins Geller Rudman & Dowd LLP,
who will then immediately let counsel for the appropriate
Defendant(s) know.
If you DO NOT want to remain a Class member and be legally bound by
anything that happens in this case or participate in any future
recovery, you must exclude yourself from the Class. To exclude
yourself, you must send a letter by first-class mail stating that
you "request exclusion from the Class in In re American Realty
Capital Properties, Inc. Litigation, Civ. Action No.
1:15-MC-00040-AKH (S.D.N.Y.)." Your request must: (i) state the
name, address, and telephone number of the person or entity
requesting exclusion; (ii) identify the number of shares or units
of ARCP Securities purchased or acquired and/or sold during the
Class Period; and (iii) be signed by the person or entity
requesting exclusion or an authorized representative. You must mail
your exclusion request, postmarked by no later than October 28,
2019, to: ARCP Securities Litigation, Notice Administrator, c/o
Gilardi & Co. LLC, 3301 Kerner Blvd, San Rafael, CA 94901. You may
contact the Administrator or Class Counsel, Robbins Geller Rudman &
Dowd LLP, with any questions. (Visit
www.ARCPSecuritiesLitigation.com; www.rgrdlaw.com.) Class members
are represented by Class Counsel. You will not be personally
responsible for their fees and expenses. If the case results in a
recovery, however, Class Counsel will apply to the Court to be paid
some portion of whatever is recovered for the Class. You may also
hire your own attorney, at your own expense.
For a full description of the Litigation, including identification
of the Class Representatives, Defendants, Class Counsel, and the
allegations of securities fraud, as well as related Court
documents, please visit www.ARCPSecuritiesLitigation.com. Please
keep your investment records and any other documents concerning
ARCP Securities purchased during the Class Period you may have, and
notify the Administrator of any change in address.
Do not contact the Court with questions. [GN]
AMERICOLLECT, INC: Placeholder Bid for Class Certification Filed
----------------------------------------------------------------
In the class action lawsuit captioned as BILLY JOE BENNETT,
individually and on behalf of all others similarly situated, the
Plaintiffs, v. AMERICOLLECT, INC., the Defendant, Case No.
2:19-cv-01215-DEJ (E.D. Wisc.), the Plaintiff asks the Court for an
order certifying a class, appointing the Plaintiff as class
representative, and appointing Ademi & O'Reilly, LLP as Class
Counsel, and for such other and further relief as the Court may
deem appropriate.
The Plaintiff further asks that the Court stay this class
certification motion until an amended motion for class
certification is filed, and that the Court grant the parties relief
from the local rules' automatic briefing schedule and requirement
that Plaintiffs file a brief and supporting documents in support of
this motion.
To avoid the risk of a defendant mooting a putative class
representative's individual stake in the litigation, the Seventh
Circuit instructed plaintiffs to file a certification motion with
the complaint, along with a motion to stay briefing on the
certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896
(7th Cir. 2011), overruled on other grounds, Chapman v. First
Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of
that motion [for class certification] protects a putative class
from attempts to buy off the named plaintiffs."). While the Seventh
Circuit has held that the specific procedure described in
Campbell-Ewald cannot force the individual settlement of a class
representative's claims, the same decision cautions that other
methods may prevent a plaintiff from representing a class. Fulton
Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545-46 (7th Cir.
2017).[CC]
Attorneys for the Plaintiffs are:
Mark A. Eldridge, Esq.
John D. Blythin, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
AQUESTIVE THERAPEUTICS: Summary Judgment Motions Due Sept. 26
-------------------------------------------------------------
Aquestive Therapeutics, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 6, 2019, for
the quarterly period ended June 30, 2019, that summary judgement
motions and Daubert motions relating to expert witnesses in
Suboxone MDL No. 2445, are due on September 26, 2019.
On September 22, 2016, forty-one states and the District of
Columbia, or the States, brought suit against Indivior and the
company in the U.S. District Court for the Eastern District of
Pennsylvania, alleging violations of federal and state antitrust
statutes and state unfair trade and consumer protection laws
relating to Indivior's launch of Suboxone Sublingual Film in 2010
and seeking an injunction, civil penalties, and disgorgement.
After filing, the case was consolidated for pre-trial purposes with
the In re Suboxone (Buprenorphine Hydrochloride and Naloxone)
Antitrust Litigation, MDL No. 2445, or the Suboxone MDL, a
multidistrict litigation relating to putative class actions on
behalf of various private plaintiffs against Indivior relating to
its launch of Suboxone Sublingual Film.
While the Company was not named as a defendant in the original
Suboxone MDL cases, the action brought by the States alleges that
the Company participated in an antitrust conspiracy with Indivior
in connection with Indivior's launch of Suboxone Sublingual Film
and engaged in related conduct in violation of federal and state
antitrust law.
The Company moved to dismiss the States' conspiracy claims, but by
order dated October 30, 2017, the Court denied this motion to
dismiss. An answer denying the States' claims was filed on November
20, 2017.
The fact discovery period closed on July 27, 2018, but the parties
agreed to conduct certain fact depositions in August 2018.
The expert discovery phase closed May 30, 2019, but additional
reports and depositions are being conducted through August 1, 2019.
Summary judgement motions and Daubert motions relating to expert
witnesses are due on September 26, 2019.
Aquestive said, "At this time, management cannot determine or
predict the ultimate outcome of this proceeding or provide a
reasonable estimate, or range of estimates, of the possible outcome
or loss, if any, in this matter.
Aquestive Therapeutics, Inc., a specialty pharmaceutical company,
focuses on identifying, developing, and commercializing various
products to address unmet medical needs. The Company markets
Sympazan, an oral soluble film formulation of clobazam for the
treatment of lennox-gastaut syndrome; Suboxone, a sublingual film
formulation of buprenorphine and naloxone for the treatment of
opioid dependence; and Zuplenz, an oral soluble film formulation of
ondansetron for the treatment of nausea and vomiting associated
with chemotherapy and post-operative recovery in the United States
and internationally. Aquestive Therapeutics, Inc. was founded in
2004 and is headquartered in Warren, New Jersey.
ARCIMOTO INC: Still Awaiting Court OK on Class Action Settlement
-----------------------------------------------------------------
Arcimoto, Inc. disclosed in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2019, that the settlement agreement reached by the parties
in the consolidated Switzer and Mendelson suits remains subject to
court approval.
On March 11, 2018, the Company was served with a lawsuit entitled
John R Switzer vs W.R. Hambrecht & Co. LLC et al., Case Number:
CGC-18-564904, filed in San Francisco County Superior Court in the
State of California.
In this action, the Company was named as a defendant along with
five individuals who were directors and/or executive officers at
the time of the completion of the Company's Regulation A offering
on September 21, 2017. The action was styled as a putative class
action, alleged on behalf of all those who purchased the Company's
common stock in its Regulation A offering. The plaintiff alleged
violations of Section 12(a)(2) and Section 15 of the Securities Act
of 1933, as amended, and is seeking damages in an unspecified
amount to be proven at trial.
In addition, on March 28, 2018, the Company was served with another
lawsuit entitled Jay Mendelson v. Arcimoto, Inc. et al., Case
Number CGC-18-565324, filed in San Francisco County Superior Court
in the State of California. In that action, which was styled as a
putative class action, the Company was also named as a defendant
along with the same individuals who were directors and/or executive
officers at the time of the completion of the Company's Regulation
A offering on September 21, 2017.
The allegations and claims made in the Mendelson action were
substantially similar to those of the Switzer action and the
plaintiff was also seeking damages in an unspecified amount to be
proven at trial. The two actions were consolidated into a single
lawsuit on May 28, 2018. The Company believes that the
consolidated lawsuit was without merit and vigorously defended
itself against these claims in court.
On July 30, 2018, counsel for the Company filed a demurrer to the
consolidated complaint, seeking its dismissal. By Order dated
September 19, 2018, the San Francisco Court sustained in part and
denied in part the demurrer.
On September 28, 2018, plaintiffs in that case filed a First
Amended Consolidated Complaint. The Company denied the substantive
claims and allegations made in that amended pleading and continued
to assert a vigorous defense.
On January 25, 2019, the parties reached a settlement agreement in
the consolidated cases, subject to court approval. The parties to
the lawsuit have filed a motion with the court seeking approval of
the settlement agreement, which motion is currently pending. By
its terms, the settlement agreement resolves this litigation in its
entirety.
Arcimoto, Inc. designs, develops, manufactures, and sells
three-wheeled electric vehicles. The company was formerly known as
WTP Inc and changed its name to Arcimoto, Inc. in December 2011.
Arcimoto, Inc. was founded in 2007 and is headquartered in Eugene,
Oregon.
ASHLEY FURNITURE: Final Judgment Entered in Atchison Labor Suit
---------------------------------------------------------------
Judge John A. Kronstadt of the U.S. District Court for the Central
District of California has entered Final Judgment in the case, ALAN
ATCHISON, on behalf of himself, all others similarly situated,
Plaintiff, v. ASHLEY FURNITURE INDUSTRIES, INC., and DOES 1 through
100, inclusive, Defendants. JAMES BLAIR, on behalf of himself and
all others similarly situated, Plaintiff, v. ASHLEY DISTRIBUTION
SERVICES, INC., and DOES 1 through 50 inclusive, Defendants, Lead
Case No. ED CV17-00528 JAK (SPx), Consolidated with Case No. ED
CV17-01427 JAK (SPx) (C.D. Cal.).
On June 24, 2019, a minute order was entered granting the
Plaintiffs' Motion for Final Approval of Class Action Settlement,
Award of Attorneys' Fees, Costs, Class Representative
Enhancement/General Release Payments, Settlement Administration
Expenses, and Entering Judgment. That order followed (i) an Order
Re Motion for Preliminary Approval of Class Action Settlement; and
(ii) the Class Action Settlement Agreement and Stipulation. On
June 27, 2019, the Court issued a separate and more detailed order
granting the Plaintiffs' Motion.
Pursuant to the Preliminary Approval Order, the Notice of Class
Action Settlement was mailed to all members of the Class by
first-class U.S. mail. In response to the Notice, no members of
the Class filed a written Objection to the Settlement, no Class
Members stated an intention to appear at the final approval
hearing, and one Class Member requested exclusion from the
Settlement. Of the 317 Class Members, 316 are Settlement Class
Members and will receive settlement payments.
The notice procedure afforded adequate protections to the Class
Members and provides the basis for the Court to make an informed
decision regarding approval of the Settlement based on the Class
Members' response. The Class Notice provided in conjunction with
preliminary approval was the best notice practicable, which
satisfied the requirements of law and due process.
The terms of the Settlement Agreement are fair, reasonable and
adequate to the Class and to each Class Member and that the
settlement is ordered finally approved, and that all terms and
provisions of the Settlement Agreement should be and are ordered to
be consummated.
The Court has certified a Class, for purposes of settlement only,
defined as follows all persons who are employed or have been
employed by Defendant ADS in the State of California as truck
drivers during the Class Period in the position of California Less
than Load Drivers ("CA LTL"), California Point to Point Drivers
("CA PTP"), California Yard Drivers, and/or California Shuttle
Drivers. `Class Members' additionally includes non-California
Drivers ("Non-CA Driver") to the extent that the Defendants'
records show that the Non-CA Driver made at least 1 trip into
California during the Class Period. The Class Period is from Feb.
8, 2013 through Aug. 23, 2018.
Pursuant to the Class Action Fairness Act, the Defendant mailed
notice of the proposed settlement to the Attorney General of the
United States and the appropriate state official in each state in
which a Class Member reportedly resides according to the
Defendant's records on April 5, 2018. Accordingly, the
requirements under CAFA to provide notice to the appropriate
federal and state officials have been satisfied.
David Mara and Jamie Serb of Mara Law Firm, PC and Norman
Blumenthal, Kyle Nordrehaug, and Aparajit Bhowmik from Blumenthal
Nordrehaug Bhowmik De Blouw LLP are the Class Counsel in the
action. Plaintiffs Alan Atchison and James Blair are the Class
Representatives in the action.
The individual settlement payments provided for by the terms of the
Settlement Agreement to be paid to Settlement Class Members are
fair and reasonable. Final approval of these payments has been
made, and payments will be made to the Settlement Class Members in
accordance with the terms of the Settlement.
The payment to the California Labor and Workforce Development
Agency of $7,500 as its share of the settlement of civil penalties,
in this case, is fair, reasonable, and appropriate. Final approval
as to that amount is approved and will be paid in accordance with
the Settlement.
By the Judgment, the Named Plaintiffs will release, relinquish, and
discharge, and each of the Settlement Class Members will be deemed
to have, and by operation of the Judgment will have, fully,
finally, and forever released, relinquished, and discharged all
Settled Claims and PAGA Settled Claims, as defined in the
Settlement Agreement.
The Class Representative enhancement and general release payments
in the sum of $5,000 ($2,500 as an enhancement and $2,500 as
consideration for a general release payment) to each
Plaintiff/Class Representative Alan Atchison and James Blair is
fair and reasonable. The Administrator will make this payment to
the Plaintiffs/Class Representatives in accordance with the terms
of the Settlement Agreement.
The payment to be paid to the Settlement Administrator, ILYM Group,
Inc. in the sum of $7,500 for its fee and expenses incurred is fair
and reasonable. The Administrator will make the payment to itself
in accordance with the terms of the Settlement Agreement.
Pursuant to the terms of the Settlement, and the authorities,
evidence, and argument submitted by the Class Counsel, the Class
Counsell is awarded attorney's fees in the sum of $212,500 (25% of
the Gross Settlement Amount) and litigation costs of $14,846.10.
Such amounts are fair and reasonable. The Settlement Administrator
will make these payments in accordance with the terms of the
Settlement Agreement.
Neither Defendant Ashley Distribution Services, Ltd. ("ADS") and
Ashley Furniture Industries, Inc. ("Defendant") nor any Released
Parties will have any further liability for costs, expenses,
interest, attorneys' fees, or for any other charge, expense, or
liability, except as provided for by the Settlement Agreement.
The Parties will bear their own costs and attorney's fees except as
otherwise provided for by the Settlement Agreement and the Court's
Order Granting Final Approval.
Upon entry of the Final Judgment, the Action is dismissed with
prejudice as against the Defendants.
A full-text copy of the Court's July 17, 2019 Judgment is available
at https://is.gd/aUFNeR from Leagle.com.
Alan Atchison, on behalf of himself, all others similarly situated,
and on behalf of the general public, Plaintiff, represented by
David Thomas Mara -- dmara@turleylawfirm.com -- Mara Law Firm PC,
Jamie K. Serb -- jserb@turleylawfirm.com -- Mara Law Firm PC &
Katharine Haley McCall, Mara Law Firm APLC.
James Blair, on behalf of himself, all others similarly situated,
and on behalf of the general public, Plaintiff, represented by
Aparajit Bhowmik, Blumenthal Nordrehaug and Bhowmik LLP, Kyle R.
Nordrehaug, Blumenthal Nordrehaug and Bhowmik, Norman B.
Blumenthal, Blumenthal Nordrehaug and Bhowmik LLP, Ruchira Piya
Mukherjee, Blumenthal Nordrehaug and Bhowmik LLP, Victoria Bree
Rivapalacio, Blumenthal Nordrehaug and Bhowmik LLP & Jamie K. Serb,
Mara Law Firm PC.
Ashley Furniture Industries, Inc., Defendant, represented by
Christina M. Cila -- ccila@littler.com -- Littler Mendelson PC.
Ashley Distribution Services, Ltd., sued herein erroneously as
Ashley Furniture Industries, Inc., Defendant, represented by
Christina M. Cila, Littler Mendelson PC, John Kevin Lilly --
klilly@littler.com -- Littler Mendelson PC & James E. Hart --
jhart@littler.com -- Littler Mendelson PC.
AVANOS MEDICAL: Appeal in Bahamas Surgery Case Still Pending
------------------------------------------------------------
A challenge before the U.S. Court of Appeals for the Ninth Circuit
to the decision in a class action lawsuit initiated by Bahamas
Surgery Center, LLC, remains pending, Avanos Medical, Inc. said in
its Form 10-Q Report filed with the Securities and Exchange
Commission on August 6, 2019, for the quarterly period ended June
30, 2019.
Avanos Medical had an Indemnification Obligation for the matter
styled Bahamas Surgery Center, LLC v. Kimberly-Clark Corporation
and Halyard Health, Inc., No. 2:14-cv-08390-DMG-SH (C.D. Cal.)
("Bahamas"), filed on October 29, 2014.
In that case, the plaintiff brought a putative class action
asserting claims for common law fraud (affirmative
misrepresentation and fraudulent concealment) and violation of
California's Unfair Competition Law ("UCL") in connection with our
marketing and sale of MicroCool surgical gowns.
On April 7, 2017, a jury returned a verdict for the plaintiff,
finding that Kimberly-Clark was liable for $3.9 million in
compensatory damages (not including prejudgment interest) and
$350.0 million in punitive damages, and that Avanos was liable for
$0.3 million in compensatory damages (not including prejudgment
interest) and $100.0 million in punitive damages.
Subsequently, the court also ruled on the plaintiff's UCL claim and
request for injunctive relief. The court found in favor of the
plaintiff on the UCL claim but denied the plaintiff’s request for
restitution.
The court also denied the plaintiff's request for injunctive
relief.
On May 25, 2017, the company filed three post-trial motions: a
renewed motion for judgment as a matter of law; a motion to
decertify the class; and a motion for new trial, remittitur, or
amendment of the judgment. On March 30, 2018, the court ruled on
the post-trial motions.
The court denied all three, except it granted in part the motion to
reduce the award of punitive damages to a 5 to 1 ratio with
compensatory damages.
On April 11, 2018, the court issued an Amended Judgment in favor of
the plaintiff and against the Company and Kimberly-Clark.
"The judgment against us is $0.3 million in compensatory damages
and pre-judgment interest and $1.3 million in punitive damages. The
judgment against Kimberly-Clark is $3.9 million in compensatory
damages, $1.3 million in pre-judgment interest, and $19.4 million
in punitive damages," the Company said.
On April 12, 2018, the company filed a notice of appeal to the
Ninth Circuit Court of Appeals.
Avanos Medical said, "We intend to continue our vigorous defense of
the Bahamas matter."
Avanos Medical, Inc. operates as a medical technology company that
focuses on delivering medical device solutions to improve patients'
quality of life worldwide. Avanos Medical, Inc. was incorporated in
2014 and is headquartered in Alpharetta, Georgia.
BELNICK LLC: Diaz Alleges Violation under Disabilities Act
----------------------------------------------------------
Belnick, LLC is facing a class action lawsuit filed pursuant to the
Americans with Disabilities Act. The case is styled as Edwin Diaz,
on behalf of himself and all others similarly situated, Plaintiff
v. Belnick, LLC, Defendant, Case No. 1:19-cv-07855 (S.D. N.Y.,
Aug. 21, 2019).
Belnick, LLC, doing business as BizChair.com, retails commercial
and residential furniture online. The Company offers chairs,
industrial seating, stools, chair mats, and other furniture.
BizChair.com serves customers in the State of Georgia.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
BLOOM ENERGY: Discovery in Lincolnshire Police Suit Still Stayed
----------------------------------------------------------------
Bloom Energy Corporation disclosed in its Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended June 30, 2019, that discovery in the class action suit
initiated by Lincolnshire Police Pension Fund remains stayed.
In March of 2019, the Lincolnshire Police Pension fund filed a
class action complaint in the Superior Court of the State of
California, County of Santa Clara, against the Company, certain
members of its senior management, certain of its directors and the
underwriters in its initial public offering alleging violations
under Sections 11 and 15 of the Securities Act of 1933, as amended,
for alleged misleading statements or omissions in its Form S-1
Registration Statement filed with the Securities and Exchange
Commission in connection with its July 25, 2018 initial public
offering. Two related class action cases were subsequently filed
in the Santa Clara County Superior Court against the same
defendants containing the same allegations; Rodriquez vs Bloom
Energy et al was filed on April 22, 2019 and Evans vs Bloom Energy
et al. was filed on May 7, 2019. These cases have been
consolidated and a case management schedule has been set, with
Plaintiffs' Consolidated Amended Complaint due to be filed with the
court by October 14, 2019. Discovery is currently stayed.
Bloom Energy Corporation designs, manufactures, and sells
solid-oxide fuel cell systems for on-site power generation. The
company was formerly known as Ion America Corp. and changed its
name to Bloom Energy Corporation in September 2006. Bloom Energy
Corporation was founded in 2001 and is headquartered in San Jose,
California.
BOSTON, MA: Class Action Over Immigration Bond Hearings Okayed
--------------------------------------------------------------
Steph Solis, writing for MassLive, reports that a complaint
alleging that detainees are treated unfairly during bond hearings
in immigration court can move forward as a class-action lawsuit, a
federal judge ruled on Aug. 6.
Judge Patti Saris certified the class of detainees in her order on
Aug. 6 following a class-action lawsuit filed on behalf of three
New England immigrants, including a Brockton father of three, who
were denied bond in immigration detention hearings. Saris
identified two classes that are affected by the allegations: those
who have had a bond hearing in Boston Immigration Court and those
who haven't.
Both classes would be affected by the request for relief under the
lawsuit, according to the order.
Saris said during an Aug. 5 hearing in Boston federal court that
she is likely to certify the class, a routine but important step
that determines whether a class-action lawsuit can move forward.
She also expressed concerns that any ruling that comes out of her
courtroom wouldn't be heeded by immigration judges, mentioning
previous rules of hers that went ignored.
"I'm worried that the court is just being ignored, not just me but
other judges," she said, noting that she wants to move the case up
to the First Circuit Court of Appeals. "That is my concern, which
is why I want to move it along quickly."
Attorneys with Boston law firm Mintz Levin and the American Civil
Liberties Union of Massachusetts filed the lawsuit in June alleging
that immigration judges had put the onus on the three detainees to
prove they are not a flight risk or a threat to public safety -- a
burden that is typically placed on the government.
Attorneys wrote that as a result of the "flawed" detention
hearings, the plaintiffs spent three to six months in immigrant
detention.
The plaintiffs are Gilberto Pereira Brito, a Brockton father of
three; Florentin Avila Lucas, a New Hampshire farmer; and Jacky
Celicourt, a New Hampshire resident who fled political violence in
Haiti.
Pereira Brito's wife, a U.S. citizen, had filed a petition on his
behalf of an immigrant visa based on their marriage, according to
court records. The petition was approved in February 2018.
Despite the petition, Immigration and Customs Enforcement arrested
Pereira Brito in his home because he had an outstanding removal
order. ICE reopened his deportation proceedings due to lack of
adequate notice of a 2005 removal hearing, which means that Pereira
Brito needs to apply for cancelation of removal. He plans to file
that application and continue to pursue a green card through his
wife.
Pereira Brito is the primary breadwinner of his family as his wife
has a disability that prevents her from working, according to court
documents. [GN]
BRE SELECT: Final Approval Hearing for Battaglia Pact Set for Nov.6
-------------------------------------------------------------------
The Final Approval Hearing on the settlement of the case styled,
Battaglia v. BRE Select Hotels Corp., Civil Action No. 17-cv-01046,
has been set for November 6, 2019, according to BRE Select Hotels
Corp.'s Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2019.
The Company, as the successor to Apple Six, is subject to claims
for alleged acts of Apple Six that occurred prior to a merger
transaction.
On February 24, 2017, a putative class action, captioned Wilchfort
v. Knight, et al., Civil Action No. 17-cv-01046 (E.D.N.Y.), was
filed in the United States District Court for the Eastern District
of New York against BRE Select Hotels Corp, as
successor-in-interest to Apple REIT Six, Inc., Apple Hospitality
REIT, Inc., Apple REIT Seven, Inc., Apple REIT Eight, Inc.
(together with Apple REIT Six, Inc. and Apple REIT Seven, Inc., the
"Apple REITs"), certain of the Apple REITs' directors, officers and
advisors, and Apple Fund Management, LLC.
Plaintiff seeks to represent a class of all persons and entities
who elected to participate in Apple REITs' Dividend Reinvestment
Plans ("DRIPs") between July 17, 2007 and the later of the
termination and/or suspension of the respective DRIPs or February
12, 2014.
The complaint alleges, among other things, that the prices at which
plaintiff and the purported class members purchased additional
shares through the DRIPs were artificially inflated and not
indicative of the true value of units in the Apple REITs.
Plaintiff asserts claims for breach of contract, tortious
interference with contract and tortious interference with business
expectancy and breach of implied duty of good faith and fair
dealing and seeks, among other things, damages and other costs and
expenses.
On March 30, 2018, the court granted in part and denied in part the
Company's motion to dismiss and, on April 13, 2018, plaintiffs
filed an amended complaint, captioned Wilchfort et al. v. BRE
Select Hotels Corp., Civil Action No. 17-cv-1046 (E.D.N.Y.).
On May 31, 2018, plaintiff filed a Second Amended Class Action
Complaint, captioned Battaglia v. BRE Select Hotels Corp., Civil
Action No. 17-cv-01046 (E.D.N.Y.), which, among other things,
narrowed the putative class period to February 24, 2011 through
November 29, 2012.
On June 4, 2018, plaintiff filed a motion for class certification.
On June 27, 2018, the Company filed an Answer to the Second Amended
Class Action Complaint.
On March 1, 2019, the parties executed a settlement agreement to
resolve all of plaintiff's claims without any admission of
wrongdoing for US$3.75 million. Also, on March 1, 2019, the
plaintiff filed a motion for preliminary approval of the settlement
agreement.
On July 16, 2019, the Court granted plaintiff's motion for
preliminary approval of the settlement agreement and scheduled the
Final Approval Hearing for November 6, 2019.
The Company said, "The settlement agreement is also subject to
final approval by the court, and there can be no assurance that the
court will approve such settlement."
As of June 30, 2019 and December 31, 2018, the Company had fully
reserved for this settlement amount of US$3.75 million in accounts
payable, accrued expenses, and other liabilities. The Company paid
the settlement amount into an escrow account in August 2019.
BRE Select Hotels Corp. is a non-listed real estate investment
trust (REIT) focused on the ownership of upscale, extended-stay and
select-service hotels. The company's hotels operate under the
Homewood Suites by Hilton, Hilton Garden Inn, Hampton Inn, Hampton
Inn & Suites, Courtyard by Marriott, Fairfield Inn by Marriott,
Residence Inn by Marriott, SpringHill Suites by Marriott,
TownePlace Suites by Marriott and Marriott, brands. The company is
based in New York.
BRG SPORTS: Averts Ex-Football Players' Helmet Class Action
-----------------------------------------------------------
Dan Churney, writing for Cook County Record, reports that a Chicago
federal judge has sidelined an effort by a group of former football
players to pursue a suit as a class action against the maker of
allegedly unsafe helmets, finding a class action would present
"enormous manageability problems."
The ruling was issued Aug. 1 by Judge Matthew Kennelly in U.S.
District Court for the Northern District of Illinois. The decision
favored BRG Sports in a suit against it by 16 former high school
and college football players.
BRG and its subsidiary, Riddell Sports Group, both based in
suburban Des Plaines, manufacture Riddell brand football headgear.
Riddell has been the market leader in helmets since at least the
1970s, having developed the modern football helmet, according to
court papers.
The players filed last autumn for a class action. They alleged BRG
did not improve its helmets as awareness emerged in recent years of
football-related head injuries, although improvements would have
been cost-effective and technologically feasible. BRG also did not
allegedly provide sufficient warning of the risk of wearing its
headgear.
The players claim they were injured wearing Riddell products,
because the helmets offered inadequate protection. They sought a
class action on behalf of themselves and other players, who wore
Riddell helmets while taking part in high school and college
football between 1975 and the present in 18 states, mostly in the
South; Illinois was not one of the states.
Judge Kennelly agreed with BRG that the case is too complicated to
allow for class action.
"This suit is primarily about personal injuries and, as a result,
is brimming with individualized questions of causation and damages
because members of the plaintiff class indisputably 'wore different
helmets that were designed, tested, engineered, and marketed
differently,'" Kennelly concluded, quoting from BRG's argument.
Kennelly went on, noting each plaintiff "used different Riddell
helmets for different lengths of time, at various levels of play
and in different positions on the field, sustaining different
numbers of concussions and other injuries, and receiving varying
medical care."
Kennelly said a class action would be cumbersome, noting among the
16 plaintiffs alone, who represent a "tiny" portion of the
potentially hundreds of thousands of class members, the alleged
symptoms of injuries include combinations of headaches, dizziness,
dementia, emotional instability, memory loss, depression, motor
impairment, impulsiveness, aggressiveness, attention problems and
other impairments.
"If that were not enough, there are seemingly limitless confounding
causal mechanisms and possible extenuating circumstances, including
'family and medical history, age, diet, and lifestyle,' which 'may
affect each putative plaintiff's response to head-related
injuries,'" Kennelly added, partly quoting a 2016 federal court
opinion.
In Kennelly's view, the case is too convoluted to be "amenable to
collective resolution" and presents "enormous manageability
problems" that "utterly destroy the plaintiffs' ability" to pursue
uniform action.
The former football players are represented by the Chicago firm of
Edelson PC.
BRG Sports is represented by Bowman & Brooke, of Minneapolis,
Minn., and Donahue, Brown, Mathewson & Smyth, of Chicago. [GN]
BUSINESS INFORMATION: White Suit Moved to E.D. Pennsylvania
-----------------------------------------------------------
The case, VARKENO DELORENZO WHITE, INDIVIDUALLY AND ON BEHALF OF
ALL OTHERS SIMILARLY SITUATED, the Plaintiff, vs. BUSINESS
INFORMATION GROUP, INC., the Defendant, Case No. 19005063, was
removed from the Philadelphia Court of Common Pleas, to the U.S.
District Court for the Eastern District of Pennsylvania
(Philadelphia) on Aug. 20, 2019. The Eastern District of
Pennsylvania Court Clerk assigned Case No. 2:19-cv-03750-JS to the
proceeding. The case is assigned Hon. Judge Juan R. Sanchez. The
suit alleges violation of Fair Credit Reporting Act.
As a global leader in applicant screening, BIG has provided
services specifically tailored to the financial services
industry.[BN]
Attorneys for the Plaintiff are:
Shanon J. Carson, Esq.
BERGER MONTAGUE PC
1818 Market St., Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-4656
Facsimile: (215) 875-4674
E-mail: scarson@bm.net
Attorneys for the Defendant are:
William J. Simmons, Esq.
LITTLER MENDELSON, P.C.
Three Parkway
1601 Cherry Street, Suite 1400
Philadelphia, PA 19102-1321
Telephone: (267) 402-3047
E-mail: wsimmons@littler.com
CAKE RULES EVERYTHING: Olsen Files Class Suit under ADA
-------------------------------------------------------
Cake Rules Everything Around Me, LLC is facing a class action
lawsuit filed pursuant to the Americans with Disabilities Act. The
case is styled as Thomas J. Olsen, individually and on behalf of
all other persons similarly situated, Plaintiff v. Cake Rules
Everything Around Me, LLC, Defendant, Case No. 1:19-cv-04809 (E.D.
N.Y., Aug. 21, 2019).
Cake Rules Everything Around Me, LLC is an Online and brick and
mortar retail store featuring cakes, confectionery made of sugar,
candy, bakeware and apparel.[BN]
The Plaintiff is represented by:
Douglas Brian Lipsky, Esq.
Lipsky Lowe LLP
630 Third Avenue
Fifth Floor
New York, NY 10017
Tel: (212) 392-4772
Fax: (212) 444-1030
Email: doug@lipskylowe.com
CANADA: Yukon 60s Scoop Suit No Longer Class Action
---------------------------------------------------
Jackie Hong, writing for Yukon-News, reports that a Yukon lawsuit
over the Sixties Scoop is no longer being pursued as a
class-action.
Instead, Tr'ondek Hwech'in citizens Charles Eshleman and Christine
Mullin submitted an amended statement of claim to the Yukon Supreme
Court earlier this month outlining alleged details specific to each
of their lives and individual experiences of being removed from
their homes as children.
The pair had originally filed their lawsuit against the Attorney
General of Canada and the Yukon Commissioner in October 2017. It
was framed as a class-action on behalf of "all other First Nation,
Inuit or Métis persons who were removed from their families or
communities in the Yukon Territory by or on behalf of the
Government of Canada or the Commissioner of Yukon during the period
1950 to 1993 and as a result lost their language and cultural
identity and suffered the Rights Abuses and Individual Abuses
described herein."
However, in a July 30 interview, lawyer Dan Shier said Eshleman and
Mullin have since decided to pursue the legal action as
co-plaintiffs instead of as a class action in order to allow for a
faster resolution.
"A class action would take a very long time to arrive at a
conclusion, and in order to expedite the case, proceeding on a
test-case basis makes the most sense," he said.
The case has not yet gone to trial. [GN]
CAPITAL ONE: Card Holders Sue Over Data Breach
----------------------------------------------
Leticia Carter, Steven Tellander, Joshua Zipperman, Joalla Rivera,
Salvador Gomez Corona, Donald Osborn, Julia and John Gordon, and
Gina Valvo, individually and on behalf of all others similarly
situated, Plaintiff, v. Capital One Financial Corporation, Capital
One Bank (USA), N.A., and Capital One, N.A., Defendants, Case No.
19-cv-00557, (E.D. Va., August 5, 2019), seeks damages, attorneys'
fees and costs, and such other and further relief resulting from
breach of contract, negligence, invasion of privacy, deceit by
concealment and violations of various state consumer protection
acts.
On July 29, 2019, it was reported that Capital One experienced an
unauthorized access by a hacker who obtained certain types of
personal information relating to people who had applied for credit
card products. Plaintiffs applied for and/or used a Capital One
credit card at some time.
Capital One is a bank holding company and financial institution
that offers credit cards to consumer applicants throughout the
United States. [BN]
Plaintiff is represented by:
Dale W. Pittman, Esq.
THE LAW OFFICE OF DALE W. PITTMAN, P.C.
The Eliza Spotswood House
112-A West Tabb Street
Petersburg, VA 23803-3212
Tel: (804) 861-6000
Fax: (804) 861-3368
Email: dale@pittmanlawoffice.com
- and -
Ivy T. Ngo, Esq.
Joshua E. Moyer, Esq.
14426 E. Evans Avenue
Aurora, CO 80014
Telephone: (303) 757-3300
Facsimile: (720) 213-5131
Email: ngoi@fdazar.com
moyerj@fdazar.com
- and -
Mark A. Ozzello, Esq.
Tarek H. Zohdy, Esq.
Cody R. Padgett, Esq.
Trisha K. Monesi, Esq.
CAPSTONE LAW APC
1875 Century Park East, Suite 1000
Los Angeles, CA 90067
Telephone: (310) 556-6824
Facsimile: (310) 943-0396
Email: Mark.Ozzello@capstonelawyers.com
Tarek.Zohdy@capstonelawyers.com
Cody.Padgett@capstonelawyers.com
Trisha.Monesi@capstonelawyers.com
- and -
Karen H. Riebel, Esq.
Kate M. Baxter-Kauf, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401-2159
Telephone: (612) 596-4097
Facsimile: (612) 339-0981
Email: khriebel@locklaw.com
kmbaxter-kauf@locklaw.com
CAPITAL ONE: Faces Desoer Suit Over Data Breach
-----------------------------------------------
Michele Desoer, individually and on behalf of all others similarly
situated, Plaintiff, v. Capital One Financial Corporation and
Amazon Web Services, Inc., Defendants, Case No. 19-cv-01223, (W.D.
Wash., August 5, 2019), seeks damages, attorneys' fees and costs,
and such other and further relief resulting from breach of
contract, negligence, unjust enrichment and violations of and
violations of various state consumer protection acts.
On July 29, 2019, it was reported that Capital One experienced an
unauthorized access by a former Amazon Web Services employee who
obtained certain types of personal information relating to people
who had applied for credit card products. Plaintiff applied for
and/or used a Capital One credit card at some time.
Capital One is a bank holding company and financial institution
that offers credit cards to consumer applicants throughout the
United States. Amazon Web Services is a cloud platform with data
centers globally located. [BN]
Plaintiff is represented by:
Beth E. Terrell, Esq.
Jennifer Murray, Esq.
TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, WA 98103-8869
Telephone: (206) 816-6603
Facsimile: (206) 350-3528
Email: bterrell@terrellmarshall.com
jmurray@terrellmarshall.com
- and -
Laurence D. King, Esq.
Matthew B. George, Esq.
Mario M. Choi, Esq.
KAPLAN FOX & KILSHEIMER LLP
350 Sansome Street, Suite 400
San Francisco, CA 94104
Telephone: (415) 772-4700
Facsimile: (415) 772-4707
Email: lking@kaplanfox.com
mgeorge@kaplanfox.com
mchoi@kaplanfox.com
- and -
Marc A. Wites, Esq.
WITES LAW FIRM
4400 North Federal Highway
Lighthouse Point, FL 33064
Telephone: (954) 933-4400
Facsimile: (954) 354-0205
Email: mwites@witeslaw.com
CAPSTONE TURBINE: Final Settlement Approval Hearing on Nov. 15
--------------------------------------------------------------
Capstone Turbine Corporation said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 8, 2019, for
the quarterly period ended June 30, 2019, that a final settlement
approval hearing has been set for November 15, 2019 in the
consolidated class action suit in California.
Two putative securities class action complaints were filed against
the Company and certain of its current and former officers in the
United States District Court for the Central District of California
under the following captions: David Kinney, etc. v. Capstone
Turbine, et al., No. 2:15-CV-08914 on November 16, 2015 (the
"Kinney Complaint") and Kevin M. Grooms, etc. v. Capstone Turbine,
et al., No. 2:15-CV-09155 on November 25, 2015 (the "Grooms
Complaint").
The putative class in the Kinney Complaint is comprised of all
purchasers of the Company's securities between November 7, 2013 and
November 5, 2015. The Kinney Complaint alleges material
misrepresentations and omissions in public statements regarding BPC
Engineering (BPC) and the likelihood that BPC would not be able to
fulfill many legal and financial obligations to the Company.
The Kinney Complaint also alleges that the Company's financial
statements were not appropriately adjusted in light of this
situation and were not maintained in accordance with the generally
accepted accounting principles (GAAP), and that the Company lacked
adequate internal controls over accounting. The Kinney Complaint
alleges that these public statements and accounting irregularities
constituted violations by all named defendants of Section 10(b) of
the Exchange Act, and Rule 10b-5 thereunder, as well as violations
of Section 20(a) of the Exchange Act by the individual defendants.
The Grooms Complaint makes allegations and claims that are
substantially identical to those in the Kinney Complaint, and both
complaints seek compensatory damages of an undisclosed amount.
On January 16, 2016, several shareholders filed motions to
consolidate the Kinney and Grooms actions and for appointment as
lead plaintiff. On February 29, 2016, the Court granted the motions
to consolidate, and appointed a lead plaintiff.
On May 6, 2016, a Consolidated Amended Complaint with allegations
and claims substantially identical to those of the Kinney Complaint
was filed in the consolidated action. The putative class period in
the Consolidated Amended Complaint is June 12, 2014 to November 5,
2015.
Defendants filed a motion to dismiss the Consolidated Amended
Complaint on June 17, 2016. On March 10, 2017, the Court issued an
order granting Defendants' motion to dismiss in its entirety with
leave to amend. Plaintiffs filed an amended complaint on April 28,
2017. On February 9, 2018, the Court issued an Order denying
Defendants' motion to dismiss. On March 30, 2018, Defendants filed
an answer to the Consolidated Amended Complaint.
On May 17, 2018, the Court issued a scheduling order setting a
trial date of March 17, 2020. On June 26, 2018, the Court entered
an order vacating all deadlines through the end of October 2018 and
temporarily staying formal discovery and other proceedings to allow
the parties time to conduct a mediation.
The parties participated in mediation on September 24, 2018, which
did not result in a settlement.
On November 16, 2018, after further settlement discussions, the
parties advised the Court that they had reached an agreement in
principle to settle the action in its entirety. The agreement in
principle is subject to several conditions, including the execution
of a stipulation of settlement that is satisfactory to all parties,
and preliminary and final approval from the court, among other
things. Plaintiffs filed a motion seeking preliminary approval of
the proposed settlement on April 12, 2019, and filed supplementary
declarations in support of the motion on May 2, 2019.
Preliminary approval of the settlement was granted on May 17, 2019,
with a final settlement approval hearing set for November 15, 2019.
Capstone said, "If the settlement is finalized and approved by the
Court, the Company's insurance carrier will fund the settlement
amount. The Company has not recorded any liability as of June 30,
2019 since any potential loss is not considered material as its
insurance carrier will fund the settlement amount."
Capstone Turbine Corporation develops, manufactures, markets, and
services microturbine technology solutions for use in stationary
distributed power generation applications worldwide. Capstone
Turbine Corporation was founded in 1988 and is headquartered in Van
Nuys, California.
CARBONITE INC: Faces Securities Class Action in Massachusetts
-------------------------------------------------------------
Carbonite, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 6, 2019, for the
quarterly period ended June 30, 2019, that the company has been
named as a defendant in a purported class action suit in the U.S.
District Court for the District of Massachusetts.
On August 1, 2019, a purported stockholder of the Company filed a
purported class action complaint against the Company, its former
Chief Executive Officer and its Chief Financial Officer in the U.S.
District Court for the District of Massachusetts.
The complaint alleges violations of the federal securities laws
under Sections 10(b) and 20(a) of the Securities Exchange Act of
1934, as amended, and Rule 10b-5 promulgated thereunder.
Carbonite said, "We believe that the allegations contained in the
complaint are without merit and intend to defend the case
vigorously. We cannot predict at this point the length of time that
this action will be ongoing or whether it is reasonably possible
that a loss will be incurred."
Carbonite, Inc., incorporated on February 10, 2005, provides data
protection solutions, including cloud, hybrid and on-premise backup
and restore, disaster recovery as a service (DRaaS) and e-mail
archiving. The Company's solutions provide enterprise-grade data
protection and recovery capabilities to its customers. The company
is based in Boston, Massachusetts.
CBS CREDIT UNION: Board Members Sued over $40MM Embezzlement
------------------------------------------------------------
VICTOR M. WEBB, on behalf of himself and all others similarly
situated, the Plaintiff, vs. LYNN ALTMAN, DOUGLAS EDWARDS, MARILYN
FISCHER, ROBERT HAXBY, MARSHA MILLER, YVETTE PAPPALARDO, CLARA
SCHWARTZ, LISA SCHWARTZ, MARIAN TURNBULL, CIMA BAKER-LAWSON, CAROL
WACKEEN, SARAH XU, UNIVERSITY CREDIT UNION, and DOES 1-50, the
Defendants, Case No. 19STCV27832 (Cal. Super., Aug. 9, 2019), is
brought by Plaintiff Victor M. Webb, as an individual and on behalf
of a class of similarly situated former members of CBS Employees
Federal Credit Union against the members of its board of directors.
The action arises from the Board's actions and in actions, namely,
the failure of the Board of Directors and the Supervisory Committee
of CBS Employees to exercise reasonable oversight of the Credit
Union's management and allowing former Manager and CEO Edward
Martin Rostohar to embezzle more than $40 million.
The lack of reasonably oversight and negligence of the Board
allowed Rostohar to embezzle enough of the Credit Union's cash to
wipe out the Credit Union to the detriment of Plaintiff and other
members of the Credit Union because it deprived them of over $40
million in value which would have resulted in anticipated benefits
to the Credit Union members/owners such as lower rates on credit
products such as car loans, mortgages and credit cards and
higher-rate savings accounts.
Rostohar pled guilty on or about May 20, 2019, to credit union
fraud in a 20-year embezzlement scheme in which he stole more than
$40 million from CBS Employees to fund his gambling and luxury
lifestyle, destroying the Credit Union in the process, which was
liquidated with just $21 million in assets.
According to his plea agreement, Rostohar used his position as a
manager at the credit union to make online payments from the credit
union to himself or by forging the signature of another credit
union employee on checks made payable to himself. Rostohar also
admitted to submitting credit union checks to make personal credit
card payments.
The blatant scheme was belatedly exposed in March 2019 when a
credit union employee discovered a $35,000 check payable to
Rostohar. This discovery prompted the employee to conduct an audit
which uncovered $3.8 million in checks payable to Roshohar between
the fourteen-month period of January 2018 and March 2019.
Had Defendants exercised reasonable oversight of CBS Employees
management, Rostohar's embezzlement scheme would have been
discovered before he was able to steal more than $40 million from
CBS Employees and cause the Credit Union to be liquidated.
As a result of the liquidation of CBS Employees, Members of CBS
Employees are now members of University Credit Union of Los
Angeles.[BN]
Attorneys for the Plaintiff and the Proposed Class are:
Richard D. McCune, Esq.
Michele M. Vercoski, Esq.
MCCUNE WRIGHT AREVALO, LLP
1 8565 Jamboree Road. Suite 550
Irvine, CA 92612
Telephone: (909) 557-1250
Facsimile: (909) 557-1275
E-mail: rdm@mccunewright.com
CDK GLOBAL: Still Defends AutoLoop Class Action in Illinois
-----------------------------------------------------------
CDK Global, Inc. is still facing a class action suit initiated by
Loop LLC d/b/a AutoLoop, according to the Company's Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended June 30, 2019.
Loop LLC d/b/a AutoLoop ("AutoLoop") brought suit against CDK
Global, LLC on April 9, 2018, in the U.S. District Court for the
Northern District of Illinois, but reserved its rights with respect
to remand to the U.S. District Court for the Western District of
Wisconsin at the conclusion of the MDL proceedings.
On June 5, 2018, AutoLoop amended its complaint to sue on behalf of
itself and a putative class action of all other automotive software
vendors in the United States that purchased data integration
services from CDK Global, LLC or Reynolds and Reynolds.
CDK Global, LLC moved to compel arbitration of AutoLoop's claims,
or in the alternative, to dismiss those claims; that motion was
denied on January 25, 2019.
CDK Global, LLC filed an answer to AutoLoop's complaint and
asserted counterclaims against AutoLoop on February 15, 2019.
AutoLoop filed an Answer to CDK Global, LLC's counterclaims on
March 8, 2019.
CDK Global, Inc. provides software and technology solutions for
automotive retailers in the United States and internationally. The
company operates through Retail Solutions North America,
Advertising North America, and CDK International segments. CDK
Global, Inc. is headquartered in Hoffman Estates, Illinois.
CEC ENTERTAINMENT: Appeal in Apollo-Merger Suit Still Pending
-------------------------------------------------------------
CEC Entertainment, Inc. disclosed in its Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended June 30, 2019, that the appeal from a court decision
dismissing the Apollo merger-related suit remains pending in the
Kansas Court of Appeals, where oral arguments of the appeal was
conducted on August 13, 2019.
Following the January 16, 2014 announcement that CEC Entertainment
had entered into an agreement ("Merger Agreement"), pursuant to
which an entity controlled by Apollo Global Management, LLC and its
subsidiaries merged with and into CEC Entertainment, with CEC
Entertainment surviving the merger ("the Merger"), four putative
shareholder class actions were filed in the District Court of
Shawnee County, Kansas, on behalf of purported stockholders of CEC
Entertainment, against A.P. VIII Queso Holdings, L.P., CEC
Entertainment, CEC Entertainment's directors, Apollo and Merger Sub
(as defined in the Merger Agreement), in connection with the Merger
Agreement and the transactions contemplated thereby.
These actions were consolidated into one action (the "Consolidated
Shareholder Litigation") in March 2014, and on July 21, 2015, a
consolidated class action petition was filed as the operative
consolidated complaint, asserting claims against CEC's former
directors, adding The Goldman Sachs Group ("Goldman Sachs") as a
defendant, and removing all Apollo entities as defendants (the
"Consolidated Class Action Petition").
The Consolidated Class Action Petition alleges that CEC
Entertainment's directors breached their fiduciary duties to CEC
Entertainment's stockholders in connection with their consideration
and approval of the Merger Agreement by, among other things,
conducting a deficient sales process, agreeing to an inadequate
tender price, agreeing to certain provisions in the Merger
Agreement, and filing materially deficient disclosures regarding
the transaction.
The Consolidated Class Action Petition also alleges that two
members of CEC Entertainment's board who also served as the senior
managers of CEC Entertainment had material conflicts of interest
and that Goldman Sachs aided and abetted the board's breaches as a
result of various conflicts of interest facing the bank.
The Consolidated Class Action Petition seeks, among other things,
to recover damages, attorneys' fees and costs.
The Company assumed the defense of the Consolidated Shareholder
Litigation on behalf of CEC's named former directors and Goldman
Sachs pursuant to existing indemnity agreements.
On March 23, 2016, the Court conducted a hearing on the defendants'
Motion to Dismiss the Consolidated Class Action Petition and on
March 1, 2017, the Special Master appointed by the Court issued a
report recommending to the Court that the Consolidated Class Action
Petition be dismissed.
On September 9, 2018, the Court accepted the Special Master's
recommendations and dismissed the lawsuit in its entirety.
On October 8, 2018, the Plaintiff in the Consolidated Shareholder
Litigation filed a notice of appeal of the District Court's
decision. The Kansas Court of Appeals conducted oral arguments of
the appeal on August 13, 2019.
The Company said, "While no assurance can be given as to the
ultimate outcome of the consolidated matter, we currently believe
that the final resolution of the action will not have a material
adverse effect on our results of operations, financial position,
liquidity or capital resources."
CEC Entertainment, Inc. develops, operates, and franchises family
dining and entertainment centers (venues) under the names of Chuck
E. Cheese's and Peter Piper Pizza in the United States and
internationally. The company was formerly known as ShowBiz Pizza
Place, Inc. and changed its name to CEC Entertainment, Inc. in
1998. CEC Entertainment, Inc. was founded in 1977 and is
headquartered in Irving, Texas. CEC Entertainment, Inc. is a
subsidiary of Queso Holdings Inc.
CHAITMAN LLP: Court Denies Bid to Dismiss Shulman Suit
------------------------------------------------------
In the case, KEVIN SHULMAN and CARAN ROSS, in their capacities as
co-trustees of the FLORENCE SHULMAN POUROVER TRUST; and ESTELLE
HARWOOD, individually and in her capacity as trustee of the ESTELLE
HARWOOD REVOCABLE TRUST; on behalf of themselves and all others
similarly situated, Plaintiffs, v. CHAITMAN LLP and BECKER &
POLIAKOFF, LLP, Defendants. CHAITMAN LLP, Counterclaim Plaintiff,
v. KEVIN SHULMAN, individually and in his capacity as co-trustee of
the FLORENCE SHULMAN POUROVER TRUST; CARAN ROSS individually; KEVIN
SHULMAN as power of attorney for THE ALVIN E. SHULMAN POUROVER
TRUST; KEVIN SHULMAN as trustee of THE ALVIN E. SHULMAN POUROVER
TRUST; KEVIN SHULMAN as trustee for ALVIN E. SHULMAN INDIVIDUALLY,
Counterclaim Defendants, Case No. 17-CV-9330 (VM)(JLC)(S.D. N.Y.),
Judge James L. Cott of the U.S. District Court for the Southern
District of New York (i) denied the Defendants' Motions to Dismiss,
and (ii) granted the Plaintiffs' Motion to Amend the First Amended
Complaint.
Plaintiffs Shulman and Ross, in their capacities as co-trustees of
the Florence Shulman Pourover Trust, and Estelle Harwood,
individually and in her capacity as trustee of the Estelle Harwood
Revocable Trust, on behalf of themselves and all others similarly
situated, brought the action against Defendants Chaitman and Becker
& Poliakoff ("B&P"), alleging breach of fiduciary duty, breach of
contract, unjust enrichment, and fraud related to the Defendants'
representation of the Plaintiffs in various lawsuits stemming from
the liquidation of Bernard L. Madoff Investment Securities LLC.
By Order dated Aug. 9, 2018, the Court referred general pretrial
matters and dispositive motions to Magistrate Judge James L. Cott.
Specifically, the Court referred the Defendants' motions to dismiss
for lack of subject matter jurisdiction.
On Sept. 21, 2018, after briefing for the Defendants' Motions to
Dismiss concluded, the Plaintiffs filed a motion for leave to amend
the First Amended Complaint.
On April 11, 2019, Magistrate Judge Cott issued a Report and
Recommendation, recommending that the Defendants' Motions to
Dismiss be denied and the Plaintiffs' Motion to Amend be granted.
Upon a de novo review of the full factual record in the litigation,
including the pleadings and the parties' respective papers
submitted in connection with the underlying motions and in the
proceeding, as well as the Report and applicable legal authorities,
the Court reaches the same conclusions as Magistrate Judge Cott.
The Court further concludes that the findings, reasoning, and legal
support for the recommendations made in the Report are consistent
with applicable law as set forth in the cases and statutes relied
upon therein, and are thus warranted. Accordingly, for
substantially the reasons set forth in Magistrate Judge Cott's
thorough and detailed Report, the Court adopts in their entirety
the Report's factual and legal analyses and determinations, as well
as its substantive recommendations, as the Court's ruling on the
Defendants' Motions to Dismiss and the Plaintiffs' Motion to
Amend.
For the reasons discussed, the Court adopted the Report and
Recommendation of Magistrate Judge James Cott dated April 11, 2019
in its entirety, and denied the objections of Defendants Chaitman
and B&P. The Court granted the Plaintiffs' motion for leave to
amend the First Amended Complaint.
A full-text copy of the Court's July 19, 2019 Decision and Order is
available at https://is.gd/Sbw2uG from Leagle.com.
Kevin Shulman, in their capacities as co-trustees of the FLORENCE
SHULMAN POUROVER TRUST, on behalf of themselves and all others
similarly situated, Caran Ross, in their capacities as co-trustees
of the FLORENCE SHULMAN POUROVER TRUST, on behalf of themselves and
all others similarly situated & Estelle Harwood, Individually and
in her capacity as trustee of the ESTELLE HARWOOD REVOCABLE TRUST;
on behalf of themselves and all others similarly situated,
Plaintiffs, represented by Ian Philip Samson, Engstrom, Lipscomb &
Lack, pro hac vice, Paul Allan Traina, Stalwart Law Group & Dylan
Ruga -- dylan@stalwartlaw.com -- Stalwart Law Group.
Chaitman LLP, Defendant, represented by Joan M. Gilbride --
jgilbride@kbrlaw.com -- Kaufman, Borgeest & Ryan, LLP, David Bloom
-- dbloom@kbrlaw.com -- Kaufman Borgeest & Ryan LLP & Rebecca A.
Barrett -- rbarrett@kbrlaw.com -- Kaufman Borgeest & Ryan LLP.
Becker & Poliakoff, LLP, Defendant, represented by Jamie Rebecca
Wozman, Wilson Elser Moskowitz Edelman & Dicker LLP & Mark Kenneth
Anesh, Lewis, Brisbois, Bisgaard & Smith, LLP.
Chaitman LLP, Counter Claimant, represented by Joan M. Gilbride,
Kaufman, Borgeest & Ryan, LLP, David Bloom, Kaufman Borgeest & Ryan
LLP & Rebecca A. Barrett, Kaufman Borgeest & Ryan LLP.
Caran Ross, in their capacities as co-trustees of the FLORENCE
SHULMAN POUROVER TRUST, on behalf of themselves and all others
similarly situated & Kevin Shulman, in their capacities as
co-trustees of the FLORENCE SHULMAN POUROVER TRUST, on behalf of
themselves and all others similarly situated, Counter Defendants,
represented by Ian Philip Samson, Engstrom, Lipscomb & Lack & Dylan
Ruga, Stalwart Law Group.
CHEFS' WAREHOUSE: Bid for Prelim Injunction in Robinson Suit Denied
-------------------------------------------------------------------
In the case, SHAON ROBINSON, Plaintiff, v. THE CHEFS' WAREHOUSE,
INC., et al., Defendants, Case No. 3:15-cv-05421-RS (KAW) (N.D.
Cal.), Magistrate Judge Kandis A. Westmore of the U.S. District
Court for the Northern District of California denied the
Plaintiffs' motion for preliminary injunction.
Plaintiffs Robinson, Sean Clark, Saul Prado, and James Robert
assert individual and class action claims against the Defendant,
alleging wage and hour violations, as well as various
discrimination claims. The proposed class consists of all persons
employed by the Defendant in the State of California as a Driver or
Driver Trainer at any time on or after Oct. 26, 2011.
In June 2019, the Defendant decided to offer individual settlements
to the putative class members who were former drivers. It claims
to have not contacted current employees to settle their claims. In
preparing to offer settlement, the Defendant contracted with
attorney Alejandro Gonzalez, and created a call list spreadsheet
containing contact information for approximately 100 former
drivers. The Defendant provided the callers with the spreadsheet,
which was accessible to all of the callers to update in real time.
Some of the individuals on the spreadsheet were marked "do not
call." Gonzalez was unaware of the reasons the individuals were
designated "do not call."
On June 20, 2019, the callers began making calls. The callers were
provided with a script to follow, English and Spanish versions of a
release agreement, and answers to frequently asked questions.
The Defendant contends that the script required callers to first
state that they worked for the Chefs' Warehouse and the purpose of
the call. The script also purportedly required the callers to
confirm that individuals were not represented by the counsel prior
to continuing the conversation beyond a brief introduction. Per
the script, the callers provided background information regarding
the lawsuit, identified the putative class action claims, and the
upcoming class certification hearing date. The script required the
callers to make it clear that there was no obligation to accept the
offered settlement. It also made clear that acceptance of the
settlement offer meant giving up any claims in the case, and
instructed individuals to read the release carefully before
exercising their voluntary right to accept. Also, upon request,
the callers provided contact information for the Plaintiffs'
counsel.
The Defendant also prepared an email to send to the former drivers
if they were not reachable by telephone or as follow-up to
telephone calls, which was in both English and Spanish.
The Defendant claims that shortly after calling commenced, the
formatting of the spreadsheet was altered by one of the callers.
Gonzalez attempted to reformat the document, and inadvertently
removed the "do not call" tag from Plaintiff Prado. On June 20,
2019, at 11:02 p.m. (EDT), Gonzalez left Prado a voicemail message
regarding the proposed settlement. Prado called Gonzalez back at
11:33 p.m. (EDT) and left a voicemail asking Gonzalez to return his
call.
On June 21, 2019, at 12:03 p.m. (EDT), Gonzalez received another
call from Prado, which Gonzalez again missed. Gonzalez called
Prado that same afternoon at 12:39 p.m. (EDT), and reached him. It
is undisputed that Gonzalez identified himself as an attorney for
the Defendant. The Defendant contends that, in accordance with the
script, Gonzalez introduced himself and, before engaging in
settlement discussions, asked Prado if he was represented by
counsel. It contends that Prado said that he was not represented,
so Gonzalez continued with the conversation.
During the course of the six minute and 21-second conversation,
Prado stated that he sat for his deposition and that he wanted the
case to be over. Based on these comments, Gonzalez claims to have
again asked if Prado was represented by counsel and Prado again
denied being represented. Prado's initial declaration did not
address whether he was asked if he was represented, but his second
declaration filed in support of the Plaintiffs' reply brief states
that he was questioned about the case after having informed
Gonzalez that he had his own attorney.
While Gonzalez was speaking with Prado, Chris Parkin, Vice
President of Litigation for The Chefs' Warehouse, was reviewing the
spreadsheet and noticed that Prado was called. Parkin immediately
notified Gonzalez that Prado was a named Plaintiff who should not
have been contacted under any circumstances. Upon hearing this,
Gonzalez immediately discontinued the call.
Gonzalez claims that he did not know that Prado was a named
Plaintiff prior to being informed by Parkin. Later that day, Prado
called Gonzalez again, but Gonzalez declined further discussions,
and the phone call lasted less than one minute. The Defendant
contends that neither it nor anyone working for it, including
outside counsel or contract attorneys, has contacted Prado or any
other named Plaintiff since.
On June 21, 2019, Gonzalez called former driver Jonathan Villegas
and left a voicemail message. Villegas did not call back, so, on
June 22, 2019, Gonzalez sent a pair of emails to Villegas, one
through Adobe EcoSign containing a proposed settlement agreement
and the second from his own email account explaining the Adobe
EcoSign email in both English and Spanish and to assure the
recipient that it was not spam. Later that day, due to a purported
technical error, Gonzalez sent Villegas two emails at 9:46 p.m.
(EDT) and 9:48 p.m. (EDT). All of the emails Villegas received
were in both English and Spanish. On June 24, 2019, Gonzalez spoke
with Villegas, and ascertained that he spoke fluent English.
During the call, Villegas asked for the Plaintiff's counsel's
contact information, which Gonzalez provided.
On June 24, 2019, the Plaintiffs' counsel, Stephen Ilg, contacted
Gonzalez to discuss the settlement offered to Prado. Gonzalez told
Ilg that he was a contract attorney for the Chefs' Warehouse and
confirmed that he spoke with Prado the previous week. Shortly
thereafter, Ilg called Gonzalez again and asked what he had
discussed with Defendant's outside counsel Michele Beilke.
Gonzalez stated that the only person he understood to be in a
position to speak about the matter was Parkin. Id.
Upon hearing about this sequence of events, on June 24, 2019 at
1:51 p.m. (EDT), Beilke emailed Ilg and explained that Prado was
inadvertently called and that Gonzalez had no knowledge that he was
a represented party at the time that he called. Ilg responded at
8:11 (PDT), stating that he was immediately filing the Ex Parte
Application for Preliminary Injunction.
On June 24, 2019, the Plaintiffs filed an ex parte application for
a temporary restraining order and a motion for preliminary
injunction. On June 25, 2019, the district court referred the ex
parte application and motion to Magistrate Judge Westmore. On June
26, 2019, the Defendant filed an opposition. On June 27, 2019, the
Plaintiffs filed a reply.
On July 2, 2019, the Magistrate Judge issued an order setting the
hearing on the Plaintiffs' motion for preliminary injunction, but
declined to grant the ex parte application for a temporary
restraining order.
In the motion, the Plaintiffs' counsel seeks to provisionally
certify the class with a "no contact" order for all the putative
class members, and to be appointed as the interim class counsel.
Magistrate Judge Westmore find this as an extreme remedy that is
unwarranted for several reasons, including that the Defendant's
contacts with the putative class members is legal. Furthermore,
the script provided asks individuals if they are represented, and,
if they answer affirmatively, the call is ended. Accordingly, the
Plaintiffs will not suffer irreparable injury if a "no contact"
order is not entered, and the motion for preliminary injunction is
denied.
The Plaintiffs also seek to disqualify Gonzalez and his firm
Virtual Legal Solution, and enjoin him from talking to the
Defendant or its outside counsel. While the Defendant is now well
aware that it made a mistake in including the named Plaintiffs on
the list even with a "do not call" designation, no apparent harm
was done due to the improper contact. Accordingly, Gonzalez was
not in clear violation of any ethical rules by inadvertently
communicating with Prado, so his disqualification is unwarranted.
On March 3, 2017, the Magistrate Judge ordered the Defendant to
produce the names, home addresses, phone numbers, email addresses,
and job title(s) for the entire putative class. She reminded the
Defendant is reminded of its responsibility under Rule 26, and is
ordered to provide an updated putative class list with all of the
requisite information within 7 days of the Order. It is unjust for
the Defendant to contact the putative class members unknown to the
Plaintiffs, and to do so in violation of a court order. To assist
in remedying the Defendant's apparent discovery violation, tge
Defendant will refrain from contacting any putative class members
until 7 days after the updated contact list is produced, which will
provide the Plaintiffs with time to contact the putative class
members without competition from the Defendant.
Additionally, the Plaintiffs seek to compel the production of
information obtained by the Defendant regarding the contacts with
all the putative class members, including copies of the settlement
agreements transmitted to the putative class members. To the
extent that the Plaintiffs' request copies of settlement agreements
and discussion with unrepresented, putative class members, these
are privileged and will not be produced. Notwithstanding, the
Defendant is ordered to produce information regarding its
communications with Prado, and will do so within 7 days of the
Order.
Additionally, given that the Defendant has not supplemented its
putative class member contact list, its updated contact list will
be annotated to identify which putative class members have executed
settlement agreements.
In light of the foregoing, Magistrate Judge Westmore denied the
Plaintiffs' motion for preliminary injunction. Within 7 days of
the order, the Defendant will produce an updated contact list for
all the putative class members, as well as information pertaining
to its communication with Prado. Additionally, it must wait 7 days
after the updated list is produced before it resumes contacting the
putative class members.
A full-text copy of the Court's July 17, 2019 Order is available at
https://is.gd/DSoWAz from Leagle.com.
Shaon Robinson, on behalf of himself, all others similarly
situated, and the general public, Plaintiff, represented by Cody
Thomas Stroman, Hoffman Employment Lawyers, PC, Leonard Thomas Emma
-- lemma@employment-lawyers.com -- Hoffman Employment Lawyers LLC &
Stephen Noel Ilg -- silg@employment-lawyers.com -- Hoffman
Employment Lawyers.
The Chefs' Warehouse, Inc., A Delaware Corporation & Chefs'
Warehouse West Coast, LLC, a California limited liability company,
Defendants, represented by Julia Yenha Trankiem --
jtrankiem@reedsmith.com -- Reed Smith LLP, Michele Jane Beilke --
mbeilke@reedsmith.com -- Reed Smith, LLP, Sonya Devorah Goodwin --
sgoodwin@reedsmith.com -- Reed Smith LLP, Zaher Lopez --
zlopez@reedsmith.com -- Reed Smith LLP & Ian Andrew Wright --
iwright@reedsmith.com -- Reed Smith LLP.
CHURCH OF JESUS CHRIST: Faces Class Action Over "Scheme of Lies"
----------------------------------------------------------------
Jonny Bonner, writing for Courthouse News Service, reported that a
federal lawsuit sure to get attention in Utah claims that the
"Mormon Corporate Empire" has driven worshipers to existential
crises, suicide, anxiety and depression by peddling a "scheme of
lies" centered on the religion's creation and its scriptures, a
onetime member claims.
Laura Gaddy on Aug. 5 filed a scathing, 75-page class action
against the Church of Jesus Christ of Latter-day Saints.
Represented by Salt Lake City attorney Kay Burningham, Gaddy claims
the church, which claimed 16 million members worldwide in 2018,
twisted "the foundational history of Mormonism" in a "fraudulent
scheme perpetrated for generations."
"The material facts upon which Mormonism is based have been
manipulated through intentional concealment, misrepresentation,
distortion and or obfuscation by the [LDS] to contrive an
inducement to faith in Mormonism's core beliefs," the complaint
states.
The defendant is The Corporation of the President of the Church of
Jesus Christ of Latter-day Saints, which Gaddy describes as a
holding company, "which owns and/or controls several for-profit
businesses."
The complaint cites official, "whitewashed" teachings of Mormonism
claiming to be the restoration of the gospel of Jesus Christ, in
which a divine authority essential to that gospel was taken from
Earth after Christ's crucifixion and purportedly restored hundreds
of years later to church founder Joseph Smith.
According to Mormon history, an angel guided Smith to buried gold
plates near his home in Upstate New York in 1823. Smith allegedly
collected the plates, which were inscribed in reformed Egyptian by
ancient Americans with Hebraic DNA, and translated them into the
church's signature text, the Book of Mormon, which he published in
1830.
Mormons migrated to Ohio in 1831 due to persecution for their
beliefs, which included polygamy, and Smith was killed by an angry
mob while jailed in Missouri in 1844. Mormon settlers arrived in
the Great Salt Lake Valley in 1847.
Gaddy claims that LDS leaders have recently and partially admitted,
"albeit in an intentionally limited and ever changing manner," that
Smith did not directly use gold plates to create the Book of
Mormon, contradicting orthodox narrative.
"Those individuals close to Smith during the period of Book of
Mormon creation concede that Smith dictated the Book of Mormon
while having his head in a hat which contained a seer stone, the
same type stone he had previously used to look for buried
treasure," the complaint states.
Smith spent part of his early career in New York as a hidden
treasure hunter, and was arrested and tried as a "disorderly
person" in 1926, Fraser's Magazine reported in 1873.
Gaddy claims that historically accurate accounts successfully
challenge bogus LDS Church narratives of Smith's first vision of
"two personages whom he believed to be God the Father and his Son,
Jesus Christ" in 1820, his translation of Egyptian papyri into the
Book of Abraham in 1880, and representations of Smith as a
monogamist.
"When the true facts are substituted for the longstanding false
orthodox narrative, the story that emerges has shocked devoted
Mormons who have made life-altering decisions based upon a scheme
of lies," the complaint states.
From 2013 to 2019, the LDS Church published a series of essays via
LDS.org that addressed controversial aspects of its history and
theology, including Smith's first vision accounts, his
translations, and Book of Mormon-related geography.
LDS historian Steven Snow said a soft launch of that information
was intended to "inoculate" members about the "church's
controversial history," the complaint states.
LDS leadership, however, did not alert followers to the existence
of the essays during annual general conferences, Gaddy says, at
which its highest-ranking authorities "warned that the Internet has
no truth filter and that sifting through the Internet for
information is akin to roaming through garbage."
In 2015, the LDS Church removed what it claimed to be Smith's seer
stone from a vault and allowed it to be photographed.
That act "was the first in over a century where [LDS] openly
admitted that its founding prophet used a seer stone to create the
Book of Mormon," the complaint states.
It continues: "Nevertheless, to this day, neither the actual seer
stone nor a photo of it has been referenced or shown in General
Conference or, upon information and belief, to those attending
weekly services in wards or branches."
Gaddy attended an LDS ward in North Carolina in her youth, where
she "sang children's tunes about Smith's golden plates being a
record made by [the ancient prophet] Nephi and the first vision in
the sacred grove where Smith claimed to see two personages, God the
Father and his Son."
She and the proposed class dedicated their "spiritual, educational,
cultural and social life to the Mormon Corporate Empire," which is
composed of distinct participation levels: paid general
authorities, unpaid local leadership, relevant business entities
and the "Mormon Educational Empire," the complaint states.
The LDS Church did not respond to a request for comment.
Gaddy seeks punitive damages on seven counts, including RICO,
fraud, breach of fiduciary duties and emotional distress.
She claims the LDS Church's false narratives and continuing
misrepresentations "caused immeasurable emotional harm in the form
of existential crises, suicides, broken families, insomnia,
anxiety, and depression, of which [LDS] and members of the Mormon
hierarchy are acutely aware." [GN]
CLEVELAND, OH: Bid for Class Certification Denied as Moot
---------------------------------------------------------
In the class action lawsuit styled as SARAH B. CONNER, individually
and on behalf of all others similarly situated, the Plaintiff, vs.
CLEVELAND COUNTY, NORTH CAROLINA, also known as Cleveland County
Emergency Medical Services, the Defendant, Case No.
1:18-cv-00002-MR-WCM (W.D.N.C.), the Hon. Judge Martin Reidinger
entered an order on August 21, 2019:
1. overruling parties' objections to the Memorandum and
Recommendation;
2. accepting the Memorandum and Recommendation;
3. granting Defendant's Motion to Dismiss as follows:
a. The Plaintiff's Fair Labor Standards Act claim is
dismissed with prejudice; and
b. The Court declines to exercise supplemental jurisdiction
over the Plaintiff’s breach of contract claim, and such
claim is therefore dismissed without prejudice;
4. denying as moot Plaintiff's motion for collective and class
certification, in light of the dismissal of the Plaintiff's
claims; and
5. directing the Clerk of Court to close the case.
After careful consideration of the Memorandum and Recommendation
and the parties' Objections thereto, the Court finds that the
Magistrate Judge's proposed conclusions of law are correct and
consistent with current case law. Accordingly, the Court hereby
accepts the Magistrate Judge's recommendation that the Motion to
Dismiss should be granted. In light of the dismissal of the
Plaintiff's claims, the Plaintiff's Motion for Collective and Class
Certification will be denied as moot.[CC]
CREDIT PROS: Showe-Gaither Sues Over TCPA Violation
---------------------------------------------------
VICTORIA SHOWE-GAITHER, individually and on behalf of all others
similarly situated, Plaintiff, v. THE CREDIT PROS INTERNATIONAL
CORPORATION, and DOES 1 through 10, inclusive, and each of them,
Defendants, Case No. 2:19-cv-07227 (C.D. Cal., Aug. 20, 2019) seeks
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"), thereby invading Plaintiff' privacy.
Beginning in January 18, 2019, Defendant contacted Plaintiff on her
cellular telephone in an effort to sell or solicit its services.
The Defendant used an "automatic telephone dialing system" to place
its call to Plaintiff seeking to solicit its services. The
Defendant contacted or attempted to contact Plaintiff from
telephone numbers confirmed to belong to Defendant. The Defendant's
calls constituted calls that were not for emergency purposes.
Plaintiff is not a customer of Defendant's services and has never
provided any personal information, including her cellular telephone
numbers, to Defendant for any purpose whatsoever. Accordingly,
Defendant never received Plaintiff' "prior express consent" to
receive calls using an automatic telephone dialing system or an
artificial or prerecorded voice on their cellular telephone
pursuant to the TCPA, says the complaint.
Plaintiff, VICTORIA SHOWE-GAITHER is a natural person residing in
Los Angeles County, California.
THE CREDIT PROS INTERNATIONAL CORPORATION is a credit consulting
company.[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, 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
DESIGNER BRANDS: LaGuardia Sues Over Unsolicited Texts, Calls
-------------------------------------------------------------
ERIC LAGUARDIA, on behalf of himself and all others similarly
situated, Plaintiff, v. DESIGNER BRANDS INC., f.k.a. DSW, Inc., an
Ohio corporation; and DSW SHOE WAREHOUSE, INC., a Missouri
corporation, Defendants, Case No. 3:19-cv-01568-JM-BLM (S.D. Cal.,
Aug. 20, 2019) is a class action against DSW to stop it from making
unsolicited and auto-dialed "spam" text message and calls to
cellular phones, and to obtain redress for all persons injured by
this illegal conduct.
In an effort to promote its sales, DSW transmits unauthorized
advertisements in the form of bulk spam text message calls to the
cellular telephones of unwilling consumers. It bombards consumers
with unwanted spam even after they tell DSW that they want the spam
to stop, says the complaint. Moreover, DSW bombarded some consumers
with unwanted spam even though they were registered on the National
Do Not Call registry. By sending these unauthorized text message
calls, or wireless spam, DSW has caused consumers actual harm, not
only because consumers were subjected to the aggravation that
necessarily accompanies wireless spam, but also because consumers
frequently have to pay their cell phone service providers for the
receipt of such wireless spam. In order to redress these injuries,
Plaintiff, on behalf of himself and others similarly-situated,
brings suit under the Telephone Consumer Protection Act, and
California Business & Professions Code Section 17538.41, which
prohibit unsolicited voice and text calls to cell phones, says the
complaint.
Plaintiff Eric LaGuardia is an individual residing in San Diego
County, California.
DSW sells brand name and designer footwear and accessories. Today,
it operates more than 500 stores in 44 states.[BN]
The Plaintiff is represented by:
Craig M. Nicholas, Esq.
Alex M. 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
DIPLOMAT PHARMACY: Robbins Geller to Lead in Securities Fraud Suit
------------------------------------------------------------------
In the case, CHASE MORTIMER, Plaintiff, v. DIPLOMAT PHARMACY INC.,
et al., Defendants, Case No. 19 C 1735 (N.D. Ill.), Judge Virginia
M. Kendall of the U.S. District Court for the Northern District of
Illinois, Eastern Division, (i) granted Iron Workers Local No. 25
Pension Fund's motion for appointment as the Lead Plaintiff and and
approved its selection of Robins Geller Rudman & Dowd LLP as the
class counsel; and (ii) denied Arsany Girgis' motion for
appointment as the Lead Plaintiff and for appointment of lead
counsel.
The case is a securities class action against Diplomat, Brian T.
Griffin, Jeffrey Park, Joel Saban, and Atul Kavthekar. Defendant
Diplomat provides specialty pharmacy services. In 2017, it entered
the Pharmacy Benefit Management ("PBM") business by acquiring
National Pharmaceutical Services ("NPS") and LDI Integrated
Pharmacy Services ("LDI").
Three complaints were filed and eventually consolidated before the
Court. The complaints generally allege that the Defendants
violated federal securities laws by making false or misleading
statements and failing to disclose key facts about the integration
and growth of Diplomat's PBM business, the LDI and NPS
acquisitions, impending impairment charges to its PBM business, and
the nature of its preliminary 2019 full-year outlook.
On Nov. 6, 2018, Diplomat announced its financial results for the
third quarter ending Sept. 30, 2018 and the Defendants attributed
its "solid" results to its ability to "successfully execute on its
growth plan" and "strong PBM performance."
There were originally five movants seeking appointment as the Lead
Plaintiff. Alexander Virgili withdrew his motion before the Court
entered a briefing schedule on the movants' motions. On May 15,
2019, Feihua Xu and Frank Mazur filed a notice of non-opposition to
the Pension Fund's motion for appointment as the Lead Plaintiff.
The same day, Eugene Klabak filed a notice of non-opposition to the
competing motions. Only Girgis and the Fund now remain.
Judge Kendall finds that because the Pension Fund sold its shares
after the first of three alleged corrective disclosures, all of its
claimed losses, $200,005.61, should be included in the Court's
consideration of its financial interest in the case. Girgis claims
$130,006.90 in losses, giving the Pension Fund the greatest
financial interest in the relief sought by the class and
establishing a rebuttable presumption that it should be lead
plaintiff.
Next, the Judge finds that the Fund is not inadequate or atypical
solely because it can only show losses related to one of the three
disclosures at issue. To the extent there are concerns about the
Fund's incentives to pursue losses related to the second and third
disclosures, the Fund has represented that it will ensure that
class representatives are added to the amended consolidated
complaint to ward off loss causation challenges. Given its alleged
losses, and its commitment to add class representatives whose
losses derive from the second and third disclosures, the Fund has a
substantial interest in the outcome of the case. Its injuries are
based on the same legal theories and arise from the same set of
events as the other class members in the case and its claims do not
conflict with those of the rest of the class. The Fund has
satisfied its burden of making a preliminary showing that it
satisfies Rule 23's requirements for the Lead Plaintiff purposes.
Finally, Girgis argues that Robins Geller has a conflict of
interest primarily because this is a limited fund scenario -- i.e.,
Diplomat may not have the ability to pay judgments in both
Zimmerman v. Diplomat and the case, which would require both
classes to compete for the same limited pool of funds. If that
situation were to arise, there indeed could be a potential
conflict if Robbins Geller represented two classes of the
Plaintiffs fighting over the same pot of money. But as the
parties' motions and related filings demonstrate, the Judge holds
this is not a limited fund scenario. Even if it were, additional
safeguards are present that prevent the potential conflict from
disqualifying Robbins Geller.
For the reasons stated, Judge Kendall (i) granted the Pension
Fund's motion for appointment as the Lead Plaintiff, and approved
its selection of Robins Geller as the lead counsel. She denied
Girgis's motion and dismissed as moot Klabak's motion.
A full-text copy of the Court's July 19, 2019 Memorandum Opinion
and Order is available at https://is.gd/WKxRJU from Leagle.com.
Chase Mortimer, Individually and on Behalf of All Others Similary
Situated, Plaintiff, represented by Marvin Alan Miller --
mmiller@millerlawllc.com -- Miller Law LLC & Lori Ann Fanning --
lfanning@millerlawllc.com -- Miller Law LLC.
William Riehm & Alaxander Virgili, Plaintiffs, represented by
Matthew Todd Hurst -- mhurst@shhllp.com -- Heffner Hurst.
Diplomat Pharmacy, Inc., Brian T. Griffin, Jeffrey Park, Joel Saban
& Atal Kavthekar, Defendants, represented by James Wallace Ducayet
-- JDUCAYET@SIDLEY.COM -- Sidley Austin LLP, Nilofer Ibrahim Umar
-- NUMAR@SIDLEY.COM -- Sidley Austin LLP & David Allan Geiger --
DGEIGER@SIDLEY.COM -- Sidley Austin Llp.
Feihua Xu & Frank Mazur, Movants, represented by Carl V. Malmstrom,
Wolf Haldenstein Adler Freeman & Herz LLC.
Iron Workers Local No. 25 Pension Fund, Movant, represented by
James E. Barz, Robbins Geller Rudman & Dowd LLP, Danielle S. Myers,
Robbins Geller Rudman & Dowd LLP & Frank Anthony Richter, Robbins
Geller Rudman & Dowd.
Arsany Girgis, Movant, represented by Reed R. Kathrein, Hagens
Berman Sobol Shapiro LLP, Daniel J. Kurowski, Hagens Berman Sobol
Shapiro LLP & Lucas Gilmore, Hagens Berman Sobol Shapiro LLP, pro
hac vice.
ELECTROCORE INC: Faces 2 IPO-Related Class Lawsuits in New Jersey
-----------------------------------------------------------------
electroCore, Inc. is facing two putative class action lawsuits
related to its June 2018 initial public offering (IPO), according
to the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2019.
On July 8, 2019 and August 1, 2019, purported stockholders of the
Company served putative class action lawsuits in the Superior Court
of New Jersey for Somerset County, captioned Paul Kuehl vs.
electroCore, Inc., et al., Docket No. SOM-L 000876-19 and Shirley
Stone vs. electroCore, Inc., et al., Docket No. SOM-L 001007-19,
respectively.
In addition to the Company, the defendants include present and past
directors and officers, the underwriters for the Company's IPO, and
two stockholders of the Company. The plaintiffs each seek to
represent a class of stockholders who purchased common stock of the
Company in its IPO or whose purchases are traceable to that
offering.
The complaints allege that the defendants violated Sections 11,
12(a)(2) and 15 of the Securities Act with respect to the
registration statement and related prospectus for the IPO. The
complaints seek unspecified compensatory damages, interest, costs
and attorneys' fees.
electroCore said, "The Company intends to vigorously defend itself;
however, in light of, among other things, the preliminary stage of
this litigation, the Company is unable to determine the reasonable
probability of loss or a range of potential loss. Accordingly, the
Company has not established an accrual for potential losses, if
any, that could result from an unfavorable outcome."
electroCore, Inc., a bioelectronic medicine company, engages in
developing a range of patient-administered non-invasive vagus nerve
(VNS) stimulation therapies for the treatment of various conditions
in neurology, rheumatology, and other fields. The company was
founded in 2005 and is headquartered in Basking Ridge, New Jersey.
ENHANCED RECOVERY: Pacheco Alleges Violation under FDCPA
--------------------------------------------------------
A class action lawsuit has been filed against Enhanced Recovery
Company, LLC. The case is styled as Sakiyna Pacheco, individually
and on behalf of all others similarly situated, Plaintiff v.
Enhanced Recovery Company, LLC, Defendant, Case No. 1:19-cv-04811
(E.D. N.Y., Aug. 21, 2019).
The docket of the case states the nature of suit as Consumer Credit
filed pursuant to the Fair Debt Collection Practices Act.
Enhanced Recovery Company or ERC is a debt collection agency.[BN]
The Plaintiff appears PRO SE.
EQUIFAX: A. Keller Youngest Woman to Lead Data Breach MDL
---------------------------------------------------------
Lauren Victory, writing for CBS Chicago, reports that Amy Keller,
Esq. -- akeller@dicellolevitt.com -- one of the attorneys
responsible for a $700 million settlement agreement with Equifax
over the credit bureau's massive data breach in 2017, made history
as the youngest woman ever to lead a nationwide multi-district
class action lawsuit.
Keller said she never imagined this is where she would be at age
36.
"No, not at all," she said.
The Chicago-based attorney is both modest and proud about her role
in the Equifax settlement. Alongside three men decades her senior,
she launched a lawsuit on behalf of 147 million Americans whose
private information was leaked in 2017 when hackers breached
Equifax.
Keller said she filed a lawsuit against Equifax the night the
breach was announced.
"This involved really taking a deep dive into what documents the
company produced, working with our experts to also get a really
solid understanding of how the breach occurred, and what could be
done to make sure something like this doesn't happen again," she
said.
Consumers can check online to find out if their data was stolen. If
so, they can file a claim on the Equifax website to receive either
free credit monitoring for up to 10 years or a cash payout from
Equifax if they already have credit monitoring.
Keller led the push to make the website mobile friendly.
"Even though we acknowledge my age quite frequently and we have a
good laugh about it, all of my input is the same as theirs, my
standing is the same as theirs, and I can handle anything that they
would handle," she said.
That has meant countless emails, phone calls and travel back and
forth to a courtroom in Atlanta.
Keller laughed when asked what the last two years have been like
for her.
"I have other cases, too. So juggling those cases and making sure
that I attend to this case and give it adequate time, it has taken
up a very substantial part of my life," she said.
She also defended a stipulation in the settlement that the
attorneys who sued Equifax could charge up to $77.5 million in fees
and be reimbursed as much as $3 million more.
"We have to respond to everything they throw at us. If they don't,
then we'll lose. So the attorney time is actually quite
substantial," she said.
Keller said the job is nowhere near done. She and her team now need
to sort through more than 1 million claims already filed and more
to come in. They'll also have to make sure Equifax holds up its
side of the deal once the settlement is finalized.
Meantime, Keller recently was named head counsel in a lawsuit
against Marriott in connection to a data breach that exposed the
personal information of up to 500 million people worldwide. [GN]
EROS INTERNATIONAL: 2 Putative Class Suits in New Jersey Underway
-----------------------------------------------------------------
Eros International Plc said in its Form 20-F filed with the U.S.
Securities and Exchange Commission on August 14, 2019, for the
fiscal year ended March 31, 2019, that beginning on June 21, 2019,
the Company was named a defendant in two substantially similar
putative class action lawsuits filed in federal court in New Jersey
by purported shareholders of the Company.
The lawsuits allege that the Company and certain individual
defendants violated Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 by making false and/or misleading statements
regarding the Company's accounting for trade receivables.
The Company said, "We expect that the lawsuits will be consolidated
and that the court-appointed lead plaintiff will file a
consolidated complaint. The Company expects to file a motion to
dismiss any consolidated complaint."
Eros International Plc, together with its subsidiaries,
co-produces, acquires, and distributes Indian language films in
various formats worldwide. The company was founded in 1977 and is
based in Secaucus, New Jersey.
FAT BRANDS: Jordan and Kovacs Narrow Claims in Amended Complaint
----------------------------------------------------------------
Charles Jordan and David Kovacs, who are the Lead Plaintiffs in the
case initially filed by Adam Vignola, filed a Second Amended Class
Action Complaint reducing the scope of the allegations previously
asserted, according to FAT Brands Inc.'s Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended June 30, 2019.
On August 24, 2018, plaintiff Adam Vignola, a putative investor in
the Company, filed a putative class action lawsuit against the
Company, Andrew Wiederhorn, Ron Roe, Fog Cutter Capital Group,
Inc., Tripoint Global Equities, LLC and members of the Company's
board of directors, entitled Vignola v. FAT Brands Inc., in the
United States District Court for the Central District of
California, Case No. 2:18-cv-07469.
The complaint asserted claims under Sections 12(a)(2) and 15 of the
Securities Act of 1933, alleging that the defendants are
responsible for false and misleading statements and omitted
material facts in connection with the Company's initial public
offering, which resulted in declines in the price of the Company's
common stock.
The plaintiff alleged that he intended to certify the complaint as
a class action and is seeking compensatory damages in an amount to
be determined at trial.
On October 23, 2018, Charles Jordan and David Kovacs (collectively,
"Lead Plaintiffs") moved to be appointed lead plaintiffs, and the
Court granted Lead Plaintiffs' motion on November 16, 2018.
On January 15, 2019, Lead Plaintiffs filed a First Amended Class
Action Complaint against the Defendants, thereby removing Marc L.
Holtzman, Squire Junger, Silvia Kessel and Jeff Lotman as
defendants, asserting allegations and claims for relief
substantively identical to those asserted in the FAC filed in
Rojany.
On March 18, 2019, Defendants filed a motion to dismiss the FAC or,
in the alterative, to stay the action in favor of Rojany.
On June 14, 2019, the Court denied the motion to stay and granted
the motion to dismiss, with leave to amend.
On August 5, 2019, Lead Plaintiffs filed a Second Amended Class
Action Complaint reducing the scope of the allegations previously
asserted. Unless extended by the Court, Defendants' response to
the Second Amended Class Action Complaint is due August 19, 2019.
All discovery and other proceedings in this action are currently
stayed by operation of the Private Securities Litigation Reform Act
of 1995.
The Company and other defendants dispute the allegations of the
lawsuit and intend to vigorously defend against the claims.
FAT Brands Inc., a multi-brand franchising company, acquires,
markets, and develops fast casual and casual dining restaurant
concepts. The company was founded in 2017 and is headquartered in
Beverly Hills, California. FAT Brands Inc. is a subsidiary of Fog
Cutter Capital Group Inc.
FAT BRANDS: Sept. 11 Status Conference in Rojany Suit
-----------------------------------------------------
The class action suit entitled, Rojany v. FAT Brands Inc., remains
pending, according to FAT Brands Inc.'s Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended June 30, 2019.
Plaintiffs were given until August 30, 2019, to file any amended
pleading, and a status conference has been set for September 11,
2019.
On June 7, 2018, plaintiff Eric Rojany, a putative investor in the
Company, filed a putative class action lawsuit against the Company,
Andrew Wiederhorn, Ron Roe, Fog Cutter Capital Group, Inc.,
Tripoint Global Equities, LLC and members of the Company's board of
directors, entitled Rojany v. FAT Brands Inc., in the Superior
Court of California for the County of Los Angeles, Case No.
BC708539.
The complaint asserted claims under Sections 12(a)(2) and 15 of the
Securities Act of 1933, alleging that the defendants were
responsible for false and misleading statements and omitted
material facts in connection with the Company's initial public
offering, which resulted in declines in the price of the Company's
common stock.
Plaintiff alleged that he intended to certify the complaint as a
class action and sought compensatory damages in an amount to be
determined at trial.
On August 2, 2018, plaintiff Daniel Alden, another putative
investor in the Company, filed a second putative class action
lawsuit against the same defendants, entitled Alden v. FAT Brands,
Inc., in the same court, Case No. BC716017.
On September 17, 2018, Rojany and Alden were consolidated under the
Rojany case caption and number.
On October 10, 2018, plaintiffs Eric Rojany, Daniel Alden,
Christopher Hazelton-Harrington and Byron Marin filed a First
Amended Consolidated Complaint ("FAC") against the Company, Andrew
Wiederhorn, Ron Roe, James Neuhauser, Edward H. Rensi, Fog Cutter
Capital Group Inc. and Tripoint Global Equities, LLC (collectively,
"Defendants"), thereby removing Marc L. Holtzman, Squire Junger,
Silvia Kessel and Jeff Lotman as defendants. The FAC asserted the
same claims as asserted in the original complaint.
On November 13, 2018, Defendants filed a demurrer to the FAC.
On January 25, 2019, the Court sustained Defendants' demurrer to
the FAC, with leave to amend in part.
On February 25, 2019, Plaintiffs filed a Second Amended
Consolidated Complaint ("SAC") against Defendants.
On March 27, 2019, Defendants filed a demurrer to the SAC.
On July 31, 2019, the Court overruled in part and sustained in part
Defendants' demurrer to the SAC, with leave to amend. Plaintiffs
must file any amended pleading by August 30, 2019. A stay of
discovery in the action remains in effect. A status conference is
set for September 11, 2019.
The Company and other defendants dispute the allegations of the
lawsuit and intend to vigorously defend against the claims.
FAT Brands Inc., a multi-brand franchising company, acquires,
markets, and develops fast casual and casual dining restaurant
concepts. The company was founded in 2017 and is headquartered in
Beverly Hills, California. FAT Brands Inc. is a subsidiary of Fog
Cutter Capital Group Inc.
FOOD LION: Court Refuses to Certify Class in Ratcliffe Suit
-----------------------------------------------------------
The Hon. Eli Richardson denied the Plaintiff's Motion for
Conditional Certification and Court-Authorized Notice Pursuant to
29 U.S.C. Section 216(b) in the lawsuit styled TERRY RATCLIFFE v.
FOOD LION, LLC, Case No. 3:18-cv-01177 (M.D. Tenn.).
For the reasons stated in the accompanying Memorandum Opinion, the
Plaintiff's Motion is denied, according to the order.[CC]
GC SERVICES: Placeholder Bid for Class Certification Filed
----------------------------------------------------------
In the class action lawsuit captioned as TROY NORTON, individually
and on behalf of all others similarly situated, the Plaintiffs, v.
GC SERVICES LIMITED PARTNERSHIP, the Defendant, Case No.
2:19-cv-01218-DEJ (E.D. Wisc.), the Plaintiff asks the Court for an
order certifying a class, appointing the Plaintiff as class
representative, and appointing Ademi & O'Reilly, LLP as Class
Counsel, and for such other and further relief as the Court may
deem appropriate.
The Plaintiff further asks that the Court stay this class
certification motion until an amended motion for class
certification is filed, and that the Court grant the parties relief
from the local rules' automatic briefing schedule and requirement
that Plaintiffs file a brief and supporting documents in support of
this motion.
To avoid the risk of a defendant mooting a putative class
representative's individual stake in the litigation, the Seventh
Circuit instructed plaintiffs to file a certification motion with
the complaint, along with a motion to stay briefing on the
certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896
(7th Cir. 2011), overruled on other grounds, Chapman v. First
Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of
that motion [for class certification] protects a putative class
from attempts to buy off the named plaintiffs."). While the Seventh
Circuit has held that the specific procedure described in
Campbell-Ewald cannot force the individual settlement of a class
representative's claims, the same decision cautions that other
methods may prevent a plaintiff from representing a class. Fulton
Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545-46 (7th Cir.
2017).[CC]
Attorneys for the Plaintiffs are:
Mark A. Eldridge, Esq.
John D. Blythin, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
GENRIC INC: Vance, et al Seek OT Pay for Security Shift Supervisor
------------------------------------------------------------------
Scott Vance, et. al., 213 Evansville St. Bellefontaine, Ohio 43311,
the Plaintiff, vs. Genric Inc. (a.k.a. Genric Security, Inc.) 7380
W. Sand Lake No. 500 Orlando, Fla. 32819, the Defendant, Case No.
2:19-cv-03736-JLG-CMV (S.D. Ohio, Aug. 28, 2019), seeks unpaid
overtime compensation, and other damages arising out of wage and
hour violations pursuant to the Fair Labor Standards Act.
The Plaintiff was employed by Defendant as a Security Shift
Supervisor assigned to work at Honda of America Mfg., Inc.'s East
Liberty Auto Plant located in Logan County, Ohio. His dates of
employment were February 2016 until February 25, 2019. The
Plaintiff and similarly situated members of the putative class were
employees of Defendant and worked in non-exempt, hourly positions.
During their employment with Defendant, the Plaintiff, and
similarly situated members of the putative class, regularly worked
more than 40 hours per week but Defendant failed to pay overtime
wages.
The Defendant is a security company that contracts to provide
security guards for manufacturing facilities, warehouses, oil
fields, mines, hospitals, office buildings and other locations as
dictated by the needs of their customers.[BN]
Attorney for the Plaintiffs are:
Sharon Cason-Adams, Esq.
ADAMS & LIMING, L.L.C.
Rivers Edge Corporate Center
1335 Dublin Road, Suite 104D
Columbus, OH 43215
Telephone: (614) 488-2559
Facsimile: (614) 488-2069
E-mail: sharon@adamsliming.com
GODIVA CHOCOLATIER: Faces Deceptive Advertising Class Action
------------------------------------------------------------
Jesse M. Brody, Esq. -- jbrody@manatt.com -- of Manatt, reported
that in a new false advertising class action, a Virginia resident
accused Godiva of deceptively promoting its chocolate products to
make them seem as if they were made in Belgium -- despite the fact
that they are produced in Pennsylvania.
Kevin Fahey purchased Godiva chocolates with "Belgian 1926"
displayed across the front of the packaging, believing that the
product was Belgium-made. When he learned that Godiva chocolates
sold in the United States are actually made in Reading,
Pennsylvania, he filed suit.
According to Fahey, Belgium produces many of the world's finest
chocolates and consumers "pay a premium for chocolates emanating
from this country." To take advantage of this reputation, Godiva
wants consumers to believe that its products are from Belgium, he
told the court.
Godiva's social media materials "are filled with innuendo" that its
products are made in Belgium, Fahey asserted, with the phrase
"Belgium 1926" emblazoned on its Facebook page, website and product
packaging.
However, American-made Godiva chocolates differ from those produced
in Belgium, Fahey alleged, citing the granddaughter of Godiva's
founder for support. "I've tried the American Godivas and they do
taste different," Melanie Draps told The Washington Post. In the
same article, the president of Godiva Worldwide admitted that
"Godiva's American recipes must be altered" to account for
different laws and regulations.
Fahey's lawsuit -- filed in the District of Columbia, where Godiva
products are widely sold -- seeks monetary and injunctive relief
for violations of the District of Columbia Consumer Protection Act
(which allows for trebled damages).
Why it matters: Godiva faced a similar suit, filed in California
federal court earlier this year, with nearly identical allegations.
Although that case was voluntarily dismissed, the company now faces
a second putative class action in D.C. federal court challenging
the advertising of its chocolates.
The case is Fahey v. Godiva Chocolatier, Inc. [GN]
GOOGLE LLC: Faces Google Assistant Privacy Class Action
-------------------------------------------------------
Marian Johns, writing for Legal Newsline, reports that two
residents of New York and New Jersey have instituted a class action
lawsuit against Google LLC and its parent holding company Alphabet
Inc., alleging the companies illegally recorded and scripted
conversations from consumers worldwide who used devices with
voice-recognition software program Google Assistant.
According to the July 25 U.S. District Court for the Northern
District of California San Jose Division filing, plaintiffs Asif
Kumandan and Melissa Spurr, as guardian of B.S., a minor,
individually and on behalf of others, filed the complaint against
Google LLC and Alphabet Inc. claiming violations of California's
Privacy Act, Unfair Competition Law, Consumers Legal Remedies Act
and the Declaratory Judgment Act.
The plaintiffs allege the defendants have unlawfully and
intentionally recorded individuals' confidential communications
without their consent since May 2016 on devices that use Google
Assistant.
The suit cites a July Belgian news outlet report regarding Google
Assistant's voice-recognition devices recording "millions of
individuals," including children, without consent. The
conversations allegedly were recorded without the consumer using a
"hot word" such as "Hey, Google" or "OK, Google " or pushing the
"user command" buttons that switch the device to the active
"listening mode."
The audio was then transmitted to Google for analysis, according to
the suit. The plaintiffs claim that each recorded conversation is a
violation of California law.
The plaintiffs are asking the court to require Google to delete all
of the recordings of the class members and seek nominal, statutory
and punitive damages as well as injunctive and declaratory relief.
The plaintiffs are represented by Mark N. Todzo and Eric S. Somers
-- esomers@lexlawgroup.com -- of Lexington Law Group in San
Francisco.
U.S. District Court for the Northern District of California, San
Jose Division case number 5:19-cv-04286 [GN]
GREENSKY INC: Still Defends Class Actions in New York over IPO
--------------------------------------------------------------
GreenSky, Inc. and certain of its officers and directors remain
subject to putative securities class actions in connection with the
Company's initial public offering, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended June 30, 2019.
The Company and certain of its officers and directors, together
with certain underwriters of the Company's initial public offering
(IPO), were named in six putative class actions filed in the
Supreme Court of the State of New York, all of which actions have
been consolidated (In Re GreenSky, Inc. Securities Litigation
(Consolidated Action), Index No. 655626/2018 (N.Y. Sup. Ct.) (the
"State Case")), and in two putative class actions filed in the
United States District Court for the Southern District of New York,
both of which actions also have been consolidated (In Re GreenSky,
Inc. Securities Litigation (Consolidated Action), Case No.
1:2018-cv-11071-PAE (S.D.N.Y.) (the "Federal Case" and, together
with the State Case, the "Consolidated Cases")).
The Company and its officers and directors named in the
Consolidated Cases intend to defend themselves vigorously in all
respects in regard thereto.
GreenSky said, "Under certain circumstances, the Company may be
obligated to indemnify some or all of the other defendants in the
Consolidated Cases. As the Company has not determined that the
likelihood of loss with respect to the Consolidated Cases is
probable, the Company has not recorded any liability as of June 30,
2019 with respect to either of such actions."
GreenSky, Inc., a technology company, provides point-of-sale
financing and payment solutions to merchants, consumers, and banks.
It offers a proprietary technology infrastructure that support the
full transaction lifecycle, including credit application,
underwriting, real-time allocation to bank partners, document
distribution, funding, settlement, and servicing functions. The
company was incorporated in 2017 and is headquartered in Atlanta,
Georgia.
GSE SYSTEMS: Bid to Dismiss Joyce Class Action Pending in Maryland
------------------------------------------------------------------
In the case, Joyce v. Absolute Consulting Inc., a motion to dismiss
the class action remains pending, according to GSE Systems, Inc.'s
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarterly period ended June 30, 2019.
On March 29, 2019, a former employee of Absolute Consulting, Inc.,
filed a putative class action against Absolute and the Company,
Joyce v. Absolute Consulting Inc., case number 1:19 cv 00868 RDB,
in the United States District Court for the District of Maryland.
The lawsuit alleges that plaintiff was not properly compensated for
overtime hours that he worked. In addition, he alleges that there
is a class of employees who were not properly compensated for
overtime hours worked.
Absolute and the Company waived service and, on May 28, 2019,
Absolute filed an answer to the complaint and the Company filed a
motion to dismiss asserting that the Company was not the
plaintiff's employer and, therefore, not a proper party to the
litigation. The plaintiff has responded and opposed the motion to
dismiss.
No scheduling order has been issued and the motion to dismiss
remains pending. The Company and Absolute intend to vigorously
defend this litigation. The Company is unable to conclude that the
likelihood of an unfavorable outcome in this matter is remote or
probable, but the Company and Absolute continue to deny the
allegations and defend the case. The Company has asserted an
indemnification claim related to this litigation against the
sellers of Absolute.
GSE Systems, Inc. provides simulation, training, and engineering
solutions to the power and process industries in the United States,
Asia, Europe, and internationally. It operates through two
segments, Performance Improvement Solutions and Nuclear Industry
Training and Consulting. GSE Systems, Inc. was founded in 1994 and
is headquartered in Sykesville, Maryland.
HARBOR ELECTRONICS: Magpuga Sues over Illegal Employment Practices
------------------------------------------------------------------
MELBERT MAGPUGA Y, as an individual and on behalf of all others
similarly situated, the Plaintiffs, vs. HARBOR ELECTRONICS, INC., a
Delaware corporation; and DOES 1 through 50, inclusive, the
Defendants, Case No. 19CV352547 (Cal. Super., Aug. 9, 2019),
challenges systemic illegal employment practices resulting in
violations of the California Labor Code against individuals who
worked for Defendants.
The Plaintiff began working for Defendants as a dry film technician
in about June 26 2007. He worked as a non-exempt, hourly employee
until March 21, 2019.
Harbor Electronics is an industrial consultant providing fabricated
and printed circuit boards.[BN]
Attorneys for the Plaintiff and the Class are:
Larry W. Lee, Esq.
Max W. Gavron, Esq.
DIVERSITY LAW GROUP, P.C.
515 S. Figueroa Street, Suite 1250
Los Angeles, CA 90071
Telephone: (213) 488-6555
Facsimile: (213) 488-6554
- and -
William L. Marder, Esq.
POLARIS LAW GROUP LLP
501 San Benito Street, Suite 200
Hollister, CA 95023
Telephone: (831) 531-4214
Facsimile: (831) 634-0333
HARROW HEALTH: Gaukel Class Action Complaint in Idaho Underway
--------------------------------------------------------------
Harrow Health, Inc. (formerly known as Imprimis Pharmaceuticals,
Inc.) is facing class action allegations and product liability
claims filed by Anna Sue Gaukel and Lawrence Gaukel, according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2019.
In June 2019, Anna Sue Gaukel and Lawrence Gaukel served the
Company with a lawsuit filed in state court in Idaho against
Imprimis Pharmaceuticals, Inc. asserting class action allegations
and product liability claims related to Mrs. Gaukel's doctor's use
of a compounded drug injection in each of her eyes.
In June 2019, the Company removed the case to Federal Court and
subsequently answered the complaint. The case is in the early
phase.
The Company believes the claims are meritless and has previously
and will continue to dispute all claims asserted against it and
intends to vigorously defend against these allegations.
Nonetheless, the Company cannot predict the eventual outcome of
this litigation, it could result in substantial costs, losses and a
diversion of management's resources and attention, which could harm
the Company's business and the value of its common stock.
Harrow Health, Inc., together with its subsidiaries, develops,
produces, and sells medications for unmet needs primarily in the
United States. The company primarily provides ophthalmology based
formulations to physicians and patients; and sterile and
non-sterile compounded medications. The company was formerly known
as Imprimis Pharmaceuticals, Inc. and changed its name to Harrow
Health, Inc. in December 2018. Harrow Health, Inc. was founded in
1998 and is headquartered in San Diego, California.
HC2 HOLDINGS: Schuff Stockholders Litigation Still Ongoing
----------------------------------------------------------
HC2 Holdings, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 8, 2019, for the
quarterly period ended June 30, 2019, that the company continues to
defend against a consolidated class action suit entitled, Schuff
International, Inc. Stockholders Litigation.
On November 6, 2014, a putative stockholder class action complaint
challenging the tender offer by which HC2 acquired approximately
721,000 of the issued and outstanding common shares of DBM Global
Inc. (DBMG) was filed in the Court of Chancery of the State of
Delaware, captioned Mark Jacobs v. Philip A. Falcone, Keith M.
Hladek, Paul Voigt, Michael R. Hill, Rustin Roach, D. Ronald
Yagoda, Phillip O. Elbert, HC2 Holdings, Inc., and Schuff
International, Inc., Civil Action No. 10323 (the "Complaint").
On November 17, 2014, a second lawsuit was filed in the Court of
Chancery of the State of Delaware, captioned Arlen Diercks v.
Schuff International, Inc. Philip A. Falcone, Keith M. Hladek, Paul
Voigt, Michael R. Hill, Rustin Roach, D. Ronald Yagoda, Phillip O.
Elbert, HC2 Holdings, Inc., Civil Action No. 10359.
On February 19, 2015, the court consolidated the actions (now
designated as Schuff International, Inc. Stockholders Litigation)
and appointed lead plaintiffs' counsel. The currently operative
complaint is the Complaint filed by Mark Jacobs.
The Complaint alleges, among other things, that in connection with
the tender offer, the individual members of the DBMG Board of
Directors and HC2, the now-controlling stockholder of DBMG,
breached their fiduciary duties to members of the plaintiff class.
The Complaint also purports to challenge a potential short-form
merger based upon plaintiff’s expectation that the Company would
cash out the remaining public stockholders of DBMG following the
completion of the tender offer. The Complaint seeks rescission of
the tender offer and/or compensatory damages, as well as attorney's
fees and other relief. The defendants filed answers to the
Complaint on July 30, 2015.
The parties have been exploring alternative frameworks for a
potential settlement. There can be no assurance that a settlement
will be finalized or that the Delaware Courts would approve such a
settlement even if the parties enter into a settlement agreement.
If a settlement cannot be reached, the Company believes it has
meritorious defenses and intends to vigorously defend this matter.
No further updates were provided in the Company's SEC report.
HC2 Holdings, Inc. provides construction, marine services, energy,
telecommunications, insurance, life sciences, broadcasting, and
other services in the United States, the United Kingdom, and
internationally. The company was formerly known as PTGi Holding
Inc. and changed its name to HC2 Holdings, Inc. in April 2014. HC2
Holdings, Inc. was founded in 1994 and is headquartered in New
York, New York.
HC2 HOLDINGS: Sept. 17 Final Settlement Hearing in Ohio Case
------------------------------------------------------------
HC2 Holdings, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 8, 2019, for the
quarterly period ended June 30, 2019, that the final settlement
hearing, previously scheduled on July 23, 2019, in the class action
suit before the U.S. District Court for the Southern District of
Ohio has been continued and is now scheduled on September 17,
2019.
On November 28, 2016, Continental General Insurance Company
("CGI"), a subsidiary of the Company, Great American Financial
Resource, Inc. ("GAFRI"), American Financial Group, Inc., and CIGNA
Corporation were served with a putative class action complaint
filed by John Fastrich and Universal Investment Services, Inc. in
the United States District Court for the District of Nebraska
alleging breach of contract, tortious interference with contract
and unjust enrichment.
The plaintiffs contend that they were agents of record under
various CGI policies and that CGI allegedly instructed
policyholders to switch to other CGI products and caused the
plaintiffs to lose commissions, renewals, and overrides on policies
that were replaced.
The complaint also alleges breach of contract claims relating to
allegedly unpaid commissions related to premium rate increases
implemented on certain long-term care insurance policies. Finally,
the complaint alleges breach of contract claims related to vesting
of commissions.
On August 21, 2017, the Court dismissed the plaintiffs' tortious
interference with contract claim.
CGI believes that the remaining allegations and claims set forth in
the complaint are without merit and intends to vigorously defend
against them.
The case was set for voluntary mediation, which occurred on January
26, 2018. The Court stayed discovery pending the outcome of the
mediation. On February 12, 2018, the parties notified the Court
that mediation did not resolve the case and that the parties'
discussions regarding a possible settlement of the action were
still ongoing.
The Court held a status conference on March 22, 2018, during which
the parties informed the Court that settlement negotiations remain
ongoing. Nonetheless, the Court entered a scheduling order setting
the case for trial during the week of October 15, 2019.
Meanwhile, the parties' continued settlement negotiations led to a
tentative settlement. On February 4, 2019, the plaintiffs executed
a class settlement agreement with CGI, Loyal American Life
Insurance Company, American Retirement Life Insurance Company,
GAFRI, and American Financial Group, Inc. (collectively, the
"Defendants").
The settlement agreement, which would require GAFRI to make a $1.25
million payment on behalf of the Defendants, is subject to final
Court approval. On February 4, 2019, the plaintiffs filed a motion
for preliminary approval of the class settlement in a parallel
action in the Southern District of Ohio, Case No. 17-CV-00615-SJD,
which motion was granted by the Southern District of Ohio on April
2, 2019.
Meanwhile, the case pending before the District of Nebraska was
stayed on February 6, 2019, pending final approval of the class
action settlement in the Ohio action. The final settlement hearing,
previously scheduled on July 23, 2019, has been continued and is
now scheduled on September 17, 2019.
Further, the Company and CGI are seeking defense costs and
indemnification for plaintiffs’ claims from GAFRI and Continental
General Corporation ("CGC") under the terms of an Amended and
Restated Stock Purchase Agreement ("SPA") related to the
Company’s acquisition of CGI in December 2015. GAFRI and CGC
rejected CGI’s demand for defense and indemnification and, on
January 18, 2017, the Company and CGI filed a Complaint against
GAFRI and CGC in the Superior Court of Delaware seeking a
declaratory judgment to enforce their indemnification rights under
the SPA. On February 23, 2017, GAFRI answered CGI’s complaint,
denying the allegations. Meanwhile, the parties’ continued
settlement negotiations resulted in a settlement agreement in the
Delaware action. The settlement agreement, which requires CGI to
contribute $250,000 to the settlement payment made by GAFRI in the
class action, is contingent on the final approval of the class
action settlement in the Ohio action.
HC2 Holdings, Inc. provides construction, marine services, energy,
telecommunications, insurance, life sciences, broadcasting, and
other services in the United States, the United Kingdom, and
internationally. The company was formerly known as PTGi Holding
Inc. and changed its name to HC2 Holdings, Inc. in April 2014. HC2
Holdings, Inc. was founded in 1994 and is headquartered in New
York, New York.
HEADWAY TECHNOLOGIES: Suit Alleges HDD Price-Fixing
---------------------------------------------------
ANTHONY CIMINO; and BASECAMP INC., individually and on behalf of
all others similarly situated, Plaintiffs v. HEADWAY TECHNOLOGIES,
INC.; HUTCHINSON TECHNOLOGY INC.; MAGNECOMP PRECISION TECHNOLOGY
PUBLIC CO. LTD.; NAT PERIPHERAL (DONG GUAN) CO., LTD.; NAT
PERIPHERAL (H.K.) CO., LTD.; NHK SPRING CO. LTD.; NHK INTERNATIONAL
CORPORATION; NHK SPRING (THAILAND) CO., LTD.; NHK SPRING PRECISION
(GUANGZHOU) CO., LTD.; SAE MAGNETICS (H.K.) LTD.; and TDK
CORPORATION, Defendants, Case No. 1:19-cv-07428 (S.D.N.Y., Aug. 8,
2019) alleges that the Defendants and their co-conspirators engaged
in price fixing for hard disk drive ("HDD") suspension assemblies
in violation of the Sherman Act.
The Defendants and their co-conspirators participated in a
combination and conspiracy to suppress and eliminate competition
for HDD suspension assemblies by agreeing to rig bids for, and to
fix, stabilize, and maintain the prices of HDD suspension
assemblies sold in the U.S. and elsewhere. The combination and
conspiracy engaged in by the Defendants and their co-conspirators
was in unreasonable restraint of interstate and foreign trade and
commerce in violation of the Sherman Antitrust Act, and state
antitrust, unfair competition, consumer protection laws, and the
common law of unjust enrichment.
As a direct and proximate result of the anticompetitive and
unlawful conduct alleged herein, the Plaintiffs and the Classes
paid more during the class period for HDD suspension assemblies
than they otherwise would have paid in a competitive market, and
have thereby suffered antitrust injury to their business or
property.
Headway Technologies provides recording head products to the
computer harddisk drive industry. The Company provides solutions to
the server, mobile, and desktop segments of the hard disk drive
industry for customers throughout the United States. [BN]
The Plaintiffs are represented by:
George F. Farah, Esq.
HANDLEY FARAH & ANDERSON PLLC
81 Prospect Street
Brooklyn, NY 11201
Telephone: (212) 477-8090
Facsimile: (804) 300-1952
E-mail: gfarah@hfajustice.com
- and -
Matthew K. Handley, Esq.
HANDLEY FARAH & ANDERSON PLLC
777 6th Street NW, Eleventh Floor
Washington, DC 20001
Telephone: (202) 559-2411
Facsimile: (804) 300-1952
E-mail: mhandley@hfajustice.com
- and -
Mark A. Griffin, Esq.
Raymond J. Farrow, Esq.
KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200
Seattle, WA 98101-3052
Telephone: (206) 623-1900
Facsimile: (206) 623-3384
E-mail: mgriffin@kellerrohrback.com
rfarrow@kellerrohrback.com
HEALTH INSURANCE: Bid to Dismiss Fla. Consolidated Suit Narrowed
----------------------------------------------------------------
Health Insurance Innovations, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 6,
2019, for the quarterly period ended June 30, 2019, that the court
has granted in part, and denied in part, the motion to dismiss in
the consolidated class action suit entitled, In re Health Insurance
Innovations Securities Litigation, Case No. 8:17-cv-2186-EAK-MAP
(M.D. Fla.).
In September 2017, three putative securities class action lawsuits
were filed against the Company and certain of its current and
former executive officers.
The cases were styled Cioe Investments Inc. v. Health Insurance
Innovations, Inc., Gavin Southwell, and Michael Hershberger, Case
No. 1:17-cv-05316-NG-ST, filed in the U.S. District Court for the
Eastern District of New York on September 11, 2017; Michael
Vigorito v. Health Insurance Innovations, Inc., Gavin Southwell,
and Michael Hershberger, Case No. 1:17-cv-06962, filed in the U.S.
District Court for the Southern District of New York on September
13, 2017; and Shilpi Kavra v. Health Insurance Innovations, Inc.,
Patrick McNamee, Gavin Southwell, and Michael Hershberger, Case No.
8:17-cv-02186-EAK-MAP, filed in the U.S. District Court for the
Middle District of Florida on September 21, 2017. All three of the
foregoing actions (the "Securities Actions") were filed after a
decline in the trading price of the Company's common stock
following the release of a report authored by a short-seller of the
Company's common stock raising questions about, among other things,
the Company's public disclosures relating to the Company's
regulatory examinations and regulatory compliance.
All three of the Securities Actions contained substantially similar
allegations to those raised in the short-seller report alleging
that the Company made materially false or misleading statements or
omissions relating to regulatory compliance matters, particularly
regarding the Company's application for a third-party administrator
license in the State of Florida, which was issued by the State on
February 14, 2018.
In November and December 2017, the Cioe Investments and Vigorito
cases were transferred to the U.S. District Court for the Middle
District of Florida, and on December 28, 2017, they were
consolidated with the Kavra matter under the case caption, In re
Health Insurance Innovations Securities Litigation, Case No.
8:17-cv-2186-EAK-MAP (M.D. Fla.).
On February 6, 2018, the court appointed Robert Rector as lead
plaintiff and appointed lead counsel, and lead plaintiff filed a
consolidated complaint on March 23, 2018. The consolidated
complaint, which dropped Patrick McNamee as a defendant and added
Michael Kosloske as a defendant, largely sets forth the same
factual allegations as the initially filed Securities Actions filed
in September 2017 and added allegations relating to alleged
materially false statements and omissions relating to the
regulatory proceeding previously initiated against the Company by
the Montana State Auditor, Commissioner of Securities and Insurance
(the "CSI") which proceeding was dismissed on October 31, 2017. The
complaint also adds allegations regarding insider stock sales by
Messrs. Kosloske and Hershberger.
The consolidated complaint alleges violations of Section 10(b) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), SEC Rule 10b-5, and Section 20(a) of the Exchange Act.
According to the consolidated complaint, the plaintiffs in the
action are seeking an undetermined amount of damages, interest,
attorneys' fees and costs on behalf of putative classes of
individuals and entities that acquired shares of the Company's
common stock on periods ending September 11, 2017.
On May 7, 2018, the Company and co-defendants filed a motion to
dismiss all claims. On March 29, 2019, the court sua sponte ordered
mandatory mediation before United States Magistrate Judge
Christopher Tuite, which did not result in a settlement. On June
28, 2019, the court granted in part, and denied in part, the motion
to dismiss.
Health Insurance said, "The Company intends to vigorously defend
against the remaining claims."
Health Insurance Innovations, Inc. operates as a cloud-based
technology platform and distributor of individual and family health
insurance plans, and supplemental products in the United States.
Health Insurance Innovations, Inc. was founded in 2008 and is based
in Tampa, Florida.
HERITAGE COMMERCE: Files Supplemental Documents Amid Parshall Suit
------------------------------------------------------------------
Heritage Commerce Corp, through its Form 8-K filed with the U.S.
Securities and Exchange Commission on August 14, 2019, voluntarily
submitted supplementary documents with the SEC to avoid the risk
that the putative class action styled Parshall v. Presidio Bank, et
al. may delay or otherwise adversely affect the consummation of the
Merger and to minimize the expense of defending such actions.
Heritage Commerce Corp, a California corporation ("Heritage"), and
its banking subsidiary Heritage Bank of Commerce, a California
state-chartered commercial bank ("Heritage Bank"), entered into an
Agreement and Plan of Merger and Reorganization with Presidio Bank,
a California state-chartered commercial bank ("Presidio"), pursuant
to which Heritage will acquire Presidio in an all stock merger by
merging Presidio with and into Heritage Bank (the "Merger").
Heritage Bank will survive the Merger and will continue the
commercial banking operations of the combined bank following the
Merger.
On July 29, 2019, a putative class action complaint was filed in
the Superior Court of the State of California, under the caption
Parshall v. Presidio Bank, et al., Case No. CGC-19-577973, against
Presidio, the members of Presidio's board of directors, Heritage
and Heritage Bank, alleging, among other things, that the
defendants breached their fiduciary duties, including duties of
disclosure, or aided and abetted breach of fiduciary duties.
According to the Company, "The following information, dated as of
August 14, 2019, supplements, and should be read in conjunction
with, the joint proxy statement/prospectus, dated July 12, 2019
(the "Proxy Statement"), which was filed with the U.S. Securities
and Exchange Commission ("SEC") and mailed on or about July 22,
2019 to shareholders of record as of the close of business on July
10, 2019 of Presidio and of Heritage. To the extent that
information herein differs from or updates information contained in
the Proxy Statement, the information contained herein supersedes
the information contained in the Proxy Statement. Any defined
terms used but not defined herein shall have the meanings set forth
in the Proxy Statement."
Presidio and Heritage do not believe that further disclosure is
required to supplement the Proxy Statement under applicable law;
however, to avoid the risk that the putative class action may delay
or otherwise adversely affect the consummation of the Merger and to
minimize the expense of defending such actions, Presidio and
Heritage wish to voluntarily make supplemental disclosures related
to the proposed Merger in response to certain of the allegations
raised in the complaint.
A full-text copy of the Form 8-K is available at
https://is.gd/jKfcyd
Heritage Commerce Corp operates as the bank holding company for
Heritage Bank of Commerce that provides various commercial and
personal banking services to residents and the
business/professional community in California. It offers a range
of deposit products for business banking and retail markets,
including interest and non-interest bearing demand, savings
accounts, certificate of deposit, money market accounts, and time
deposits. The Company provides its banking products and services
through 14 full service branch offices in the southern and eastern
regions of the general San Francisco Bay Area of California in the
counties of Santa Clara, Alameda, Contra Costa, and San Benito.
Heritage Commerce Corp was founded in 1997 and is based in San
Jose, California.
HERTZ CORP: Court Rejects Conditional Class Certification Bid
-------------------------------------------------------------
In the class action lawsuit styled as DANIEL FIGUEROA and GRANT
SCHROEDER, on behalf of themselves and all other similarly situated
employees, the Plaintiffs, vs. THE HERTZ CORPORATION and DTG
OPERATIONS, INC., the Defendants, Case No. 2:19-cv-00326-SPC-NPM
(M.D. Fla.), the Hon. Judge Sheri Polster Chappell entered an order
on Aug. 15, 2019:
1. granting Defendants' motion to dismiss Plaintiffs' motion
for conditional certification of a class of:
"location managers, functional managers, counter managers,
and other similar positions";
2. dismissing amended complaint without prejudice;
3. directing Figueroa and Schroeder to file a notice in the
case on or before August 29, 2019, instructing the Court if
they will proceed with their individual claims here or opt
into Aiyekusibe v. The Hertz Corp.,
4. on or before September 5, 2019, directing Figueroa and
Schroeder to file an amended complaint on their individual
claims here or consents to join in Aiyekusibe.
5. denying Plaintiffs' motion to conditionally certify an Fair
Labor Standards Act collective action;
6. denying Defendants' motion to stay as moot;
7. denying Plaintiffs' motion to consolidate; and
8. directing Clerk to file a copy of the order in Aiyekusibe v.
The Hertz Corp.
In short, the first-filed rule applies, and the compliant is
dismissed without prejudice. All motions for conditional
certification in both cases are denied. Within 14 days, Figueroa
and Schroeder must do one of two things: (1) file an amended
complaint, removing all collective action allegations and asserting
only their individual claims; or (2) opt into Aiyekusibe. Failing
to do so may result in this case being closed without further
notice. After that period, a motion for conditional certification
may be refiled in Aiyekusibe.[CC]
IDEANOMICS INC: Jose Pinto Claro Da Fonseca Miranda Suit Underway
-----------------------------------------------------------------
Ideanomics, Inc. is facing a purported class action, captioned Jose
Pinto Claro Da Fonseca Miranda v. Ideanomics, Inc., in New York,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2019.
The purported class action was filed on July 19, 2019, in the
United States District Court for the Southern District of New York
against the Company and certain of its current and former
officers.
Ideanomics said, "While the Company believes that the Class Action
is without merit and plans to vigorously defend itself against
these claims, there can be no assurance that the Company will
prevail in the lawsuits. The Company cannot currently estimate the
possible loss or range of losses, if any, that it may experience in
connection with these litigations."
Ideanomics, Inc. operates as a financial technology and asset
digitization services company. The Company was formerly known as
Seven Stars Cloud Group, Inc. Ideanomics, Inc. was founded in 2004
and is headquartered in New York, New York.
INSPIRE ENERGY: Removes Birchler Suit to D. Massachusetts
---------------------------------------------------------
The Defendants in the case of TIMOTHY BIRCHLER, individually and on
behalf of all others similarly situated, Plaintiff v. INSPIRE
ENERGY HOLDINGS, LLC; PREMIUM ADVERTISING, INC. D/B/A INNOX
INCORPORATED; and ALBERT GRAMLICK, Defendants, filed a notice to
remove the lawsuit from the Superior Court of the Commonwealth of
Massachusetts, County of Norfolk (Case No. 19-00784) to the U.S.
District Court for the District of Massachusetts on August 8, 2019.
The clerk of court for the District of Massachusetts assigned Case
No. 4:19-cv-11721. The case is assigned to Judge Timothy S.
Hillman.
Inspire Energy Holdings, LLC operates as a holding company. The
Company, through its subsidiaries, develops a consumer technology
platform that delivers renewable energy such as wind energy.
Inspire Energy Holdings serves customers in the United States.
[BN]
The Defendants are represented by:
Diane M. Saunders, Esq.
OGLETREE DEAKINS NASH SMOAK & STEWART, P.C.
One Boston Place, Suite 3500
Boston, MA 02108
Telephone: (617) 994-5700
Facsimile: (617) 994-5701
E-mail: diane.saunders@ogletree.com
INUVO INC: Confidential Settlement Reached in Merger-Related Suit
-----------------------------------------------------------------
Inuvo, Inc. disclosed in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2019, that it has entered into a certain Confidential
Settlement Agreement resolving outstanding litigation (including
attorneys' fees claims) against Inuvo and ConversionPoint related
to its Merger Transactions so long as Inuvo pays a settlement fee
by September 30, 2019. Should Inuvo not pay the settlement fee on
or before September 30, 2019, the plaintiffs may pursue claims for
attorneys' fees against Inuvo.
On November 2, 2018, Inuvo entered into the Merger Agreement with
CPT, Parent, CPT Merger Sub and CPT Cigar Merger Sub, Inc. pursuant
to which, among other things, Inuvo would merge with and into Inuvo
Merger Sub and become a wholly-owned subsidiary of Parent, and
ConversionPoint would merge with and into CPT Merger Sub and become
a wholly-owned subsidiary of Parent (collectively, the "Merger
Transactions").
On June 20, 2019, the parties to the Merger Agreement terminated
the Merger Agreement pursuant to an Agreement and Plan of Merger
Termination Agreement. Prior to June 20, 2019, Inuvo and
ConversionPoint were subject to litigation related to the Merger
Transactions.
As of the date of the Company's filing of its Form 10-Q, the
following cases has been dismissed:
* Akerman v. Inuvo, Inc. et al.;
* Spagnolo v. Inuvo, Inc. et al.;
* Franchi v. Inuvo, Inc. et al.; and
* Thomas v. Inuvo, Inc. et al.
On December 19, 2018 and December 20, 2018, respectively, Peter
D'Arcy and Morris Akerman, both of whom claim to be stockholders of
Inuvo, filed separate putative class action lawsuits, captioned
D'Arcy v. Inuvo, Inc. et al., No. 1:18-cv-02023-UNA, in the United
States District Court for the District of Delaware; and Akerman v.
Inuvo, Inc. et al., No. 2:18-cv-02407, in the United States
District Court for the District of Nevada. The two lawsuits each
named Inuvo and the members of Inuvo's board of directors as
defendants. The D'Arcy action also named ConversionPoint and
various entities created to effect the Merger Transaction as
defendants.
On December 21, 2018, Domenic Spagnolo, another purported
stockholder of Inuvo, filed a substantially similar lawsuit,
captioned Spagnolo v. Inuvo, Inc. et al., No. 1:18-cv-12099, in the
United States District Court for the Southern District of New York.
This lawsuit also challenged the adequacy of disclosure under the
same sections of the Exchange Act against Inuvo and its directors.
Each of the foregoing lawsuits sought, among other relief, an
injunction preventing the parties from consummating the Merger
Transactions, damages in the event the Merger Transactions were
consummated, and an award of attorneys' fees.
In the Akerman action, following the filing of Parent's amended S-4
Registration Statement on March 15, 2019, Plaintiff Akerman filed a
stipulation of dismissal, dismissing the entire action, except with
respect to a fee and expense request.
In the Spagnolo action, the plaintiff withdrew his motion for
preliminary injunction following Parent's filing of its amended S-4
Registration Statement on March 15, 2019 and the court dismissed
the Spagnolo action as moot.
On January 4, 2019 and January 8, 2019, respectively, two more
purported stockholders of Inuvo, Adam Franchi and Les Thomas,
commenced substantially similar putative class action lawsuits
under Nevada state law, captioned Franchi v. Inuvo, Inc. et al.,
No. A-19-787021-C and Thomas v. Inuvo, Inc. et al., No. T19-57, in
the District Court of the State of Nevada in the County of Clark.
These complaints named Inuvo and the members of Inuvo's board of
directors as defendants.
The Franchi action also named ConversionPoint and various entities
created to effect the Merger Transactions as defendants. Both
complaints sought an injunction preventing the parties from
consummating the Merger Transactions, damages in the event the
Merger Transactions were consummated and an award of attorneys'
fees.
Following the filing of Parent's amended S-4 Registration Statement
on March 15, 2019, Plaintiff Thomas filed a stipulation of
dismissal, dismissing the action.
On April 11, 2019, Plaintiff Franchi filed a notice of voluntary
dismissal.
On June 20, 2019, Inuvo entered into a certain Confidential
Settlement Agreement resolving outstanding litigation (including
attorneys' fees claims) against Inuvo and ConversionPoint so long
as Inuvo pays a settlement fee by September 30, 2019. Should Inuvo
not pay the settlement fee on or before September 30, 2019, the
plaintiffs may pursue claims for attorneys' fees against Inuvo.
Inuvo, Inc., together with its subsidiaries, a technology company,
provides data-driven platforms that automatically identify and
message online audiences across video, mobile, connected TV,
display, and social and native devices, channels, and formats in
the United States. Inuvo, Inc. was incorporated in 1987 and is
headquartered in Little Rock, Arkansas.
JAGUAR HEALTH: Discovery in Plant Class Action Begins
-----------------------------------------------------
Discovery in the class action suit initiated by Tony Plant is now
proceeding after the court denied the Defendants' motion to dismiss
the second amended complaint on June 28, 2019, according to Jaguar
Health, Inc.'s Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2019.
On July 20, 2017, a putative class action complaint was filed in
the United States District Court, Northern District of California,
Civil Action No. 3:17-cv-04102, by Tony Plant (the "Plaintiff") on
behalf of shareholders of the Company who held shares on April 12,
2017 and were entitled to vote at the 2017 Special Shareholders
Meeting, against the Company and certain individuals who were
directors as of the date of the vote (collectively, the
"Defendants"), in a matter captioned Tony Plant v. Jaguar Animal
Health, Inc., et al., making claims arising under Section 14(a) and
Section 20(a) of the Exchange Act and Rule 14a-9, 17 C.F.R. Section
240.14a-9, promulgated thereunder by the SEC. The claims alleged
false and misleading information provided to investors in the Joint
Proxy Statement/Prospectus on Form S-4 (File No. 333-217364)
declared effective by the Commission on July 6, 2017 related to the
solicitation of votes from shareholders to approve the merger and
certain transactions related thereto.
The Company accepted service of the complaint and summons on behalf
of itself and the United States-based director Defendants on
November 1, 2017. The Company has not accepted service on behalf
of, and Plaintiff has not yet served, the non-U.S.-based director
Defendants.
On October 3, 2017, Plaintiff filed a motion seeking appointment as
lead plaintiff and appointment of Monteverde & Associates PC as
lead counsel. That motion was granted.
Plaintiff filed an amended complaint against the Company and the
United States-based director Defendants on January 10, 2018. The
Defendants filed a motion to dismiss on March 12, 2018, for which
oral arguments were held on June 14, 2018. The court dismissed the
amended complaint on September 20, 2018 but gave Plaintiff leave to
amend the complaint within 20 days from the date of dismissal.
On October 10, 2018, Plaintiff amended the complaint to focus on
the Company's commercial strategy in support of Equilevia and the
related disclosure statements in the Form S-4.
On November 6, 2018, the Defendants moved to dismiss the second
amended complaint. The Defendants argued in their motion that the
second amended complaint fails to state a claim upon which relief
can be granted because the omissions and misrepresentations alleged
in the complaint are immaterial as a matter of law.
The court denied the Defendants' motion to dismiss on June 28,
2019.
The defendants answered the second amended complaint on August 2,
2019. Discovery will now proceed.
The Company said, "If the Plaintiff were able to prove his
allegations in this matter and to establish the damages he asserts,
then an adverse ruling could have a material impact on the
Company."
The Company believes that it is not probable that an asset has been
impaired or a liability has been incurred as of the date of the
financial statements and the amount of any potential loss is not
reasonably estimable.
Jaguar Health, Inc., a commercial stage natural-products
pharmaceuticals company, focuses on developing gastrointestinal
products for human prescription use and animals worldwide. Jaguar
Health, Inc. is headquartered in San Francisco, California.
JEFFERSON CAPITAL: Alvarez Asserts Breach of FDCPA
--------------------------------------------------
A class action lawsuit has been filed against Jefferson Capital
Systems, LLC. The case is styled as Carlos Alvarez, individually
and on behalf of all others similarly situated, Plaintiff v.
Jefferson Capital Systems, LLC and John Does 1-25, Defendants, Case
No. 2:19-at-00761 (E.D. Cal., Aug. 21, 2019).
The docket of the case states the nature of suit as Consumer Credit
filed pursuant to the Fair Debt Collection Practices Act.
Jefferson Capital Systems, LLC is a debt collector.[BN]
The Plaintiff is represented by:
Jonathan Aaron Stieglitz, Esq.
Law Office of Jonathan A. Stieglitz
11845 W. Olympic Blvd., Suite 800
Los Angeles, CA 90064
Tel: (323) 979-2063
Fax: (323) 488-6748
Email: jonathan.a.stieglitz@gmail.com
JEFFERSON CAPITAL: Malolot Alleges Violation under FDCPA
--------------------------------------------------------
A class action lawsuit has been filed against Jefferson Capital
Systems, LLC. The case is styled as Gerry Malolot, individually and
on behalf of all others similarly situated, Plaintiff v. Cypress
Professional Services, Inc. d.b.a. Cypress Collection Services and
John Does 1-25, Defendants, Case No. 5:19-cv-05232 (N.D. Cal.,
Aug. 21, 2019).
The docket of the case states the nature of suit as Consumer Credit
filed pursuant to the Fair Debt Collection Practices Act.
Jefferson Capital Systems, LLC is a debt collector.[BN]
The Plaintiff is represented by:
Jonathan Aaron Stieglitz, Esq.
Law Office of Jonathan A. Stieglitz
11845 W. Olympic Blvd., Suite 800
Los Angeles, CA 90064
Tel: (323) 979-2063
Fax: (323) 488-6748
Email: jonathan.a.stieglitz@gmail.com
JOHNS HOPKINS: Settles ERISA Class Action for $14MM
---------------------------------------------------
Law360 reports that Johns Hopkins University has agreed to pay $14
million to end a proposed class action accusing the school of
violating the Employee Retirement Income Security Act by saddling
its retirement plan with hefty fees and maintaining expensive,
poorly performing investment options. Current and former Johns
Hopkins workers asked a Maryland federal judge on Aug. 6 to grant
preliminary approval of the settlement, which adds the
Baltimore-based university's name to a list of prestigious schools
that have reached settlements to resolve similar ERISA cases. [GN]
JONES GROUP: Diaz Alleges Violation under ADA
---------------------------------------------
The Jones Group, Inc. is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Edwin Diaz, on behalf of himself and all others similarly
situated, Plaintiff v. The Jones Group, Inc., Defendant, Case No.
1:19-cv-07850 (S.D. N.Y., Aug. 21, 2019).
The Jones Group Inc. designs and markets apparel and footwear. The
Company offers range of sportswear, suits, jeans, dresses, shoes,
sandals, handbags, and other accessories.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
JPMORGAN CHASE: Diaz Suit Seeks Unpaid Overtime Pay
---------------------------------------------------
Yesmin Diaz and all others similarly situated, Plaintiffs, v.
JPMorgan Chase Bank, N.A., Defendant, Case No. 19-cv-23256 (S.D.
Fla., August 5, 2019), seeks overtime compensation, liquidated
damages, reasonable attorneys' fees and costs of suit and for all
other appropriate relief including prejudgment interest under the
Fair Labor Standards Act.
Diaz worked as a mortgage loan officer for JPMorgan at their
Miami-Dade County branch. She seeks compensation at an overtime
rate for all of the hours she worked in excess of forty per week.
[BN]
Plaintiffs are represented by:
Jonathan S. Minick, Esq.
JONATHAN S. MINICK, P.A.
1850 SW 8th Street, Suite 307
Miami, Florida 33135
Phone: (786) 441-8909
Facsimile: (786) 523-0610
E-mail: jminick@jsmlawpa.com
JUDGMENT ACQUISITIONS: Roberts Alleges Wrongful Debt Collections
----------------------------------------------------------------
MARK ROBERTS, individually and on behalf of all others similarly
situated, Plaintiff v. JUDGMENT ACQUISITIONS UNLIMITED; and
CHAMPION FUNDING INC., Defendants, Case No. 1:19-cv-11722 (D.
Mass., Aug. 8, 2019) seeks to stop the Defendant's unfair and
unconscionable means to collect a debt.
Judgment Acquisitions Unlimited is a Massachusetts company engaged
as a collection agency. The company collects commercial, retail,
and judgment debts. [BN]
The Plaintiff is represented by:
Kevin V. K. Crick, Esq.
RIGHTS PROTECTION LAW GROUP, PLLC
100 Cambridge St., Suite 1400
Boston, MA 02114
Telephone: (844) 574-4487
Facsimile: (888) 622-3715
E-mail: k.crick@rightsprotect.com
- and -
James L. Davidson, Esq.
GREENWALD DAVIDSON RADBIL PLLC
7601 N. Federal Hwy., Suite A-230
Boca Raton, FL 33487
Telephone: (561) 826-5477
Facsimile: (561) 961-5684
E-mail: jdavidson@gdrlawfirm.com
KAISER FOUNDATION: Court Rules on Settlement Posture in Gamble Suit
-------------------------------------------------------------------
In the case, LUNELL GAMBLE, ET AL., Plaintiffs, v. KAISER
FOUNDATION HEALTH PLAN, INC., ET AL., Defendants, Case No.
17-cv-06621-YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of the
U.S. District Court for the Northern District of California (i)
denied the motion for an order requiring attorneys' fees to be
separately negotiated or determined by the Court in connection with
a settlement; and (ii) stayed the action.
Plaintiffs Gamble and Sheila Kennedy are the named Plaintiffs in
the putative class action alleging claims arising under Title VII,
42 U.S.C. Section 2000e et seq., and the California Fair Employment
and Housing Act ("FEHA"). The Plaintiffs bring the unusual motion
pursuant to Rule 16 of the Federal Rules of Civil Procedure and the
Court's inherent powers to control the conduct of attorneys who
appear in proceedings before it. They seek an order dictating in
advance the parameters of any settlement negotiations with the
Defendants. Perhaps more importantly, the motion requests that the
Court gives its imprimatur to the Plaintiffs' counsel's fee
agreement and confirms that it poses no conflict of interest with
the named Plaintiffs or the class.
The Plaintiffs' counsel has included in his fee agreement an
express assignment of rights to negotiate statutory fees separate
from the Plaintiffs' damages, as well as retention of the right to
agree to the settlement of statutory fees separate from his
clients. The Plaintiffs' counsel represents to the Court that,
because the Defendants insist on a waiver of statutory attorneys'
fees as part of any settlement, his clients would be obligated to
pay him twice his lodestar directly in the event of settlement per
the terms of his retainer agreement. The Plaintiffs' counsel seeks
the Court's determination whether the agreement creates a conflict
of interest. Indeed, during the April 22, 2019 case management
conference, the counsel indicated that he would not want to
continue with the case if the Court determined that the agreement
would put him in conflict with his clients.
Judge Rogers holds that no court has the authority to dictate the
terms of settlement, even of a class action. The Plaintiffs offer
no authority to support the relief they seek in this regard.
Therefore, she denied the Plaintiffs' motion for an order requiring
attorneys' fees to be separately negotiated or determined by the
Court in connection with a settlement.
Next, Judge Rogers finds that on its face, the retainer agreement's
provisions create a conflict of interest between the counsel and
the Plaintiffs, as well as the putative class, which would preclude
a finding that the counsel is adequate under Rule 23. First, the
retainer agreement states that any statutory attorneys' fees are
the property of the counsel. Second, the retainer agreement is
vague as to the exact nature of the rights assigned when it states:
"any attorneys' fees that may be recovered from the Defendants in
the case will belong to Attorneys, to whom Client assigns her
rights." Third, and more critically, the retainer agreement's
penalty for exercising the right to settle for a lump sum that
waives a statutory fee award -- paying twice the attorney's
lodestar regardless of whether it leaves the client with no
recovery -- does not appear on its face to be lawful under either
Evans v. Jeff D. or Flannery v. Prentice. Moreover, the notion
that the attorney may reject a settlement offer because the
attorney fees are insufficient is contrary to California ethics
rules.
The Judge holds that the apparent conflict extends farther than in
Ramirez v. Sturdevant. The retainer agreement requires that the
Plaintiffs allow settlement of attorneys' fees to be negotiated
separately from their damages, or else they forfeit the ability to
pay fees on a contingency basis, instead owing their attorney
double his full hourly rate. In the absence of evidence confirming
the clients knowingly consented to such a penalty, the Judge
presumes the clients here would be prejudiced by the conflict.
Regardless, the apparent conflict raises serious concerns as to the
Counsel's adequacy.
Judge Rogers therefore ordered that all proceedings, including any
pending discovery, are stayed. In light of the Plaintiffs'
counsel's representation that he does not want to continue if the
retainer agreement would create a conflict, the Plaintiffs will
file a statement with the Court no later than Aug. 23, 2019,
regarding their plan to proceed with the action. In addition, the
Plaintiffs' counsel will provide a copy of the Order to the
Plaintiffs and certify compliance.
She set a compliance hearing for 9:01 a.m. on Aug. 29, 2019. If
the Plaintiffs have filed their statement timely, the compliance
hearing will be vacated and no appearance will be required.
A full-text copy of the Court's July 19, 2019 Order is available at
https://is.gd/6v89Kt from Leagle.com.
Lunell Gamble & Sheila Kennedy, Plaintiffs, represented by Jeremy
L. Friedman, Law Offices of Jeremy L. Friedman.
Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals,
Inc. & The Permanente Medical Group, doing business as Kaiser
Permanente Medical Care Program, Defendants, represented by Heather
Ann Morgan -- heathermorgan@gbgllp.com -- GBG LLP, Tara Michelle
Duester -- taraduester@gbgllp.com -- GBG LLP & Amanda Bolliger --
amandabolliger@gbgllp.com -- GBG LLP.
KRUSE-WESTERN INC: Rule 26(f) Conference in Zavala ERISA Suit Nixed
-------------------------------------------------------------------
In the case, ARMANDO ZAVALA, individually and on behalf of all
others similarly situated, Plaintiff, v. KRUSE-WESTERN, INC., et
al., Defendants, Case No. 1:19-cv-00239-DAD-SKO (E.D. Cal.),
Magistrate Judge Sheila K. Oberto of the U.S. District Court for
the Eastern District of California denied the Plaintiff's motion to
compel to compel the Defendants to participate in a Rule 26(f)
conference.
On Feb. 2, 2019, the Plaintiff filed a civil enforcement action
pursuant to the Employee Retirement Income Security Act of 1974, as
amended, on behalf of himself and other participants in the Western
Milling Employee Stock Ownership Plan, arising out of the Nov. 4,
2015 sale of the Defendant's stock to the Plan for an allegedly
inflated value that resulted in the loss of tens of millions of
dollars to the Plan.
Before responsive pleading had been filed, the Plaintiff proposed
dates for a conference pursuant to Rule 26(f), which were rejected
by the Defendants as premature. The Defendants thereafter filed a
motion to dismiss on April 15, 2019, contending that the Plaintiff
failed to fulfill his pleading obligations as required under
Federal Rules of Civil Procedure 8(a)(2) and 10(b), and that his
complaint is nearly devoid of facts sufficient to make out a claim
upon which relief can be granted under Rule 12(b)(6). The hearing
on the motion to dismiss was held on July 16, 2019, after which the
assigned district judge took the motion under submission
Shortly after the motion to dismiss was filed, the Plaintiff
requested limited discovery from the Defendants, which was refused
on the ground that discovery should not proceed until the Motion to
Dismiss is resolved. On May 1, 2019, Judge Oberto, sua sponte,
continued the mandatory scheduling conference to Oct. 3, 2019, in
view of the pending motion to dismiss.
The parties met and conferred in writing and over the telephone
and, on May 15, 2019, determined that they were at an impasse
regarding whether to engage in a Rule 26(f) conference at this
time. The Plaintiff filed the instant motion to compel on May 28,
2019, and the parties submitted their "Joint Statement re Discovery
Dispute" setting forth their respective positions pursuant to Local
Rule 251 on July 10, 2019. The motion was taken under submission
on July 15, 2019.
Judge Oberto holds that in the absence of good cause, the
Plaintiff's efforts to conduct the Rule 26(f) conference, and
thereby pursue discovery, are premature. Moreover, she is
disinclined to find that the exercise of judicial economy in the
case constitutes an improper stay of discovery. Discovery cannot
be stayed until it is opened. It is not opened until the Rule
26(f) conference occurs. The Rule 26(f) conference will occur "as
soon as practicable" following the Court's ruling on the
Defendants' motion to dismiss, but in any event no later than Sept.
12, 2019, 21 days before the scheduling conference. Accordingly,
she denied the Plaintiff's motion to compel.
A full-text copy of the Court's July 17, 2019 Order is available at
https://is.gd/uUk80l from Leagle.com.
Armando Zavala, Plaintiff, represented by Mary J. Bortscheller --
mbortscheller@cohenmilstein.com -- Cohen Milstein Sellers & Toll,
pro hac vice, Michelle C. Yau -- myau@cohenmilstein.com -- Cohen
Milstein Sellers & Toll, pro hac vice, Nina R. Wasow --
nina@feinbergjackson.com -- Feinberg, Jackson, Worthman and Wasow
LLP & Daniel Mark Feinberg -- dan@feinbergjackson.com -- Feinberg
Jackson Worthman and Wason LLP.
Kruse-Western, Inc., Kevin Kruse & GreatBanc Trust Company,
Defendants, represented by Chelsea Ashbrook McCarthy --
chelsea.mccarthy@hklaw.com -- Holland & Knight LLP, pro hac vice,
Ian Blade Wieland -- ian@sw2law.com -- Sagaser, Watkins & Wieland,
PC & Lynn E. Calkins -- lynn.calkins@hklaw.com -- Holland & Knight
LLP, pro hac vice.
LADENBURG THALMANN: Class Cert. Bid in Miller Energy Litig. Pending
-------------------------------------------------------------------
Ladenburg Thalmann Financial Services Inc. said in its Form 10-Q
Report filed with the Securities and Exchange Commission on August
8, 2019, for the quarterly period ended June 30, 2019, that the
company and Miller Energy Resources, Inc. ("Miller") continue to
defend two class action suits in Tennessee.
In November 2015, two purported class action complaints were filed
in state court in Tennessee against Miller Energy Resources, Inc.
("Miller"), officers, directors, auditors and nine firms that
underwrote six securities offerings in 2013 and 2014, which
offerings raised approximately $151,000,000. Ladenburg was one of
the underwriters of two of the offerings.
The complaints allege, among other things, that the offering
materials were misleading based on the purportedly overstated
valuation of certain assets, and that the underwriters are liable
for violations of federal securities laws. The plaintiffs seek an
unspecified amount of compensatory damages, as well as other
relief.
In December 2015 the defendants removed the complaints to the U.S.
District Court for the Eastern District of Tennessee; in November
2016, the cases were consolidated. In August 2017, the court
granted in part and denied in part the underwriters' motion to
dismiss the complaint.
The plaintiffs' motions for class certification and to remand the
case to state court are pending. Ladenburg intends to vigorously
defend against these claims.
No further updates were provided in the Company's SEC report.
Ladenburg Thalmann Financial Services Inc. operates as a
diversified financial services company in the United States.
Ladenburg Thalmann Financial Services Inc. was founded in 1876 and
is headquartered in Miami, Florida.
LADENBURG THALMANN: Dismissal of Plains All American Litig. Upheld
------------------------------------------------------------------
Ladenburg Thalmann Financial Services Inc. said in its Form 10-Q
Report filed with the Securities and Exchange Commission on August
8, 2019, for the quarterly period ended June 30, 2019, that the
U.S. Court of Appeals for the Fifth Circuit has affirmed the
dismissal of the second amended complaint filed in the class action
suit against Plains All American Pipeline, L.P.
In January 2016, an amended complaint was filed in the U.S.
District Court for the Southern District of Texas against Plains
All American Pipeline, L.P. and related entities as well as their
officers and directors.
The amended complaint added Ladenburg and other underwriters of
securities offerings in 2013 and 2014 that in the aggregate raised
approximately $2,900,000 as defendants to the purported class
action. Ladenburg was one of the underwriters of the October 2013
initial public offering.
The complaint alleges, among other things, that the offering
materials were misleading based on representations concerning the
maintenance and integrity of the issuer's pipelines, and that the
underwriters are liable for violations of federal securities laws.
In April 2018, the court granted the defendants' motions to dismiss
the second amended complaint with prejudice and entered final
judgment for the defendants.
In July 2019 the U.S. Court of Appeals for the Fifth Circuit
affirmed the dismissal of the second amended complaint.
Ladenburg Thalmann Financial Services Inc. operates as a
diversified financial services company in the United States.
Ladenburg Thalmann Financial Services Inc. was founded in 1876 and
is headquartered in Miami, Florida.
LADENBURG THALMANN: Trial in ARCP Litigation Set for Jan. 2020
--------------------------------------------------------------
Ladenburg Thalmann Financial Services Inc. said in its Form 10-Q
Report filed with the Securities and Exchange Commission on August
8, 2019, for the quarterly period ended June 30, 2019, that trial
in the class action suit against American Realty Capital Partners,
Inc. ("ARCP"), has been scheduled to commence on January 2020.
In December 2014 and January 2015, two purported class action suits
were filed in the U.S. District Court for the Southern District of
New York against American Realty Capital Partners, Inc. ("ARCP"),
certain affiliated entities and individuals, ARCP's auditing firm,
and the underwriters of ARCP's May 2014 $1,656,000,000 common stock
offering ("May 2014 Offering") and three prior note offerings. The
complaints have been consolidated. Ladenburg was named as a
defendant as one of 17 underwriters of the May 2014 Offering and as
one of eight underwriters of ARCP's July 2013 offering of
$300,000,000 in convertible notes.
The complaint alleges, among other things, that the offering
materials were misleading based on financial reporting of expenses,
improperly-calculated AFFO (adjusted funds from operations), and
false and misleading Sarbanes-Oxley certifications, including
statements as to ARCP's internal controls, and that the
underwriters are liable for violations of federal securities laws.
The plaintiffs seek an unspecified amount of compensatory damages,
as well as other relief. In June 2016, the court denied the
underwriters' motions to dismiss the complaint. In August 2017, the
court granted the plaintiffs' motion for class certification.
Trial in the case is scheduled to commence in January 2020.
Ladenburg intends to vigorously defend against these claims.
Ladenburg Thalmann Financial Services Inc. operates as a
diversified financial services company in the United States.
Ladenburg Thalmann Financial Services Inc. was founded in 1876 and
is headquartered in Miami, Florida.
LEASE SUPERVISORS: Leave to File 1st, 2nd Amended Mallory Denied
----------------------------------------------------------------
In the case, DON MALLORY and TY FARRELL, Individually and on Behalf
of All Others Similarly Situated, Plaintiffs, v. LEASE SUPERVISORS,
LLC, Defendant, Civil Action No. 3:17-CV-3063-D (N.D. Tex.), Judge
Sidney A. Fitzwater of the U.S. District Court for the Northern
District of Texas, Dallas Division, denied the Plaintiffs' motions
for leave to file first and second amended complaints.
In November 2017, Mallory and Farrell brought the putative
collective action against Lease Supervisors, seeking unpaid
overtime pay under 29 U.S.C. Section 216(b). Mallory and Farrell
formerly worked as "plant operators/managers" for Lease
Supervisors. They contend that they and the other putative class
members were paid a "guaranteed payment" for the work they
performed for Lease Supervisors; that although they and the other
class members regularly worked between 60 and 80 hours per week,
they did not receive overtime pay for hours worked in excess of 40
hours per week; that they and the other class members did not
qualify for any applicable overtime exemptions under the FLSA; and,
therefore, that they and the other class members are owed unpaid
overtime wages under the FLSA.
Lease Supervisors answered the Plaintiffs' complaint on Jan. 26,
2018, and, shortly thereafter, Mallory and Farrell moved to
conditionally certify the suit as a collective action. On July 10,
2018, the Court denied the motion for conditional certification.
On Aug. 27, 2018 the Court issued its Phase Two Scheduling Order
that set Feb. 19, 2019 as the deadline for a party to move for
leave to amend the pleadings. On May 10, 2019, Mallory and Farrell
filed the instant motion for leave to file first amended complaint
in which they seek to add Ryan Hoerauf as a Defendant. Ten days
later, on May 20, 2019, Mallory and Farrell filed the instant
motion for leave to file second amended complaint in which they
seek to add Ryan C. Hoerauf, Inc., doing business as O'Ryan Oil &
Gas, as a Defendant.
Lease Supervisors opposes both motions, contending that Mallory and
Farrell have not shown good cause for the relief they seek. Both
of the Plaintiffs' motions were filed after the Feb. 19, 2019
deadline for a party to move for leave to amend the pleadings.
The Court assesses four factors when deciding whether to grant an
untimely motion for leave to amend under Rule 16(b)(4): "(1) the
explanation for the failure to timely move for leave to amend; (2)
the importance of the amendment; (3) potential prejudice in
allowing the amendment; and (4) the availability of a continuance
to cure such prejudice.
Judge Fitzwater considers first whether Mallory and Farrell have
satisfied the Rule 16(b)(4) good cause standard for their first
motion for leave to amend. She finds that Mallory and Farrell have
not addressed the Rule 16(b)(4) good cause standard in their first
motion for leave to amend. They have not filed a reply to Lease
Supervisors' opposition response and therefore have not replied to
its assertions that they have not satisfied the Rule 16(b)(4)
standard. Therefore, because they make no attempt to address the
good cause standard or the pertinent four-factor test, and the
grounds on which they rely to establish good cause are insufficient
to enable the Court to conduct the required analysis of the
pertinent factors, the Judge denies the first motion for leave to
amend.
The Judge next addresses whether Mallory and Farrell have satisfied
the Rule 16(b)(4) good cause standard with regard to their second
motion for leave to amend. As with their first motion for leave to
amend, she finds that Mallory and Farrell fail in their second
motion for leave to amend to address the pertinent four-part test.
In Lease Supervisors' opposition response brief, it notes this
inadequacy and presents extensive argument to support the premise
that Mallory and Farrell cannot meet the four-part test for good
cause under Rule 16(b)(4).
The Judge concludes that the Plaintiffs' explanation for failing to
timely move for leave to amend is not persuasive, and that the
first factor weighs against modifying the scheduling order to
enable them to move for leave to amend. The Plaintiffs' proposed
second amended complaint is not a class action complaint, and the
Plaintiffs state that they do not intend to file any other motions
for conditional certification.
Finally, Mallory and Farrell filed the lawsuit on Nov. 6, 2017.
They did not move for leave to amend the scheduling order for
purposes of adding parties until 18 months later. Even if the
court assumes that they did not possess all the evidence they
needed to determine their employers before the May 16, 2019 Rule
30(b)(6) deposition, they have failed to show that, exercising
reasonable diligence, they could not have reasonably determined who
their employers were and sought leave to amend to add them as
parties by the Feb. 19, 2019 deadline.
Accordingly, for the reasons she explained, Judge Fitzwater finds
that Mallory and Farrell have failed to demonstrate good cause
under Rule 16(b)(4) to amend the scheduling order, and their
motions for leave to file first and second amended complaints are
therefore denied.
A full-text copy of the Court's July 19, 2019 Memorandum Opinion
and Order is available at https://is.gd/jhb7mq from Leagle.com.
Don Mallory, Individually and on Behalf of All Others Similarly
Situated & Ty Farrell, Individually and on Behalf of All Others
Similarly Situated, Plaintiffs, represented by William S. Hommel,
Jr. -- bhommel@hommelfirm.com -- Hommel Law Firm & J. Derek
Braziel -- jdbraziel@l-b-law.com -- Lee & Braziel LLP.
Lease Supervisors LLC, Defendant, represented by R. Layne Rouse,
Shafer, Davis, O'Leary & Stoker & Stephen M. Steen, Jr., Shafer,
Davis, O'Leary & Stoker.
LG ELECTRONICS: Court Narrows Claims in Consolidated Hudock Suit
----------------------------------------------------------------
In the case, BREANN HUDOCK, IVAN VILLA LARA, EUGENE MANNACIO, and
BRIAN FLEISHMAN, individually and on behalf of all others similarly
situated, Plaintiffs, v. LG ELECTRONICS U.S.A., INC., BEST BUY CO.,
INC., BEST BUY STORES, L.P., and BESTBUY.COM, LLC, Defendants,
Civil No. 16-1220 (JRT/KMM) (D. Minn.), Judge John R. Tunheim of
the U.S. District Court for the District of Minnesota granted in
part and denied in part the Defendants' Motion to Dismiss the
Consolidated Amended Class Action Complaint.
The case arises from the Plaintiffs' purchases of LG-brand
televisions advertised to have higher refresh rates than they
actually did. The present case is a consolidation of two purported
class action cases: the Hudock Case (Civil No. 16-1220) and the
Villa Lara Case (Civil No. 17-5222). The Plaintiffs filed these
purported class actions against LG and Best Buy.
On May 9, 2016, the Hudocks filed a purported class action against
LG and Best Buy. They alleged eight claims: (1) violation of
Minnesota's Consumer Fraud Act ("MCFA"); (2) violation of
Minnesota's Uniform Deceptive Trade Practices Act ("MDTPA"); (3)
violation of Minnesota's Unlawful Trade Practices Act ("MUTPA");
(4) violation of New Jersey's Consumer Fraud Act ("NJCFA"); (5)
unjust enrichment; (6) breach of express warranty; (7) breach of
implied warranty; and (8) breach of contract.
The Defendants moved to dismiss the Complaint under Rules 12(b)(1)
and 12(b)(6). The Court dismissed the breach of contract claim
against LG with prejudice. It also found that Plaintiffs were
limited to injunctive relief under the MDTPA. Finally, the Court
dismissed the NJCFA claim without prejudice.
The Hudocks -- attempting to cure the NJCFA deficiencies -- filed
an amended complaint and added a new Plaintiff, Gerold DeLoss,
Hudock v. LG Elecs. U.S.A., Inc. ("Hudock II"), No. CV 16-1220
(JRT/FLN). The Defendants brought a renewed motion to dismiss the
amended complaint, which the Court ultimately denied.
Villa Lara, a California resident, purchased an LG television
advertised as having a 120Hz refresh rate when its actual refresh
rate was 60Hz. Villa Lara filed a putative class action, asserting
10 claims: (1) violation of the MCFA; (2) violation of the MDTPA;
(3) violation of the MUTPA; (4) violation of the NJCFA; (5)
violation of the California Legal Remedies Act ("CLRA"); (6)
violation of the California Unfair Competition Law ("CUCL"); (7)
breach of express warranty; (8) breach of implied warranty; (9)
breach of contract; and (10) unjust enrichment.
The Defendants moved to dismiss. The Court granted the motion as
to Villa Lara's fraud-based claims and as to the MDTPA claim except
to the extent it sought injunctive relief.
In February 2019, the Plaintiffs filed a Consolidated Class Action
Complaint, which consolidated the Hudock Case and the Villa Lara
Case. The Consolidated Complaint also added two class
representatives: Scott Poppen, an Illinois resident, and Eugene
Mannacio, a California resident, and new claims under the Illinois
Consumer Fraud Act ("ICFA").
The Defendants' present motion seeks to dismiss all claims by
Poppen and Mannacio, as well as new ICFA claims, for lack of
standing and failure to state a claim. They also note that they
are compelled to renew their prior arguments for dismissal to
preserve their appellate rights given the Plaintiffs have since
filed a single consolidated complaint; however, they clarify that
they are not seeking reconsideration of the Court's prior rulings
on their motions to dismiss.
After the briefing was complete on the present Motion to Dismiss,
the Plaintiffs filed their Amended Consolidated Class Action
Complaint. According to the parties, the 2d Consolidated Complaint
did not materially change the arguments at issue in the Motion; it
merely added two proposed class representatives, Piakanae Carpenter
and Brian Fleishman, whose claims are not at issue in the Motion to
Dismiss.
After the Defendants filed the Motion and the 2d Consolidated
Complaint, the Court dismissed Plaintiffs Hudock, DeLoss, Poppen,
and Piakanae Carpenter pursuant to the parties' stipulations.
Around February 2016, Mannacio purchased a television manufactured
by LG at a Best Buy in California. He purchased the television
relying on the representation but later learned that the refresh
rate was 120Hz. Had Mannacio known that the television did not
have the advertised refresh rate, he either would not have
purchased it or would not have been willing to pay as much as he
did. The Plaintiffs claim that the television Mannacio purchased
was worth 15-20% less than the 240Hz version he thought he was
buying.
The day before the Court's scheduled hearing on the Motion, the
Defendants filed a letter with the Court to inform the Court that
the parties agreed that the Motion could be decided on the parties'
written submissions. The Letter also clarified that numerous
arguments originally presented were moot and stated that the only
remaining issues for the Court to resolve consisted of arguments
that the Court had ruled on previously in deciding prior motions to
dismiss.
The Defendants renew their prior arguments regarding standing and
make them for the first time as to Mannacio and all new claims
brought by the remaining Plaintiffs. They also seek to dismiss the
2d Consolidated Complaint under Rule 12(b)(6) as implausible,
arguing that the complaint includes only labels and conclusions and
is insufficient to withstand Rule 12(b)(6) pleading requirements.
Judge Tunheim granted in part and denied in part the Defendants'
Motion to Dismiss the Consolidated Amended Class Action Complaint.
The Plaintiffs' MDTPA claim is dismissed to the extent it seeks
relief beyond injunctive relief. The Plaintiffs' breach of
contract claim is dismissed as against LG. Hudock's CLRA and CUCL
claims are also dismissed. Finally, the Plaintiffs' ICFA claims
are dismissed.
Among other things, the Judge finds that (i) the Plaintiffs present
no new arguments on their MDTPA claim; (ii) the Plaintiffs agree
that no breach of contract claim can be made against LG because
they did not make an offer for sale; (iii) the Plaintiffs agree
with the Defendants that, contrary to the language of the
Complaint, Hudock cannot assert California claims; and (iv) because
no Illinois Plaintiffs remain, the ICFA Claim should be dismissed.
A full-text copy of the Court's July 17, 2019 Order is available at
https://is.gd/sqAI1C from Leagle.com.
Benjamin Hudock, individually and on behalf of all others similarly
situated, Breann Hudock, individually and on behalf of all others
similarly situated & Gerald DeLoss, individually and on behalf of
all others similarly situated, Plaintiffs, represented by Alyssa
Leary -- alyssa.leary@zimmreed.com -- Zimmerman Reed, Daniel C.
Hedlund -- dhedlund@gustafsongluek.com
-- Gustafson Gluek PLLC, David M. Cialkowski --
david.cialkowski@zimmreed.com -- Zimmerman Reed, PLLP, Joseph C.
Bourne -- jbourne@gustafsongluek.com -- Gustafson Gluek PLLC & Luke
Hudock, Hudock Law Group, S.C., pro hac vice.
Brian Fleishman, Plaintiff, represented by Brittany N. Resch,
Gustafson Gluek PLLC, Daniel C. Hedlund, Gustafson Gluek PLLC &
Raina Borrelli, Gustafson Gluek PLLC.
LG Electronics U.S.A., Inc., Best Buy Co., Inc., Best Buy Stores,
L.P. & BestBuy.com, LLC, Defendants, represented by A. Elizabeth
Korchin -- elizabeth.korchin@hoganlovells.com -- Alicia Paller --
alicia.paller@hoganlovells.com -- John C. Mitchell -- Mitchell
Zamoff -- mitch.zamoff@hoganlovells.com -- Phoebe A. Wilkinson --
phoebe.wilkinson@hoganlovells.com -- at Hogan Lovells US LLP, pro
hac vice.
LIBERTY MUTUAL: Pennsylvania Court Denies Bid to Remand WCA Suit
----------------------------------------------------------------
Judge Cynthia M. Rufe of the U.S. District Court for the Eastern
District of Pennsylvania denied Excel's motion to remand the case,
EXCEL PHARMACY SERVICES, LLC, Individually and on behalf of all
others similarly situated, Plaintiff, v. LIBERTY MUTUAL INSURANCE
COMPANY, et al., Defendant, Civil Action No. 18-4804 (E.D. Pa.), to
the Philadelphia Court of Common Pleas.
Excel, acting on behalf of a proposed class, filed the action in
the Philadelphia Court of Common Pleas against Defendants Liberty
Mutual and related entities. Excel alleges that the Defendants
engaged in a systemic, years-long pattern of conduct in violation
of the Pennsylvania Workers' Compensation Act ("WCA") and Unfair
Insurance Practices Act ("UIPA") by refusing to reimburse Excel and
the members of the class for prescribed pharmaceuticals dispensed
to patients. Excel seeks a declaratory judgment that these actions
violated the WCA and UIPA.
Liberty Mutual removed the action to the Court. Excel now moves to
remand the case, arguing that the Court lacks subject matter
jurisdiction over the case because: (1) the amount in controversy
cannot be established, and (2) even if an amount in controversy can
be established, the Court should exercise its discretion and
decline to hear the case.
Judge Rufe finds that remand is unwarranted. First, Liberty Mutual
has produced evidence, not disputed by Excel, that it declined to
pay Excel more than $60,000 for prescriptions dispensed at the
rates that Excel alleges are mandated by Pennsylvania law. Liberty
Mutual also produced evidence that it declined to reimburse 28
potential class members more than three million dollars. The
proposed class comprises some 2,000 members, and thus by any
reasonable calculation the amount in controversy exceeds $5
million. Liberty Mutual has shown by a preponderance of the
evidence that the CAFA jurisdictional threshold has been met.
Second, the Plaintiff cannot prove to a legal certainty that the
amount in controversy is less than $5 million. Although Excel
argues that only declaratory relief is sought, a declaratory
judgment in favor of the proposed class would presumably have the
effect of requiring Defendants to reimburse the class members
indefinitely at higher rates than have been paid in the past.
Therefore, Excel cannot show that the value of the object of the
litigation is less than $5 million.
Finally, the Judge find that Excel has not established that
questions of the application of the WCA and UIPA in a particular
case are "peculiarly within the purview of the state's highest
court" and therefore unsuitable for determination by the Court.
Nor has Excel shown that other factors favor resolution of the case
in state court.
As diversity jurisdiction exists, and the case is properly heard in
the Court, Judge Rufe denied the the motion to remand. An
appropriate order will be entered.
A full-text copy of the Court's July 17, 2019 Memorandum Opinion is
available at https://is.gd/DPmCSe from Leagle.com.
EXCEL PHARMACY SERVICES, LLC, Plaintiff, represented by DAVID S.
SENOFF -- dsenoff@anapolweiss.com -- First Law Strategy Group, LLC
& HILLARY B. WEINSTEIN -- hweinstein@anapolweiss.com -- ANAPOL
WEISS.
LIBERTY MUTUAL INSURANCE COMPANY, LIBERTY MUTUAL GROUP, INC.,
AMERICAN STATES INSURANCE COMPANY, COLORADO CASUALTY COMPANY,
EMPLOYERS INS. CO. OF WAUSAU, EXCELSIOR INSURANCE COMPANY, LIBERTY
INSURANCE CORPORATION, LIBERTY MUTUAL FIRE INSURANCE COMPANY,
LIBERTY MUTUAL INSURANCE COMPANY CONSOLIDATED INSURANCE COMPANY,
LIBERTY NORTHWEST INSURANCE CORP., LM INSURANCE CORPORATION,
PEERLESS INDEMNITY INSURANCE COMPANY, PEERLESS INSURANCE & SAFECO
INSURANCE COMPANY OF ILLINOIS, Defendants, represented by FREDERICK
P. MARCZYK -- frederick.marczyk@dbr.com -- DRINKER BIDDLE & REATH &
TIMOTHY J. O'DRISCOLL -- timothy.odriscoll@dbr.com -- DRINKER,
BIDDLE AND REATH LLP.
LIFEVANTAGE CORP: Awaits Court Decision on Bid to Drop Smith Suit
-----------------------------------------------------------------
LifeVantage Corporation is awaiting the Court's decision regarding
the Company's motion to dismiss the class action suit entitled,
Smith v. LifeVantage Corp., according to the company's recent
regulatory filing with the Securities and Exchange Commission.
On January 24, 2018, a purported class action was filed in the
United States District Court for the District of Connecticut,
entitled Smith v. LifeVantage Corp., Case No. 3:18-cv-a35 (D.
Connecticut filed Jan. 24, 2018). In this action, plaintiff alleged
that the Company, its Chief Executive Officer, Chief Sales Officer
and Chief Marketing Officer operated a pyramid scheme in violation
of a variety of federal and state statutes, including RICO and the
Connecticut Unfair Trade Practices Act.
On April 16, 2018, the Company filed motions with the court to
dismiss the complaint against LifeVantage, dismiss the complaint
against the Company's executives, transfer the venue of the case
from the State of Connecticut to the State of Utah, and contest
class certification.
On July 23, 2018, the parties filed a stipulation with the Court
agreeing to transfer the case to the Federal District Court for
Utah.
On September 20, 2018, Plaintiffs filed an amended complaint in
Utah. As per the parties stipulated agreement, plaintiff's amended
complaint dropped the RICO and Connecticut state law claims and
removed the Company's Chief Sales Officer and Chief Marketing
Officer as individual defendants (the Chief Executive Officer
remains a defendant in the case). However, the amended complaint
adds a new antitrust claim, alleging that the Company fraudulently
obtained patents for its products and is attempting to use those
patents in an anti-competitive manner.
LifeVantage filed a Motion to Dismiss the amended complaint on
November 5, 2018, Plaintiffs filed a response to LifeVantage's
Motion to Dismiss on December 17, 2018, and LifeVantage filed a
reply brief on January 10, 2019.
With the matter now being fully briefed, the Court can issue a
ruling based on the briefs submitted by the parties or schedule a
hearing for oral argument before entering a decision on the
motion.
LifeVantage said, "The Company has not established a loss
contingency accrual for this lawsuit as it believes liability is
not probable or estimable, and the Company plans to vigorously
defend against this lawsuit. Nonetheless, an unfavorable
resolution of this matter could have a material adverse effect on
the Company's business, results of operations or financial
condition."
LifeVantage Corporation engages in the identification, research,
development, and distribution of nutraceutical dietary supplements
and skin care products. The company sells its products through a
direct sales model, as well as a network of independent
distributors in the United States, Japan, Hong Kong, Australia,
Canada, Mexico, Thailand, the United Kingdom, the Netherlands,
Germany, Spain, and Taiwan. LifeVantage Corporation is
headquartered in Sandy, Utah.
LINDEN BULK: Castro Seeks Unpaid Wages for Truck Drivers
--------------------------------------------------------
WERNY CASTRO, On behalf of himself and all other similarly situated
persons, the Plaintiff, vs. LINDEN BULK TRANSPORTATION LLC a/k/a
ODYSSEY LBT LLC a/k/a LINDEN BULK TRANSPORTATION CO., INC. a/k/a
LINDEN TRANSPORTATION INTERNATIONAL, LLC a/k/a LINDEN MOTOR FREIGHT
CO., INC. a/k/a LINDEN LOGISTICS COMPANY, INC. a/k/a LBT INTERMODAL
LLC, a subsidiary of ODYSSEY LOGISTICS & TECHNOLOGY CORP.; LBT
SERVICES LLC a/o M&S LEASING CO., L.L.C. a/o M&S LEASING HOLDING
COMPANY, L.L.C. a/o M&S LEASING CO. II, LLC a/o M&S HOLDINGS, LLC;
and ABC CORPS. 1-10 and JOHN/JANE DOES 1-10, the Defendants, Case
No. ESX-L-006141-19 (N.J. Super., Aug. 21, 2019), alleges that
Plaintiff and the putative class members were misclassified as
independent contractors by Defendants and consequently seek to
recover significant economic damages sustained as a result of
Defendants' unlawful withholdings or deductions from, and/or
unlawful diversions of, their wages and compensation in violation
of the New Jersey Wage Payment Law
Based on their misclassification, they have also been required to
pay large fees in order to obtain truck driving work from
Defendants, which effectively amounts to Defendants charging them
for a job. They have also had numerous improper deductions taken
from their pay and they have been required to pay the expenses
necessary to perform their jobs, the lawsuit says.
The Plaintiff is employed by Defendants as a truck driver.
Linden Bulk delivers cargo that includes liquids, chemicals, gasses
and intermodal containers from its facility/lot located on Tremley
Point Road in Linden, New Jersey to various ports in New Jersey,
including but not limited to, the Port Newark Container Terminal
located in the City of Newark in the County of Essex in the State
of New Jersey.[BN]
Attorneys for the Plaintiff and All Other Similarly Situated
Persons are:
Ravi Sattiraju, Esq.
THE SATTIRAJU LAW FIRM, P.C.
116 Village Boulevard, Suite 200
Princeton, NJ 08540
Telephone: (609) 799-1266
Facsimile: (609) 228-5649
E-mail: rsattiraju@sattirajulawfirm.com
MALCOLM S GERALD: Holzman Moves to Certify FDCPA/FCCPA Class
------------------------------------------------------------
The Plaintiff in the lawsuit entitled STEPHEN HOLZMAN, on behalf of
himself and all others similarly situated v. MALCOLM S. GERALD &
ASSOCIATES, INC. and LVNV FUNDING, LLC, Case No. 9:16-cv-80643-RS
(S.D. Fla.), asks the Court to certify a class defined as:
All individuals to whom MGA, between April 22, 2015 and
April 22, 2016, and in an attempt to collect a debt owed to
LVNV, sent a letter at an address located in the State of
Florida based on the same template used to create the letter
filed as an exhibit to the complaint in this action (Doc.
1-4) and where the "Charge Off Date" shown in the letter
preceded the date of the letter by more than five years.
The lawsuit is brought for claims under the Fair Debt Collection
Practices Act and the Florida Consumer Collection Practices Act.
Mr. Holzman further moves the Court to appoint him as the
representative of the Class and to appoint Alex Weisberg, Esq., of
the Weisberg Consumer Law Group and David N. McDevitt, Esq., of the
Thompson Consumer Law Group as counsel for the Class.[CC]
The Plaintiff is represented by:
Alex D. Weisberg, Esq.
WEISBERG CONSUMER LAW GROUP, PA
5846 S. Flamingo Rd., Suite 290
Cooper City, FL 33330
Telephone: (954) 212-2184
Facsimile: (866) 577-0963
E-mail: aweisberg@afclaw.com
The Defendants are represented by:
Dale T. Golden, Esq.
Charles J. McHale, Esq.
GOLDEN SCAZ GAGAIN, PLLC
201 North Armenia Avenue
Tampa, FL 33609-2303
Telephone: (813) 251-5500
Facsimile: (813) 251-3675
E-mail: dgolden@gsgfirm.com
cmchale@gsgfirm.com
MALLINCKRODT PLC: Continues to Defend Strougo Class Suit
--------------------------------------------------------
Mallinckrodt plc said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 6, 2019, for the
quarterly period ended June 28, 2019, that the company continues to
defend a putative class action suit entitled, Barbara Strougo v.
Mallinckrodt plc, et al.
On July 26, 2019, a putative class action lawsuit was filed against
the Company, its Chief Executive Officer ("CEO"), its Chief
Financial Officer ("CFO") Bryan M. Reasons, its former Interim CFO
George A. Kegler and its former CFO Matthew K. Harbaugh, in the
U.S. District Court for the Southern District of New York,
captioned Barbara Strougo v. Mallinckrodt plc, et al.
The complaint purports to be brought on behalf of all persons who
purchased or otherwise acquired Mallinckrodt's securities between
February 28, 2018 and July 16, 2019.
The lawsuit generally alleges that the defendants made false and
misleading statements in violation of Sections 10(b) and 20(a) of
the Exchange Act and Rule 10b-5 promulgated thereunder related to
the Company's clinical study designed to assess the efficacy and
safety of its Acthar Gel in patients with amyotrophic lateral
sclerosis.
The lawsuit seeks monetary damages in an unspecified amount.
The Company intends to vigorously defend itself in this matter.
Mallinckrodt plc, together with its subsidiaries, develops,
manufactures, markets, and distributes specialty pharmaceutical
products and therapies in the United States, Europe, the Middle
East, Africa, and internationally. It operates in two segments,
Specialty Brands, and Specialty Generics and Amitiza. The company
was founded in 1867 and is based in Staines-Upon-Thames, the United
Kingdom.
MANOLO BLAHNIK: Diaz Asserts Breach of Disabilities Act
-------------------------------------------------------
Manolo Blahnik USA, Ltd. is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Edwin Diaz, on behalf of himself and all others similarly
situated, Plaintiff v. Manolo Blahnik USA, Ltd., Defendant, Case
No. 1:19-cv-07853 (S.D. N.Y., Aug. 21, 2019).
Manolo Blahnik USA, Ltd. is a shop selling women's shoes at Saks
Fifth Avenue.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
MAXIMUS INC: Dismissal of Virginia Class Action Upheld
------------------------------------------------------
Maximus, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 8, 2019, for the
quarterly period ended June 30, 2019, that the U.S. Court of
Appeals for the Fourth Circuit has affirmed the decision of the
U.S. District Court for the Eastern District of Virginia dismissing
a class action.
In August 2017, the Company and certain officers were named as
defendants in a putative class action lawsuit filed in the U.S.
District Court for the Eastern District of Virginia.
The plaintiff alleged the defendants made a variety of materially
false and misleading statements, or failed to disclose material
information, concerning the status of the Company's Health
Assessment Advisory Service project for the U.K. Department for
Work and Pensions from the period of October 20, 2014, through
February 3, 2016.
In August 2018, the company's motion to dismiss the case was
granted, and the case was dismissed.
In October 2018, the plaintiffs filed a notice of appeal to the
U.S. Circuit Court for the Fourth Circuit.
In June 2019, the appeals court affirmed the decision of the
District Court, and the matter has concluded.
Maximus, Inc. provides business process services (BPS) to
government health and human services programs worldwide. Maximus,
Inc. was founded in 1975 and is headquartered in Reston, Virginia.
MCCLATCHY CO: Trial in Sawin Class Action Ongoing
-------------------------------------------------
The McClatchy Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 8, 2019, for the
quarterly period ended June 30, 2019, that trial in Sawin v. The
McClatchy Company, is ongoing.
In December 2008, carriers of The Fresno Bee filed a class action
lawsuit against the company and The Fresno Bee in the Superior
Court of the State of California in Fresno County captioned Becerra
v. The McClatchy Company ("Fresno case") alleging that the carriers
were misclassified as independent contractors and seeking mileage
reimbursement.
In February 2009, a substantially similar lawsuit, Sawin v. The
McClatchy Company, involving similar allegations was filed by
carriers of The Sacramento Bee ("Sacramento case") in the Superior
Court of the State of California in Sacramento County. The class
consists of roughly 5,000 carriers in the Sacramento case and 3,500
carriers in the Fresno case.
The plaintiffs in both cases are seeking unspecified restitution
for mileage reimbursement. With respect to the Sacramento case, in
September 2013, all wage and hour claims were dismissed, and the
only remaining claim is an equitable claim for mileage
reimbursement under the California Civil Code.
In the Fresno case, in March 2014, all wage and hour claims were
dismissed, and the only remaining claim is an equitable claim for
mileage reimbursement under the California Civil Code.
The court in the Sacramento case trifurcated the trial into three
separate phases, independent contractor status, liability and
restitution. On September 22, 2014, the court in the Sacramento
case issued a tentative decision following the first phase, finding
that the carriers that contracted directly with The Sacramento Bee
during the period from February 2005 to July 2009 were
misclassified as independent contractors.
The company objected to the tentative decision, but the court
ultimately adopted it as final. In June 2016, The McClatchy Company
was dismissed from the lawsuit, leaving The Sacramento Bee as the
sole defendant.
On August 30, 2017, the court issued a statement of decision ruling
that the court would not hold a phase two trial but would, instead,
assume liability from the evidence previously submitted and from
the independent contractor agreements. The company objected to this
decision, but the court adopted it as final. The third phase began
on June 20, 2019, and is ongoing.
The court in the Fresno case bifurcated the trial into two separate
phases: the first phase addressed independent contractor status and
liability for mileage reimbursement and the second phase was
designated to address restitution, if any. The first phase of the
Fresno case began in the fourth quarter of 2014 and concluded in
late March 2015.
On April 14, 2016, the court in the Fresno case issued a statement
of final decision in favor of the company and The Fresno Bee.
Accordingly, there will be no second phase. The plaintiffs filed a
Notice of Appeal on November 10, 2016.
The company continues to defend these actions vigorously and expect
that it will ultimately prevail.
The McClatchy said, "As a result, we have not established a reserve
in connection with the cases. While we believe that a material
impact on our condensed consolidated financial position, results of
operations or cash flows from these claims is unlikely, given the
inherent uncertainty of litigation, a possibility exists that
future adverse rulings or unfavorable developments could result in
future charges that could have a material impact. We have and will
continue to periodically reexamine our estimates of probable
liabilities and any associated expenses and make appropriate
adjustments to such estimates based on experience and developments
in litigation."
The McClatchy Company provides news and advertising services in
digital and print formats in the United States. Its publications
include the Miami Herald, The Kansas City Star, The Sacramento Bee,
The Charlotte Observer, The (Raleigh) News and Observer, The (Fort
Worth) Star-Telegram, and The (Durham, NC) Herald-Sun. The
McClatchy Company was founded in 1857 and is headquartered in
Sacramento, California.
MCDONALD'S CORP: Turner Alleges Illegal Hiring Practices
--------------------------------------------------------
STEPHANIE TURNER, on behalf of herself and all others similarly
situated, the Plaintiff, vs. McDONALD'S USA, LLC, a Delaware
limited liability company, and McDONALD'S CORPORATION, a Delaware
corporation, the Defendants, Case No. 1:19-cv-05524 (N.D. Ill.,
Aug. 15, 2019), challenges under the Sherman Act, the
no-solicitation and no-hiring contract, combination, or conspiracy
between and among Defendants McDonald's USA, LLC, McDonald's
Corporation, and their franchisees, pursuant to which McDonald's
and the franchisees agreed not to recruit or hire each other's
employees.
McDonald's, at its principal place of business formerly located in
Oak Brook, Illinois, was intimately involved in forming,
monitoring, and enforcing this anti-competitive contract,
combination, or conspiracy. McDonald's orchestrated, dispersed, and
enforced the agreement among itself and all franchisees, at least
in part, through an explicit contractual prohibition contained in
standard McDonald's franchise agreements. That standard agreement
was executed by McDonald's and by franchisees alike -- at least up
until sometime in 2017.
The practice at issue reflects a naked horizontal restraint of
competition in the form of a market allocation agreement, a
category of restraint long held to be per se unlawful under the
antitrust laws. The agreement was not reasonably necessary to, and
did not contribute to the success of, any legitimate procompetitive
benefit or joint venture, nor did it promote enterprise or
productivity when it was adopted or at any time since.
The Plaintiff and the Class are current and former employees of
McDonald's-branded restaurants operated by McDonald's or a
McDonald's franchisee. The Plaintiff and the Class have suffered
depressed wages and benefits and diminished opportunities as a
result of the unlawful agreement.
McDonald's is the world's leading global food service retailer with
over 36,000 locations in over 100 countries. More than 80% of
McDonald's restaurants worldwide are franchise businesses that are
independently owned and operated, and are separate and distinct
entities from McDonald's.[BN]
Attorneys the Plaintiff are:
Derek Y. Brandt, Esq.
Leigh M. Perica, Esq.
MCCUNE WRIGHT AREVALO, LLP
101 West Vandalia Street, Suite 200
Edwardsville, Illinois 62025
Telephone: (618) 307-6116
Facsimile: (618) 307-6161
E-mail: dyb@mccunewright.com
lmp@mccunewright.com
- and -
Richard D. McCune, Esq.
Michele M. Vercoski, Esq.
MCCUNE WRIGHT AREVALO, LLP
3281 E. Guasti Road, Suite 100
Ontario, CA 91761
Telephone: (909) 557-1250
Facsimile: (909) 557-1275
E-mail: rdm@mccunewright.com
mmv@mccunewright.com
- and -
Dean Harvey, Esq.
Anne B. Shaver, Esq.
Lin Y. Chan, Esq.
Yaman Salahi, Esq.
Jeremy J. Pilaar, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: 415 956 1000
E-mail: dharvey@lchb.com
ashaver@lchb.com
lchan@lchb.com
ysalahi@lchb.com
jpilaar@lchb.com
- and -
Walter W. Noss, Esq.
Stephanie A. Hackett, Esq.
Sean C. Russell, Esq.
Michelle E. Conston, Esq.
SCOTT+SCOTT, ATTORNEYS AT LAW, LLP
600 West Broadway, Suite 3300
San Diego, CA 92101
Telephone: 619-233-4565
E-mail: wnoss@scott-scott.com
shackett@scott-scott.com
sean.russell@scott-scott.com
mconston@scott-scott.com
MDL 2437: Court Denies Summary Judgment Bid in Antitrust Suit
-------------------------------------------------------------
In the case, IN RE: DOMESTIC DRYWALL ANTITRUST LITIGATION. THIS
DOCUMENT RELATES TO: Ashton Woods Holdings LLC, et al., Plaintiffs,
v. USG Corp., et al., Defendants, Civil Action No. 15-cv-1712, MDL
No. 13-2437 (E.D. Pa.), Judge Michael M. Baylson of the U.S.
District Court for the Eastern District of Pennsylvania granted in
part and denied in part USG Corp., United States Gypsum Co., and
L&W Supply Corp.'s Motion for Summary Judgment.
Before the Court is the summary judgment motion of the USG
Defendants. In the multidistrict litigation involving the alleged
price fixing of gypsum wallboard (drywall), the Court has, in a
related class action, addressed summary judgment motions of other
defendant wallboard manufacturers alleged to be part of the same
price-fixing conspiracy as the USG Defendants. At that time,
however, the USG Defendants had settled with the class Plaintiffs.
Therefore, its participation, or lack thereof, in the alleged
price-fixing conspiracy was not subject to analysis by the Court.
The motion arises in an action by 12 large homebuilders against
seven Defendants for violations of the Sherman Act. There are
currently four remaining Defendants -- the USG Defendants and PABCO
Building Products, LLC.
In February 2016, the Court addressed some of the Defendants'
summary judgment motions, denying the motions of Defendants
American, National, Lafarge, and PABCO, and granting the motion of
defendant CertainTeed. At that point, the USG Defendants had
settled with the class Plaintiffs, and thus the Court did not
consider traditional conspiracy evidence involving them.
The USG Defendants filed a motion for summary judgment in the
homebuilder action on May 31, 2018. The Plaintiffs filed a Motion
to Strike on June 25, 2018 contending that USG was central to the
Court's 2016 summary judgment opinion. The USG Defendants
responded to the Plaintiffs' Motion to Strike, asserting that it
had never had the chance to challenge the evidence against it under
the summary judgment standard
On Oct. 11, 2018, the Court denied the Plaintiffs' Motion to
Strike, and ordered that they respond to the USG Defendants' Motion
for Summary judgment. The Plaintiffs did so on Nov. 9, 2018. The
USG Defendants replied on Dec. 3, 2018.
On Jan. 17, 2019, the Court sent the parties a proposed factual
chronology which was an attempt "to fairly and accurately input all
of the relevant facts asserted by both parties in their recent
submissions." In accordance with that Order, both parties
submitted suggested modifications to the chronology on Feb. 7,
2019.
The Court held oral argument on March 12, 2019 on the USG
Defendants' motion and other pending motions for summary judgment.
Following oral argument, on April 12, 2019, both parties submitted
supplemental briefs addressing issues raised during oral argument,
and responded to each other's suggested modifications to the
factual chronology.
The USG Defendants assert that summary judgment should be granted
in their favor because (1) the timing and content of its pricing
letters reflect independent decision-making; (2) there is no
evidence of a conspiratorial communications between Gypsum and L&W;
(3) Gypsum's communications with analysts are insufficient to send
the question of conspiracy to a jury; and (4) Gypsum's controlled
distribution policy served its own interests. The Defendants also
points out that the Plaintiffs have not distinguished between USG
Corp. and Gypsum in their substantive allegations but instead refer
to them collectively as USG.
The Plaintiffs respond by first arguing that the Court has already
been presented with sufficient evidence, including "traditional
conspiracy" evidence, of Gypsum's participation in the alleged
price-fixing conspiracy, and that the Court relied on this evidence
in denying summary judgment to other defendants in the class case.
They also assert that Gypsum engaged in "extensive inter-corporate
communications with their competitors," and that the evidence does
not support Gypsum's framing of their price letter as a result of
"independent decision making." The Plaintiffs argue that the facts
tying Gypsum to the alleged conspiracy are "significantly stronger"
than those tying CertainTeed to the alleged conspiracy. Finally,
they argue that the USG Defendants -- which include USG Corp.,
United States Gypsum, and L&W Supply Corp. -- were at all relevant
times considered one company by the market.
Based on the preceding exhaustive examination of the evidence,
Judge Baylson concludes that the Court is duty-bound to consider
each of the three corporations moving for summary judgment
separately, in spite of the Plaintiffs' assertion that the three
entities should be treated as one.
It is clear that there is minimal, if any, evidence that USG Corp.,
the parent corporation, has been directly involved in
communications with competitors regarding prices. The Judge finds
no evidence to support a conspiracy charge against USG Corp., and
for the reasons that the Court granted summary judgment in favor of
CertainTeed, the Judge will grant summary judgment in favor of USG
Corp.
As to Gypsum, the record is clear that it was involved in both
manufacturing and selling domestic drywall to a variety of
companies, primarily to distributors. The Judge finds that there
is some evidence of potential contact between Gypsum employees and
competitors at trade meetings, but the Plaintiffs have failed to
produce evidence showing that those potential communications
regarded pricing. Gypsum made several efforts, in April 2010, May
2011, and July 2011, to raise its own prices and end job quotes,
but its competitors failed to follow through and Gypsum had to
retreat.
The Judge has carefully examined the "traditional conspiracy
evidence," and concludes that although there is a "smattering" of
communications, that somewhat differentiate Gypsum from
CertainTeed, there was less quantum and less quality evidence
against Gypsum compared to American, National, PABCO, and LaFarge.
Further, the evidence presented by the Plaintiffs fails to show
that Gypsum was acting against its self-interest, and several of
its pricing decisions and implementations were different from its
competitors.
In addition, applying the most recent Third Circuit decision on
price-fixing in oligopolistic markets, Valspar Corp. v. E.I. Du
Pont De Nemours & Co., the Judge must hesitate rather significantly
in assessing the evidence because in that case, the court affirmed
the grant of summary judgment in favor of the defendants, and the
Court is unable to conclude that the Plaintiffs have made showings
that are significantly different than the showings that were made
against the defendant in Valspar. Furthermore, there is no
evidence that Gypsum used Longbow or Kathryn Thompson, industry
analysts, and sometimes communicators of pricing decisions amongst
the Defendants, as a conduit to join in an agreement to fix
prices.
The Judge cannot say that the Plaintiffs have presented evidence
that Gypsum's decision to end job quotes was conspiratorial and the
evidence against Gypsum on this issue is also significantly less
persuasive than the Court found as to Gypsum's competitors,
American, National, PABCO, and LaFarge. For these reasons,
although it a close case, the Judge has determined that the
Plaintiffs have not shown a genuine issue of disputed fact
sufficient to warrant a jury finding in favor of the Plaintiffs
against Gypsum.
As to L&W, he recognizes it is a sister corporation to Gypsum and
is wholly owned by USG Corp. L&W was not a manufacturer, but was
one of the major national drywall distributors. In this position,
it was natural and expected for L&W to be communicating with
competitors of Gypsum because L&W was also a customer of these
competitors.
Based upon on the summary judgment papers, the Judge cannot
determine as a matter of law that the communications L&W had with
co-defendants were purely communications pertaining to sales that
were part of L&W's principal business, and were not conspiratorial
in nature. There is some evidence upon which a jury might find
that L&W acted as a "conduit" of pricing information. This
finding, although not sufficient in and of itself to prove an
agreement, could be part of a mosaic of evidence that may be
sufficient to warrant a finding that L&W had reached agreement with
its co-Defendants.
The Judge recognizes that L&W, because it was not a manufacturer of
drywall, may have had less of a motive or interest to fix prices
than its co-defendants. However, given L&W's position as a sister
corporation with Gypsum, and within the USG corporate family, there
is some evidence from which a jury could find a motive for L&W to
be supportive of the price increases that had been agreed to by the
other Defendants. L&W's position in the drywall industry as being
only a distributor and not a manufacturer does not insulate it from
liability for assisting in a price-fixing agreement entered into by
other competitors. The Judge recognizes that L&W may have very
significant defenses, but cannot grant summary judgment based on
the evidence of record summarized.
Based on the foregoing, Judge Baylson granted in part and denied in
part USG Defendants' Motion for Summary Judgment.
A full-text copy of the Court's July 19, 2019 Memorandum is
available at https://is.gd/4I4SGX from Leagle.com.
MDL 2885: Vega Suit over Combat Arms Earplugs Consolidated
----------------------------------------------------------
The class action lawsuit titled ANGEL LUIS DUMONT VEGA,
Individually and on Behalf of All Others Similarly Situated,
Plaintiff, v. 3M COMPANY, the Defendants, Case No. 3:19-cv-01723
(Filed July 26, 2019), was transferred from the U.S. District Court
for the District of Puerto Rico, to the U.S. District Court for the
Northern District of Florida (Pensacola) on Aug. 20, 2019. The
Northern District of Florida Court Clerk assigned Case No.
3:19-cv-03179-MCR-GRJ to the proceeding.
The Plaintiff seeks to hold 3M liable for hearing loss or damage
Plaintiffs allegedly suffered while serving variously in the U.S.
military, including during foreign conflicts. The Plaintiff
contends that Combat Arms TM Earplugs, Version 2 ("CAEv2")
manufactured and sold by Aearo were defectively designed and failed
to provide adequate hearing protection.
3M denies these allegations. CAEv2, designed by Aearo in close
collaboration with the U.S. military, represented a revolutionary
breakthrough in hearing protection for service members. CAEv2
helped servicemembers better maintain situational awareness (e.g.,
to hear nearby voice commands) while also maintaining some
protection from gunfire and other higher decibel sounds. 3M claims
CAEv2 met the U.S. military's specifications and helped the
military provide hearing protection to service members.
The Vega case is being consolidated with MDL 2885 in re: 3M Combat
Arms Earplug Products Liability Litigation. The MDL was created by
Order of the United States Judicial Panel on Multidistrict
Litigation on April 3, 2019. These actions share common factual
questions and centralization will eliminate duplicative discovery;
prevent inconsistent pretrial rulings on Daubert issues and other
pretrial matters; and conserve the resources of the parties, their
counsel, and the judiciary.
In the April 3, 2019 Order, the MDL Panel found that the actions in
this MDL involve common questions arising out of allegations that
the Defendants' Combat Arms earplugs were defective, causing
plaintiffs to develop hearing loss and/or tinnitus. Issues
concerning the design, testing, sale, and marketing of the Combat
Arms earplugs are common to all actions. Presiding Judge in the MDL
is Hon. Judge M. Casey Rodgers. The lead case is
3:19-md-02885-MCR-GRJ.[BN]
Attorneys for the Plaintiff are:
William Rivera Velez, Esq.
P.O. Box 191059
San Juan, PR 00919
Telephone: (787) 620-2856
Facsimile. (787) 777-1589
E-mail: wrvlaw@gmail.com
- and -
Gregory F. Cox, Esq.
Michael A. Burns, Esq.
Caroline L. Maida, Esq.
MOSTYN LAW FIRM
1509 Lopez Landron
Piso 12, Suite 2
San Juan, PR 00911
Telephone: 787-886-2748
Facsimile: 844-270-4288
E-mail: gfcdocketefile@mostynlaw.com
epefile@mostynlaw.com
- and -
Bryan Aylstock, Esq.
AYLSTOCK, WITKIN, KREIS, & OVERHOLTZ, PLLC
17 E. Main Street, Suite 200
Pensacola, FL 32502
Telephone: (850) 202-1010
Facsimile: (850) 916-7449
E-mail: baylstock@awkolaw.com
MDL 2903: Willis Suit over Rock 'N Play Sleeper Consolidated
------------------------------------------------------------
The case, Josie Willis, the Plaintiff. vs. Fisher-Price, Inc. and
Mattel, Inc., the Defendants, Case No. 3:19-cv-00670 (Filed Aug. 5,
2019) was transferred from the U.S. District Court for the Middle
District of Tennessee, to U.S. District Court for the Western
District of New York (Buffalo) on Aug. 21, 2019. The Western
District of New York Court Clerk assigned Case No.
1:19-cv-01107-GWC to the proceeding. The case is assigned to the
Hon. Geoffrey Crawford.
The Willis case is being consolidated with MDL 2903 in re:
FISHER-PRICE ROCK 'N PLAY SLEEPER MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION. The MDL was created by Order of the
United States Judicial Panel on Multidistrict Litigation on August
1, 2019. These actions share factual questions arising from
allegations that FisherPrice's Rock 'n Play Sleeper (RNPS) is
unsafe because, among other reasons, its angled design does not
allow infants to sleep in a supine position, which allegedly
increases the risk that infants will suffer from positional
asphyxia, plagiocephaly, and torticollis. Plaintiffs uniformly
allege that defendants’ advertising and marketing for the RNPS
was false and misleading, and that FisherPrice's April 2019 recall
of the RNPS was deficient. In its August 1, 2019 Order, the MDL
Panel found that the Western District of New York is an appropriate
transferee district for this litigation. This district has a strong
connection to these cases. Fisher-Price is headquartered in East
Aurora, New York, and the critical events and decisions underlying
plaintiffs' claims regarding the RNPS occurred there. The Western
District of New York thus presents a convenient and relatively
accessible forum for this litigation. Centralization in the Western
District of New York therefore allows us to assign this litigation
to an able jurist who has not yet had the opportunity to preside
over an MDL. Presiding Judge in the MDL is Hon. Judge Geoffrey W.
Crawford. The lead case is Case No. 1:19-md-02903-GWC.[BN]
Attorneys for the Plaintiff are:
Adam W. Pittman, Esq.
Doug Dellaccio, Jr., Esq.
F. Jerome Tapley, Esq.
Hirlye R. Lutz, III, Esq.
Lauren S. Miller, Esq.
CORY WATSON, P.C.
2131 Magnolia Avenue South, Suite 200
Birmingham, AL 35205
Telephone: (205) 328-2200
Facsimile: (205) 324-7896
- and -
Benjamin A. Gastel, Esq.
James Gerard Stranch, IV, Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
The Freedom Center
223 Rosa L. Parks Avenue, Suite 200
Nashville, TN 37203
Telephone: (615) 254-8801
Facsimile: (615) 255-5419
- and -
Christopher T. Hellums, Esq.
Jonathan S. Mann, Esq.
PITTMAN, DUTTON, HELLUMS, P.C.
2001 Park Pl, No. 1100
Birmingham, AL 35203
MDL 2904: Allende, et al v. Quest over Data Breach Consolidated
---------------------------------------------------------------
The case, Gina Allende and Morgan Ottmann, individually, and on
behalf of all others similarly situated, the Plaintiffs, vs. QUEST
DIAGNOSTICS INCORPORATED, LABORATORY CORPORATION OF AMERICA, and
LABORATORY CORPORATION OF AMERICA HOLDINGS, the Defendants, Case
No. 1:19-cv-05989 (Filed June 26, 2019), was removed from the U.S.
District Court for the Southern District of New York, to the U.S.
District Court for the District of New Jersey (Newark) on Aug. 15,
2019. The Northern District of California Court Clerk assigned Case
No. 2:19-cv-16703 to the proceeding.
The Allende case is being consolidated with MDL 2904 in re:
AMERICAN MEDICAL COLLECTION AGENCY, INC., CUSTOMER DATA SECURITY
BREACH LITIGATION. The MDL was created by Order of the United
States Judicial Panel on Multidistrict Litigation on July 31, 2019.
These actions arise out of a data security breach on the systems of
American Medical Collection Agency (AMCA), a breach that reportedly
compromised patient data that various medical diagnostic testing
companies had provided to AMCA for billing and collection purposes,
including Quest Diagnostics, Inc. (Quest), Laboratory Corporation
of America Holdings (LabCorp), Bio-Reference Laboratories, Inc.
(Bio-Reference), and others. Quest, LabCorp, and Bio-Reference
publicly announced the breach in early June 2019, and the putative
class actions now before the Panel soon followed.
In its July 31, 2019 Order, the MDL Panel found that the actions in
this MDL involve common factual questions in all actions
unquestionably arise from the same recently-disclosed breach of
AMCA's systems from August 2018 through March 2019, through which
an unauthorized user allegedly gained access to patients' personal
and financial information, including social security numbers and
credit card and bank account information, and patients' medical
information. Thus, discovery and motions concerning AMCA's data
security practices, how the unauthorized access occurred, and the
investigation into the breach will be substantially the same in all
actions. The Panel conclude that the District of New Jersey is an
appropriate transferee district. All defendants and plaintiffs in
over a dozen actions support this district, where four actions on
the motion and seven potential tag-along actions are pending.
Defendants Quest and Bio-Reference have their headquarters there,
and AMCA is located nearby in Elmsford, New York. Thus, common
documents and witnesses likely will be located in or near this
district. Presiding Judge in the MDL is Hon. Judge Madeline Cox
Arleo. The lead case is 2:19-md-02904-MCA-MAH.[BN]
Attorneys for the Plaintiffs are:
Juan Eneas Monteverde, Esq.
MONTEVERDE & ASSOCIATES
350 Fifth Avenue, Suite 4405
New York, NY 10118
Telephone: (212) 971-1341
Facsimile: (212) 983-9331
MDL 2904: Cinelli et al Suit v. Quest over Data Theft Consolidated
------------------------------------------------------------------
The case, Eric Cinelli, Joanna Eggins, and Storia Monlyn,
individually, and on behalf of all others similarly situated, the
Plaintiffs, vs. Optum 360 LLC, QUEST DIAGNOSTIC INCORPORATED, and
OPTUM360 SERVICES, INC., the Defendants, Case No.7:19-cv-05803
(Filed July 20, 2019), was removed from the U.S. District Court for
the Souther District of New York, to the U.S. District Court for
the District of New Jersey (Newark) on Aug. 20, 2019. The Northern
District of California Court Clerk assigned Case No. 2:19-cv-16982
to the proceeding.
The Cinelli case is being consolidated with MDL 2904 in re:
AMERICAN MEDICAL COLLECTION AGENCY, INC., CUSTOMER DATA SECURITY
BREACH LITIGATION. The MDL was created by Order of the United
States Judicial Panel on Multidistrict Litigation on July 31, 2019.
These actions arise out of a data security breach on the systems of
American Medical Collection Agency (AMCA), a breach that reportedly
compromised patient data 1 that various medical diagnostic testing
companies had provided to AMCA for billing and collection purposes,
including Quest Diagnostics, Inc. (Quest), Laboratory Corporation
of America Holdings (LabCorp), Bio-Reference Laboratories, Inc.
(Bio-Reference), and others. Quest, LabCorp, and Bio-Reference
publicly announced the breach in early June 2019, and the putative
class actions now before the Panel soon followed.
In its July 31,2019 Order, the MDL Panel found that the actions in
this MDL involve common factual questions in all actions
unquestionably arise from the same recently-disclosed breach of
AMCA's systems from August 2018 through March 2019, through which
an unauthorized user allegedly gained access to patients' personal
and financial information, including social security numbers and
credit card and bank account information, and patients' medical
information. Thus, discovery and motions concerning AMCA's data
security practices, how the unauthorized access occurred, and the
investigation into the breach will be substantially the same in all
actions. The Panel conclude that the District of New Jersey is an
appropriate transferee district. All defendants and plaintiffs in
over a dozen actions support this district, where four actions on
the motion and seven potential tag-along actions are pending.
Defendants Quest and Bio-Reference have their headquarters there,
and AMCA is located nearby in Elmsford, New York. Thus, common
documents and witnesses likely will be located in or near this
district. Presiding Judge in the MDL is Hon. Judge Madeline Cox
Arleo. The lead case is 2:19-md-02904-MCA-MAH.[BN]
Attorneys for the Plaintiffs are:
Carey Alexander, Esq.
Erin Green Comite, Esq.
Joseph Peter Guglielmo, Esq.
SCOTT + SCOTT
ATTORNEYS AT LAW, LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
Attorneys for Quest Diagnostics Incorporated are:
Eamon Paul Joyce, Esq.
Pouneh Aravand, Esq.
SIDLEY AUSTIN LLP (NY)
787 Seventh Avenue
New York, NY 10019
Telephone: (212) 839-8555
Facsimile: (212) 839-5599
Attorneys for Optum360 Services, Inc.:
Eade Williams Seligmann, Esq.
ALSTON & BIRD LLP
90 Park Avenue
New York, NY 10016
Telephone: (212) 210-9400
E-mail: reade.seligmann@alston.com
MDL 2904: Freeman Suit v. LabCorp. over Data Breach Consolidated
----------------------------------------------------------------
The case, CLYDE FREEMAN, and on behalf of all others similarly
situated, the Plaintiff, vs. LABORATORY CORPORATION OF AMERICA
HOLDINGS, AMERICAN MEDICAL COLLECTION AGENCY, CLINICAL PATHOLOGY
LABORATORIES, INC., BIO-REFERENCE LABORATORIES, INC., and DOES
1-10, the Defendants, Case No. 7:19-cv-06853 (Filed July 23, 2019),
was removed from the U.S. District Court for the Southern District
of New York, to the U.S. District Court for the District of New
Jersey (Newark) on Aug. 20, 2019. The Northern District of
California Court Clerk assigned Case No. 2:19-cv-16981 to the
proceeding.
The Freeman case is being consolidated with MDL 2904 in re:
AMERICAN MEDICAL COLLECTION AGENCY, INC., CUSTOMER DATA SECURITY
BREACH LITIGATION. The MDL was created by Order of the United
States Judicial Panel on Multidistrict Litigation on July 31, 2019.
These actions arise out of a data security breach on the systems of
American Medical Collection Agency (AMCA), a breach that reportedly
compromised patient data 1 that various medical diagnostic testing
companies had provided to AMCA for billing and collection purposes,
including Quest Diagnostics, Inc. (Quest), Laboratory Corporation
of America Holdings (LabCorp), Bio-Reference Laboratories, Inc.
(Bio-Reference), and others. Quest, LabCorp, and Bio-Reference
publicly announced the breach in early June 2019, and the putative
class actions now before the Panel soon followed.
In its July 31,2019 Order, the MDL Panel found that the actions in
this MDL involve common factual questions in all actions
unquestionably arise from the same recently-disclosed breach of
AMCA's systems from August 2018 through March 2019, through which
an unauthorized user allegedly gained access to patients' personal
and financial information, including social security numbers and
credit card and bank account information, and patients' medical
information. Thus, discovery and motions concerning AMCA's data
security practices, how the unauthorized access occurred, and the
investigation into the breach will be substantially the same in all
actions. The Panel conclude that the District of New Jersey is an
appropriate transferee district. All defendants and plaintiffs in
over a dozen actions support this district, where four actions on
the motion and seven potential tag-along actions are pending.
Defendants Quest and Bio-Reference have their headquarters there,
and AMCA is located nearby in Elmsford, New York. Thus, common
documents and witnesses likely will be located in or near this
district. Presiding Judge in the MDL is Hon. Judge Madeline Cox
Arleo. The lead case is 2:19-md-02904-MCA-MAH.[BN]
Attorneys for the Plaintiff are:
Tina Wolfson, Esq.
AHDOOT & WOLFSON, PC
125 Maiden Lane, Suite 5c
New York, NE 10038
Telephone: (917) 336-0171
Facsimile: (917) 336-0177
Attorneys for Clinical Pathology Laboratories, Inc.
Ariadne Anna Panagopoulou Alexandrou, Esq.
Bradley J. Bartolomeo, Esq.
Jeffrey Yehuda Aria Spiegel, Esq.
LEWIS BRISBOIS BISGAARD & SMITH LLP
77 Water St., Ste. 2100
New York, NY 10005
Telephone: (212) 232-1300
Facsimile: (212) 232-1399
MDL 2904: Henry v. Optum 360 over Data Breach Consolidated
----------------------------------------------------------
The case, Kaesha Gaye Camilia Henry, individually, and on behalf of
all others similarly situated, the Plaintiff, vs. AMERICAN MEDICAL
COLLECTION AGENCY INC., LABORATORY CORPORATION OF AMERICA HOLDINGS,
OPTUM360 LLC, BIOREFERENCE LABORATORIES INC., DOES 1-50, the
Defendants, Case No. 7:19-cv-05392 (Filed June 7, 2019), was
removed from the U.S. District Court for the Southern District of
New York, to the U.S. District Court for the District of New Jersey
(Newark) on Aug. 15, 2019. The Northern District of California
Court Clerk assigned Case No. 2:19-cv-16711 to the proceeding.
The Henry case is being consolidated with MDL 2904 in re: AMERICAN
MEDICAL COLLECTION AGENCY, INC., CUSTOMER DATA SECURITY BREACH
LITIGATION. The MDL was created by Order of the United States
Judicial Panel on Multidistrict Litigation on July 31, 2019. These
actions arise out of a data security breach on the systems of
American Medical Collection Agency (AMCA), a breach that reportedly
compromised patient data that various medical diagnostic testing
companies had provided to AMCA for billing and collection purposes,
including Quest Diagnostics, Inc. (Quest), Laboratory Corporation
of America Holdings (LabCorp), Bio-Reference Laboratories, Inc.
(Bio-Reference), and others. Quest, LabCorp, and Bio-Reference
publicly announced the breach in early June 2019, and the putative
class actions now before the Panel soon followed.
In its July 31, 2019 Order, the MDL Panel found that the actions in
this MDL involve common factual questions in all actions
unquestionably arise from the same recently-disclosed breach of
AMCA's systems from August 2018 through March 2019, through which
an unauthorized user allegedly gained access to patients' personal
and financial information, including social security numbers and
credit card and bank account information, and patients' medical
information. Thus, discovery and motions concerning AMCA's data
security practices, how the unauthorized access occurred, and the
investigation into the breach will be substantially the same in all
actions. The Panel conclude that the District of New Jersey is an
appropriate transferee district. All defendants and plaintiffs in
over a dozen actions support this district, where four actions on
the motion and seven potential tag-along actions are pending.
Defendants Quest and Bio-Reference have their headquarters there,
and AMCA is located nearby in Elmsford, New York. Thus, common
documents and witnesses likely will be located in or near this
district. Presiding Judge in the MDL is Hon. Judge Madeline Cox
Arleo. The lead case is 2:19-md-02904-MCA-MAH.[BN]
Attorneys for the Plaintiffs are:
Juan Eneas Monteverde, Esq.
MONTEVERDE & ASSOCIATES
350 Fifth Avenue, Suite 4405
New York, NY 10118
Telephone: (212) 971-1341
Facsimile: (212) 983-9331
Attorneys for Laboratory Corporation of America Holdings are:
Michelle Anne Kisloff, Esq.
HOGAN LOVELLS US LLP (DC)
555 Thirteenth Street, N.W.
Washington, DC 20004
Telephone: (202) 637-5600
Facsimile: (202) 637-5910
- and -
Pouneh Aravand, Esq.
SIDLEY AUSTIN LLP (NY)
787 Seventh Avenue
New York, NY 10019
Telephone: (212) 839-6731
Attorneys for Optum360 LLC
Reade William Seligmann, Esq.
ALSTON & BIRD LLP
90 Park Avenue
New York, NY 10016
Telephone: (212) 210-9400
E-mail: reade.seligmann@alston.com
Attorneys for Bioreference Laboratories Inc. are:
Edward John Jacobs, Esq.
Paul G Karlsgodt, Esq.
Robyn Mara Feldstein, Esq.
BAKER & HOSTETLER LLP
45 Rockefeller Plaza
New York, NY 10111
Telephone: (212) 589-4200
MDL 2904: Jilek v. LabCorp. over Data Breach Consolidated
---------------------------------------------------------
The case, Ashley Jilek and La Torrie Glover-Brown on behalf of all
others similarly situated, the Plaintiffs, vs. RETRIEVAL-MASTERS
CREDITOR'S BUREAU, INC. doing business as: AMERICAN MEDICAL
COLLECTION AGENCY; QUEST DIAGNOSTICS INC.; OPTUM360 LLC; and
LABORATORY CORPORATION OF AMERICA HOLDINGS doing business as:
LABCORP, the Defendants, Case No. 7:19-cv-05552 (Filed June 14,
2019), was removed from the U.S. District Court for the Southern
District of New York, to the U.S. District Court for the District
of New Jersey (Newark) on Aug. 20, 2019. The Northern District of
California Court Clerk assigned Case No. 2:19-cv-16983 to the
proceeding.
The Jilek case is being consolidated with MDL 2904 in re: AMERICAN
MEDICAL COLLECTION AGENCY, INC., CUSTOMER DATA SECURITY BREACH
LITIGATION. The MDL was created by Order of the United States
Judicial Panel on Multidistrict Litigation on July 31, 2019. These
actions arise out of a data security breach on the systems of
American Medical Collection Agency (AMCA), a breach that reportedly
compromised patient data 1 that various medical diagnostic testing
companies had provided to AMCA for billing and collection purposes,
including Quest Diagnostics, Inc. (Quest), Laboratory Corporation
of America Holdings (LabCorp), Bio-Reference Laboratories, Inc.
(Bio-Reference), and others. Quest, LabCorp, and Bio-Reference
publicly announced the breach in early June 2019, and the putative
class actions now before the Panel soon followed.
In its July 31,2019 Order, the MDL Panel found that the actions in
this MDL involve common factual questions in all actions
unquestionably arise from the same recently-disclosed breach of
AMCA's systems from August 2018 through March 2019, through which
an unauthorized user allegedly gained access to patients' personal
and financial information, including social security numbers and
credit card and bank account information, and patients' medical
information. Thus, discovery and motions concerning AMCA's data
security practices, how the unauthorized access occurred, and the
investigation into the breach will be substantially the same in all
actions. The Panel conclude that the District of New Jersey is an
appropriate transferee district. All defendants and plaintiffs in
over a dozen actions support this district, where four actions on
the motion and seven potential tag-along actions are pending.
Defendants Quest and Bio-Reference have their headquarters there,
and AMCA is located nearby in Elmsford, New York. Thus, common
documents and witnesses likely will be located in or near this
district. Presiding Judge in the MDL is Hon. Judge Madeline Cox
Arleo. The lead case is 2:19-md-02904-MCA-MAH.[BN]
Attorneys for the Plaintiffs are:
David Berger
GIBBS LAW GROUP LLP
505 14th Street, Suite 1110
Oakland, CA 94612
Telephone: (510) 350-9700
- and -
Eric H. Gibbs, Esq.
GIRARD GIBBS LLP
601 California Street, 14th Floor
San Francisco, CA 94108
Telephone: (415) 981-4800
E-mail: ehg@girardgibbs.com
- and -
John Anthony Kehoe, Esq.
POMERANTZ LLP
600 Third Ave, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
Attorneys for Clinical Pathology Laboratories, Inc.
Ariadne Anna Panagopoulou Alexandrou, Esq.
Bradley J. Bartolomeo, Esq.
Jeffrey Yehuda Aria Spiegel, Esq.
LEWIS BRISBOIS BISGAARD & SMITH LLP
77 Water St., Ste. 2100
New York, NY 10005
Telephone: (212) 232-1300
Facsimile: (212) 232-1399
MDL 2904: Key v. Quest Over Data Breach Consolidated
----------------------------------------------------
The case, Ritzie Key, on behalf of all others similarly situated,
the Plaintiff, vs. AMERICAN MEDICAL COLLECTION AGENCY INC. OPTUM360
LLC, QUEST DIAGNOSTICS INCORPORATED, and DOES 1-10, the Defendants,
Case No. 7:19-cv-05536 (Filed June 13, 2019), was removed from the
U.S. District Court for the Southern District of New York, to the
U.S. District Court for the District of New Jersey (Newark) on Aug.
20, 2019. The Northern District of California Court Clerk assigned
Case No. 2:19-cv-16984 to the proceeding.
The Key case is being consolidated with MDL 2904 in re: AMERICAN
MEDICAL COLLECTION AGENCY, INC., CUSTOMER DATA SECURITY BREACH
LITIGATION. The MDL was created by Order of the United States
Judicial Panel on Multidistrict Litigation on July 31, 2019. These
actions arise out of a data security breach on the systems of
American Medical Collection Agency (AMCA), a breach that reportedly
compromised patient data 1 that various medical diagnostic testing
companies had provided to AMCA for billing and collection purposes,
including Quest Diagnostics, Inc. (Quest), Laboratory Corporation
of America Holdings (LabCorp), Bio-Reference Laboratories, Inc.
(Bio-Reference), and others. Quest, LabCorp, and Bio-Reference
publicly announced the breach in early June 2019, and the putative
class actions now before the Panel soon followed.
In its July 31,2019 Order, the MDL Panel found that the actions in
this MDL involve common factual questions in all actions
unquestionably arise from the same recently-disclosed breach of
AMCA's systems from August 2018 through March 2019, through which
an unauthorized user allegedly gained access to patients' personal
and financial information, including social security numbers and
credit card and bank account information, and patients' medical
information. Thus, discovery and motions concerning AMCA's data
security practices, how the unauthorized access occurred, and the
investigation into the breach will be substantially the same in all
actions. The Panel conclude that the District of New Jersey is an
appropriate transferee district. All defendants and plaintiffs in
over a dozen actions support this district, where four actions on
the motion and seven potential tag-along actions are pending.
Defendants Quest and Bio-Reference have their headquarters there,
and AMCA is located nearby in Elmsford, New York. Thus, common
documents and witnesses likely will be located in or near this
district. Presiding Judge in the MDL is Hon. Judge Madeline Cox
Arleo. The lead case is 2:19-md-02904-MCA-MAH.[BN]
Attorneys for the Plaintiff are:
Jeremiah Lee Frei-Pearson, Esq.
FINKELSTEIN BLANKINSHIP
FREI-PEARSON & GARBER, LLP
445 Hamilton Ave, Suite 605
White Plains, NY 10601
Telephone: (914) 298-3281
Facsimile: (914) 824-1561
Attorneys for OPTUM360 LLC are:
Reade William Seligmann, Esq.
ALSTON & BIRD LLP
90 Park Avenue
New York, NY 10016
Telephone: (212) 210-9400
E-mail: reade.seligmann@alston.com
Attorneys for Quest Diagnostics Incorporated are:
Eamon Paul Joyce, Esq.
Pouneh Aravand, Esq.
SIDLEY AUSTIN LLP
787 Seventh Avenue
New York, NY 10019
Telephone: (212) 839-8555
Facsimile: (212) 839-5599
MDL 2904: Wallach v. LabCorp. over Data Breach Consolidated
-----------------------------------------------------------
The case, Wendy Wallach, individually, and on behalf of all others
similarly situated, the Plaintiff, vs. LABORATORY CORPORATION OF
AMERICA HOLDINGS, the Defendant, Case No. 7:19-cv-06243 (Filed July
3, 2019), was removed from the U.S. District Court for the Southern
District of New York, to the U.S. District Court for the District
of New Jersey (Newark) on Aug. 15, 2019. The Northern District of
California Court Clerk assigned Case No. 2:19-cv-16710 to the
proceeding.
The Wallach case is being consolidated with MDL 2904 in re:
AMERICAN MEDICAL COLLECTION AGENCY, INC., CUSTOMER DATA SECURITY
BREACH LITIGATION. The MDL was created by Order of the United
States Judicial Panel on Multidistrict Litigation on July 31, 2019.
These actions arise out of a data security breach on the systems of
American Medical Collection Agency (AMCA), a breach that reportedly
compromised patient data that various medical diagnostic testing
companies had provided to AMCA for billing and collection purposes,
including Quest Diagnostics, Inc. (Quest), Laboratory Corporation
of America Holdings (LabCorp), Bio-Reference Laboratories, Inc.
(Bio-Reference), and others. Quest, LabCorp, and Bio-Reference
publicly announced the breach in early June 2019, and the putative
class actions now before the Panel soon followed.
In its July 31, 2019 Order, the MDL Panel found that the actions in
this MDL involve common factual questions in all actions
unquestionably arise from the same recently-disclosed breach of
AMCA's systems from August 2018 through March 2019, through which
an unauthorized user allegedly gained access to patients' personal
and financial information, including social security numbers and
credit card and bank account information, and patients' medical
information. Thus, discovery and motions concerning AMCA's data
security practices, how the unauthorized access occurred, and the
investigation into the breach will be substantially the same in all
actions. The Panel conclude that the District of New Jersey is an
appropriate transferee district. All defendants and plaintiffs in
over a dozen actions support this district, where four actions on
the motion and seven potential tag-along actions are pending.
Defendants Quest and Bio-Reference have their headquarters there,
and AMCA is located nearby in Elmsford, New York. Thus, common
documents and witnesses likely will be located in or near this
district. Presiding Judge in the MDL is Hon. Judge Madeline Cox
Arleo. The lead case is 2:19-md-02904-MCA-MAH.[BN]
Attorneys for the Plaintiff are:
Eduard Korsinsky, Esq.
LEVI & KORSINSKY LLP
55 Broadway, 10th Floor
New York, NY 10006
Telephone: (212) 363-7500
E-mail: ek@zlk.com
MEDICAL NECESSITIES: Certification of Delivery Techs Class Sought
-----------------------------------------------------------------
In the class action lawsuit styled as CHARLES JENKINS-QUEEN,
Individually and on behalf of all other similarly situated current
and former employees, the Plaintiff, vs. MEDICAL NECESSITIES AND
SERVICES, LLC, a Tennessee Corporation, the Defendant, Case No.
3:18-cv-01294 (M.D. Tenn.), the Plaintiff moves the Court for an
order:
1. certifying a class of similarly situated current and former
Delivery Technicians ("Delivery Techs") employed by Medical
Necessities during the last three years, defined as:
"all current and former employees of Medical Necessities who
worked as a Delivery Technician, or any other position that
involved the delivery or on-site repair of medical
equipment, for more than 40 hours in any week during the
previous three years from the filing of the Complaint"; and
2. authorizing Court-supervised notice to those individuals, in
accordance with Section 16(b) of the Fair Labor Standards
Act.[CC]
Attorneys for the Plaintiff and all other similarly situated
current and former employees are:
Gordon E. Jackson, Esq.
James L. Holt, Jr., Esq.
Paula R. Jackson, Esq.
J. Russ Bryant, Esq.
Nathaniel A. Bishop
JACKSON, SHIELDS, YEISER & HOLT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
E-mail: gjackson@jsyc.com
rbryant@jsyc.com
jholt@jsyc.com
nbishop@jsyc.com
- and -
Nina Parsley, Esq.
PONCE LAW
400 Professional Park Drive
Goodlettsville, TN 37072
E-mail: nina@poncelaw.com
MEDIDATA SOLUTIONS: Merger Deal with Dassault Systemes Challenged
-----------------------------------------------------------------
Medidata Solutions Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 6, 2019, for the
quarterly period ended June 30, 2019, that the company faces
several Dassault Systemes merger related suits.
On June 11, 2019, Medidata's Board of Directors caused the Company
to enter into an agreement and plan of merger (the "Merger
Agreement") with Dassault Systemes. Pursuant to the terms of the
Merger Agreement, Medidata's stockholders will receive $92.25 in
cash for each share of Medidata common stock they own.
On July 22, 2019, in connection with the merger with Dassault
Systemes announced on June 12, 2019, a putative class action
lawsuit, Kent v. Medidata Solutions, Inc., et al.,
1:19-cv-01361-RGA, was filed by purported shareholder Michael Kent
against Medidata and its board of directors in the United States
District Court for the District of Delaware.
On July 25, 2019, in connection with the merger, a complaint, Stein
v. Medidata Solutions, Inc., et al., 1:19-cv-06933, was filed as an
individual action by purported shareholder Shiva Stein against
Medidata and its board of directors in the United States District
Court for the Southern District of New York.
On July 30, 2019, in connection with the merger, a complaint,
Sivigny v. Medidata Solutions, Inc., et al., 2:19-cv-16113, was
filed as an individual action by purported shareholder Robert
Sivigny against Medidata and its board of directors in the United
States District Court for the District of New Jersey.
On July 31, 2019, in connection with the merger, a complaint,
Borodin v. Medidata Solutions, Inc., et al., 1:19-cv-07176, was
filed as an individual action by purported shareholder Suvi Borodin
against Medidata and its board of directors in the United States
District Court for the Southern District of New York.
The company refers to the Kent, Stein, Sivigny, and Borodin cases
as the "merger actions."
The merger actions generally allege that the company's proxy
statement filed on July 19, 2019 misrepresents and/or omits certain
purportedly material information and assert violations of Sections
14(a) of the Securities Exchange Act of 1934 (the "Exchange Act")
and Rule 14a-9 promulgated thereunder against all defendants and
violations of Section 20(a) of the Exchange Act against our
directors.
The merger actions seek, among other things, an injunction
enjoining consummation of the merger, costs of the action,
including plaintiff's attorneys' fees and experts' fees,
declaratory relief, and any other relief the court may deem just
and proper.
Medidata Solutions Inc. (Medidata), incorporated on April 12, 2000,
is a provider of cloud-based solutions for life sciences. The
Company provides cloud-based solutions for clinical research in
life sciences, offering platform technology that focuses on the
clinical development. The company is based in New York, New York.
MEDLEY LLC: Oct. 24 Hearing for Settlement of FrontFour Class Suit
------------------------------------------------------------------
The Court is expected to schedule a hearing on October 24, 2019 to
consider a stipulation agreement wherein parties in the
consolidated FrontFour class action will mutually release all
claims, according to Medley LLC's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2019.
On February 11, 2019, a purported stockholder class action was
commenced in the Court of Chancery of the State of Delaware by
FrontFour Capital Group LLC and FrontFour Master Fund, Ltd.
(together, "FrontFour"), captioned FrontFour Capital Group LLC, et
al. v. Brook Taube, et al., Case No. 2019-0100 (the "FrontFour
Action"), against defendants Brook Taube, Seth Taube, Jeff Tonkel,
Mark Lerdal, Karin Hirtler-Garvey, John E. Mack, Arthur S.
Ainsberg, MDLY, Sierra, MCC, MCC Advisors LLC ("MCC Advisors"),
Medley Group, and Medley LLC.
The complaint, as amended on February 12, 2019, alleged that the
individuals named as defendants breached their fiduciary duties to
MCC stockholders in connection with the proposed merger of MCC with
Sierra (the "MCC Merger"), and that MDLY, Sierra, MCC Advisors,
Medley Group, and Medley LLC aided and abetted those alleged
breaches of fiduciary duties. The complaint sought to enjoin the
vote of MCC stockholders on the proposed merger and enjoin
enforcement of certain provisions of the Agreement and Plan of
Merger, dated as of August 9, 2018, by and between MCC and Sierra
(the "MCC Merger Agreement").
The Court held a trial on the plaintiffs' claims on March 6-7, 2019
and issued a Memorandum Opinion (the "Decision") on March 11,
2019.
The Court denied the plaintiffs' requests to (i) permanently enjoin
the proposed merger and (ii) require MCC to conduct a "shopping
process" for MCC on terms proposed by the plaintiffs in their
complaint. The Court held that MCC's directors breached their
fiduciary duties in entering into the proposed merger, but rejected
the plaintiffs' claim that Sierra aided and abetted those breaches
of fiduciary duties.
The Court ordered the defendants to issue corrective disclosures
consistent with the Decision, and enjoined a vote of MCC
stockholders on the proposed merger until such disclosures have
been made and stockholders have had the opportunity to assimilate
this information.
On March 20, 2019, another purported stockholder class action was
commenced by Stephen Altman against Brook Taube, Seth Taube, Jeff
Tonkel, Arthur S. Ainsberg, Karin Hirtler-Garvey, Mark Lerdal, and
John E. Mack in the Court of Chancery of the State of Delaware,
captioned Altman v. Taube, Case No. 2019-0219 (the "Altman
Action"). The complaint alleged that the defendants breached their
fiduciary duties to stockholders of MCC in connection with the vote
of MCC stockholders on the proposed mergers.
On April 8, 2019, the Court granted a stipulation consolidating the
FrontFour Action and the Altman Action, designating the amended
complaint in the FrontFour Action as the operative complaint, and
designating the plaintiffs in the FrontFour Action and their
counsel the lead plaintiffs and lead plaintiffs' counsel,
respectively.
On April 15, 2019, certain parties reached agreement on the
principal terms of a settlement of the FrontFour Action, which were
contained in a term sheet, dated April 15, 2019 (the "Settlement
Term Sheet").
On July 29, 2019 MDLY entered into a Stipulation of Settlement
(and, as amended on August 8, 2019, the "Stipulation") by and among
MCC, Brook Taube, Seth Taube, Jeff Tonkel, Mark Lerdal, Karin
Hirtler-Garvey, John E. Mack, Arthur S. Ainsberg, MDLY, MCC
Advisors, Medley LLC and Medley Group LLC (the "Medley Parties"),
on the one hand, and FrontFour, on behalf of itself and a class of
similarly situated stockholders of MCC, on the other hand, in
connection with the FrontFour Action.
The Stipulation provides for the settlement of all claims brought
against the Medley Parties in the FrontFour Action. Under the
Stipulation, MCC agreed to seek the agreement and/or consent of
Sierra to effect certain amendments to (i) the MCC Merger Agreement
and (ii) the MDLY Merger Agreement (together with the MCC Merger
Agreement, the "Merger Agreements"), which have been reflected in
the revised Merger Agreements annexed to the Stipulation. The
Stipulation also provides for, if the MCC Merger is consummated,
the creation of a settlement fund, consisting of US$17 million in
cash and US$30 million of Sierra stock, with the number of shares
of Sierra stock to be calculated using the pro forma net asset
value reported in the future proxy supplement describing the
amendments to the MCC Merger Agreement, which will be distributed
to eligible members of the Settlement Class (as defined in the
Stipulation). Under the Stipulation, MDLY also consented to
certain amendments to the Merger Agreements that have been
reflected in the revised Master Agreements annexed to the
Stipulation. In addition, in connection with the Stipulation, on
July 29, 2019, MCC entered into a Governance Agreement with
FrontFour Capital Group LLC, FrontFour Master Fund, Ltd., FrontFour
Capital Corp., FrontFour Opportunity Fund, David A. Lorber, Stephen
E. Loukas and Zachary R. George, pursuant to which, among other
matters, FrontFour is subject to customary standstill restrictions
and required to vote in favor of the MCC Merger at a meeting of
stockholders to approve the Amended MCC Merger Agreement.
The Stipulation also provides for mutual releases between and among
FrontFour and the Settlement Class, on the one hand, and the Medley
Parties, on the other hand, of all claims that were or could have
been asserted in the FrontFour Action. The Medley Parties will
also release all claims arising out of or relating to the
prosecution and settlement of the FrontFour Action and all claims
that were or could have been asserted (other than claims against
the Highland Parties, as defined in the Stipulation) in the
litigation pending in the United States District Court for the
Southern District of New York captioned Medley Capital Corporation
v. FrontFour Capital Group LLC, et al., No. 1:19-cv-02055-LTS
(S.D.N.Y.) (the "Federal Action"), and FrontFour and the Settlement
Class will release all claims arising out of or relating to the
prosecution and settlement of the Federal Action.
The Stipulation further provides that MCC and FrontFour shall work
together in good faith to agree to supplemental disclosures
relating to the transactions contemplated by the Merger Agreements
consistent with the Decision. The Stipulation is subject to the
approval of the Court. The Court is expected to schedule a hearing
on October 24, 2019 to consider the Stipulation.
Medley LLC is an alternative asset management firm offering yield
solutions to retail and institutional investors. The company
focuses on credit-related investment strategies, primarily
originating senior secured loans to private middle market companies
in the United States that have revenues between US$50 million and
US$1 billion.
MEDLEY LLC: Still Faces Consolidated Class Suit in Virginia
-----------------------------------------------------------
Medley LLC remains a defendant in a consolidated class action
currently pending in Virginia, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 30, 2019.
Medley LLC, Medley Capital Corporation, Medley Opportunity Fund II
LP, Medley Management, Inc., Medley Group, LLC, Brook Taube, and
Seth Taube were named as defendants, along with other various
parties, in a putative class action lawsuit captioned as Royce
Solomon, Jodi Belleci, Michael Littlejohn, and Giulianna Lomaglio
v. American Web Loan, Inc., AWL, Inc., Mark Curry, MacFarlane
Group, Inc., Sol Partners, Medley Opportunity Fund, II, LP, Medley
LLC, Medley Capital Corporation, Medley Management, Inc., Medley
Group, LLC, Brook Taube, Seth Taube, DHI Computing Service, Inc.,
Middlemarch Partners, and John Does 1-100, filed on December 15,
2017, amended on March 9, 2018, and amended a second time on
February 15, 2019, in the United States District Court for the
Eastern District of Virginia, Newport News Division, as Case No.
4:17-cv-145 (hereinafter, "Class Action 1").
Medley Opportunity Fund II LP and Medley Capital Corporation were
also named as defendants, along with various other parties, in a
putative class action lawsuit captioned George Hengle and Lula
Williams v. Mark Curry, American Web Loan, Inc., AWL, Inc., Red
Stone, Inc., Medley Opportunity Fund II LP, and Medley Capital
Corporation, filed February 13, 2018, in the United States District
Court, Eastern District of Virginia, Richmond Division, as Case No.
3:18-cv-100 ("Class Action 2").
Medley Opportunity Fund II LP and Medley Capital Corporation were
also named as defendants, along with various other parties, in a
putative class action lawsuit captioned John Glatt, Sonji Grandy,
Heather Ball, Dashawn Hunter, and Michael Corona v. Mark Curry,
American Web Loan, Inc., AWL, Inc., Red Stone, Inc., Medley
Opportunity Fund II LP, and Medley Capital Corporation, filed
August 9, 2018 in the United States District Court, Eastern
District of Virginia, Newport News Division, as Case No.
4:18-cv-101 ("Class Action 3") (together with Class Action 1 and
Class Action 2, the "Virginia Class Actions").
Medley Opportunity Fund II LP was also named as a defendant, along
with various other parties, in a putative class action lawsuit
captioned Christina Williams and Michael Stermel v. Red Stone, Inc.
(as successor in interest to MacFarlane Group, Inc.), Medley
Opportunity Fund II LP, Mark Curry, Brian McGowan, Vincent Ney, and
John Doe entities and individuals, filed June 29, 2018 and amended
July 26, 2018, in the United States District Court for the Eastern
District of Pennsylvania, as Case No. 2:18-cv-2747 (the
"Pennsylvania Class Action") (together with the Virginia Class
Actions, the "Class Action Complaints").
The plaintiffs in the Class Action Complaints filed their putative
class actions alleging claims under the Racketeer Influenced and
Corrupt Organizations Act, and various other claims arising out of
the alleged payday lending activities of American Web Loan.
The claims against Medley Opportunity Fund II LP, Medley LLC,
Medley Capital Corporation, Medley Management, Inc., Medley Group,
LLC, Brook Taube, and Seth Taube (in Class Action 1, as amended);
Medley Opportunity Fund II LP and Medley Capital Corporation (in
Class Action 2 and Class Action 3); and Medley Opportunity Fund II
LP (in the Pennsylvania Class Action), allege that those defendants
in each respective action exercised control over, or improperly
derived income from, and/or obtained an improper interest in,
American Web Loan's payday lending activities as a result of a loan
to American Web Loan.
The loan was made by Medley Opportunity Fund II LP in 2011.
American Web Loan repaid the loan from Medley Opportunity Fund II
LP in full in February of 2015, more than 1 year and 10 months
prior to any of the loans allegedly made by American Web Loan to
the alleged class plaintiff representatives in Class Action 1.
In Class Action 2, the alleged class plaintiff representatives have
not alleged when they received any loans from American Web Loan.
In Class Action 3, the alleged class plaintiff representatives
claim to have received loans from American Web Loan at various
times from February 2015 through April 2018.
In the Pennsylvania Class Action, the alleged class plaintiff
representatives claim to have received loans from American Web Loan
in 2017.
By orders dated August 7, 2018 and September 17, 2018, the Court
presiding over the Virginia Class Actions consolidated those cases
for all purposes.
On October 12, 2018, Plaintiffs in Class Action 3 filed a notice of
voluntary dismissal of all claims, and on October 29, 2018,
Plaintiffs in Class Action 2 filed a notice of voluntary dismissal
of all claims.
Medley LLC, Medley Capital Corporation, Medley Management, Inc.,
Medley Group, LLC, Brook Taube, and Seth Taube never made any loans
or provided financing to, or had any other relationship with,
American Web Loan. Medley Opportunity Fund II LP, Medley LLC,
Medley Capital Corporation, Medley Management, Inc., Medley Group,
LLC, Brook Taube, Seth Taube are seeking indemnification from
American Web Loan, various affiliates, and other parties with
respect to the claims in the Class Action Complaints.
Medley Opportunity Fund II LP, Medley LLC, Medley Capital
Corporation, Medley Management, Inc., Medley Group, LLC, Brook
Taube, and Seth Taube believe the alleged claims in the Class
Action Complaints are without merit and they intend to defend these
lawsuits vigorously.
Medley LLC is an alternative asset management firm offering yield
solutions to retail and institutional investors. The company
focuses on credit-related investment strategies, primarily
originating senior secured loans to private middle market companies
in the United States that have revenues between US$50 million and
US$1 billion.
MERCK & CO: Deal in Smith Discrimination Suit Has Prelim Approval
-----------------------------------------------------------------
In the case, KELLI SMITH, individually and on behalf of a class of
similarly situated female employees, Plaintiffs, v. MERCK & CO.,
INC., et al., Defendants, Civil Action No. 13-2970 (MAS) (LHG) (D.
N.J.), Judge Michael A. Shipp of the U.S. District Court for the
District of New Jersey granted the Plaintiffs' Motion for
Preliminary Approval of Class Action Settlement.
On May 9, 2013, Smith filed the instant matter, alleging class
claims resulting from gender discrimination. On Jan. 16, 2014, the
Plaintiffs filed an Amended Complaint, and on May 4, 2016, they
filed a Second Amended Complaint, which remains operative.
The Plaintiffs bring claims on behalf of a nationwide class of
female sales representatives pursuant to: Title VII of the Civil
Rights Act of 1964; the Family and Medical Leave Act ("FMLA"); the
Equal Pay Act ("EPA"); and the Employee Retirement and Income
Security Act ("ERISA").
On April 27, 2016, the Court granted the Plaintiffs' motion for
conditional certification under the EPA. Notice of the EPA
collective action was issued to over 3,000 female sales
representatives nationwide, and 671 representatives joined the
collective action.
The proposed class of the Plaintiffs is: All female employees who
are or were employed by Merck Sharp & Dohme Corp. or Intervet,
Inc., or any of their affiliates, parents, subsidiaries,
predecessors, successors, or assigns, and assigned to a M05, M06,
M07, M08, M09, S1 and/or S2 Sales Representative position in the
United States for at least one day between Dec. 8, 2010 and Oct. 1,
2018.
The Parties engaged in extensive class discovery, exchanging
hundreds of thousands of pages of documents, and completing more
than 80 depositions. They engaged in mediation before Mark S.
Rudy, Esq., and on Oct. 1, 2018, the Parties reached an agreement
in principle, and have since finalized the instant Settlement
Agreement.
The matter comes before the Court upon the Plaintiffs's Motion for
Preliminary Approval. The Defendants did not oppose the Motion.
Judge Shipp has carefully considered the Plaintiffs' submissions
and decides the matter without oral argument pursuant to Local
Civil Rule 78.1.
The Judge finds that the proposed Settlement Class meets the
requirements of Rule 23, and he conditionally certified the
Settlement Class. He finds that the Plaintiffs have demonstrated
by a preponderance of the evidence that the members of the EPA
collective action are similarly situated.
Because he finds no obvious deficiency, the Judge preliminarily
approved the Plaintiffs' class settlement, but emphasized that he
will address the fairness and reasonableness of the Plaintiffs'
proposed service awards and attorneys' fees and expenses prior to
final approval.
Lastly, the Judge has reviewed the Notice of Settlement of Class
Action, and finds that the Plaintiffs' proposed class notice
provides, in plain language, the aforementioned requirements,
including a detailed description of the nature of the class action
and a definition of the class, as well as instructions on how a
class member may enter appearance or exclude herself from the
class, and a class judgment's binding effect. He, accordingly,
approved the Notice of Settlement of Class Action, and set a Final
Approval hearing for Dec. 3, 2019 at 11:00 a.m.
For the reasons set forth above, Judge Shipp granted the
Plaintiffs' Motion for Preliminary Approval. The Court will enter
an order consistent with the Memorandum Opinion.
A full-text copy of the Court's July 19, 2019 Memorandum Opinion is
available at https://is.gd/cq5GSb from Leagle.com.
KELLI SMITH, individually and on behalf of a class of similarly
situated female employees, KANDICE BROSS, RACHEL MOUNTIS & KATE
WHITMER, Plaintiffs, represented by DAVID H. TRACEY --
dtracey@sanfordheisler.com -- SANFORD HEISLER KIMPEL LLP.
MERCK & CO., INC., Defendant, represented by MICHAEL S. BURKHARDT
-- michael.burkhardt@morganlewis.com -- MORGAN LEWIS & BOCKIUS LLP,
A. KLAIR FITZPATRICK -- klair.fitzpatrick@morganlewis.com -- MORGAN
LEWIS & BOCKIUS, BLAIR JOSEPH ROBINSON --
blair.robinson@morganlewis.com -- MORGAN LEWIS & BOCKIUS LLP &
CAILIN HEILIG, MORGAN LEWIS & BOCKIUS LLP.
MERCK SHARP & DOHME CORP. & INTERVET, INC., Defendants, represented
by MICHAEL S. BURKHARDT, MORGAN LEWIS & BOCKIUS LLP.
MG SECURITY SERVICES: Atkinson Suit Seeks Reimbursements
--------------------------------------------------------
Chantell Atkinson, on behalf of herself and all others similarly
situated, Plaintiffs, v. MG Security Services LLC, Defendants, Case
No. 157562/2019 (N.Y. Sup., August 2, 2019), seeks reimbursement or
additional pay for time spent off the clock and money spent in
laundering and maintaining his company-provided uniform in
accordance with new York Labor Law.
Atkinson worked as a security guard and fire guard from
approximately September 6, 2018 through February 16, 2019. [BN]
Plaintiff is represented by:
Mark Gaylord, Esq.
BOUKLAS GAYLORD LLP
400 Jericho Turnpike Suite 226
Jericho, NY 11753
Phone: (516) 742-4949
Fax: (516)742-1977
Email: mark@bglawny.com
MGT CAPITAL: Settlement Talks Ongoing for Class Suits in NJ & NY
----------------------------------------------------------------
MGT Capital Investments, Inc. said in its Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended June 30, 2019, that the settlement class action suits filed
in the U.S. District Court for the District of New Jersey and U.S.
District Court for the Southern District of New York are still
subject to all parties' agreement to final settlement documentation
which all parties have agreed to negotiate in good faith, and to
court approval.
On September 2018 and October 2018, various shareholders of the
Company filed putative class action lawsuits against the Company,
its Chief Executive Officer and certain of its individual officers
and shareholders, alleging violations of federal securities laws
and seeking damages (the "2018 Securities Class Actions").
The 2018 Securities Class Actions followed and referenced the
allegations made against the Company's Chief Executive Officer and
others in the SEC Action.
The first putative class action lawsuit was filed on September 28,
2018, in the United States District Court for the District of New
Jersey, and alleges that the named defendants engaged in a
pump-and-dump scheme to artificially inflate the price of the
Company's stock, and that, as a result, defendants' statements
about the Company's business and prospects were materially false
and misleading and/or lacked a reasonable basis at relevant times.
The second putative class action was filed on October 9, 2018, in
the United States District Court for the Southern District of New
York and makes similar allegations.
On May 28, 2019, the parties to the 2018 Securities Class Actions
entered into a Binding Settlement Term Sheet setting forth the
essential terms of a settlement agreement of these actions. The
terms provide for the payment of a cash sum to the plaintiff class
and an agreement to assign certain potential cash recoveries to the
class, together with dismissal of the action with prejudice and the
exchange of releases.
The settlement is subject to all parties' agreement to final
settlement documentation which all parties have agreed to negotiate
in good faith, and to court approval.
MGT Capital Investments, Inc. engages in bitcoin mining operations
in the Wenatchee Valley area of central Washington. At March 30,
2018, it owned and operated approximately 500 miners located in a
leased facility in Quincy, Washington; and 4,200 miners located in
a leased facility in Sweden, as well as operated approximately
2,100 miners in the Sweden location. The company was founded in
1979 and is headquartered in Durham, North Carolina.
MICHAEL'S FAMILY: $750K Deal in Blofstein Suit Has Final Approval
-----------------------------------------------------------------
In the case, BLOFSTEIN, ET AL., v. MICHAEL'S FAMILY RESTAURANT,
INC., ET AL, Case No. 17-5578 (E.D. Pa.), Judge R. Barclay Surrick
of the U.S. District Court for the Eastern District of Pennsylvania
granted the Plaintiffs' Unopposed Motion for Final Settlement
Approval.
Blofstein and Alexis Flores filed the class and collective action
on behalf of themselves and other similarly situated restaurant
servers, alleging that the Defendants violated the Fair Labor
Standards Act ("FLSA"), and the Pennsylvania Minimum Wage Act of
1968 ("PMWA"). The Plaintiffs allege that the Defendants permitted
servers at four of their restaurants -- Country Club Diner, Tiffany
Diner, Warminster West Diner, and Mayfair Diner (first shift) -- to
work more than 40 hours per week, while maintaining a policy
against logging overtime hours on the clock and maintaining an
illegal tip pool. With regard to the tip pool, the Plaintiffs
maintain that the servers were made to pay a fixed amount from
their tips to an illegal tip pool to benefit other restaurant
employees (bussers and food runners), but that the money from the
pool was actually used by Defendants to pay these employees' wages
and not tips.
The Plaintiffs filed the class and collective action Complaint on
Dec. 13, 2017. On April 20, 2018, the Plaintiffs filed an Amended
Complaint, which asserts an additional claim of retaliation on
behalf of Named Plaintiff Blofstein.
In June 2018, the parties participated in a settlement conference
with Magistrate Judge Lynn A. Sitarski. Although no settlement was
reached, the parties subsequently engaged in discovery aimed at
permitting more informed settlement discussions in private
mediation. In July 2018, the parties participated in a private
mediation. Again, unable to reach a resolution, they pursued
additional discovery and participated in a second full day of
mediation with the same mediator in September 2018. At this
mediation, the parties reached an agreement to settle Plaintiffs'
claims. The Settlement Agreement was signed on Nov. 1, 2018.
The Plaintiffs' Unopposed Motion for Preliminary Class and
Collective Action Settlement Approval was granted on March 12,
2019. The Order was subsequently amended on March 20, 2019, to
reflect a later deadline for the class members to submit "opt-out
requests, objection requests, and requests to withdraw consent to
join.
The Court preliminarily certified two classes: the Settlement Class
under the PMWA, and the Settlement Class under FLSA.
The PMWA Settlement Class is defined as all current or former
Servers who are Pennsylvania residents and who were employed at the
Country Club Diner, Tiffany Diner, or Warminster West Diner from
Dec. 13, 2014 to July 5, 2018, plus all current or former Servers
who are Pennsylvania residents and who were employed during the
first shift at Mayfair Diner from Dec. 13, 2014 to July 5, 2018.
The FLSA Settlement Class is defined as all current or former
Servers employed at the Country Club Diner, Tiffany Diner, or
Warminster West Diner from Dec. 13, 2014 to July 5, 2018, plus all
current or former Servers employed during the first shift at
Mayfair Diner from Dec. 13, 2014 to July 5, 2018.
After reviewing the settlement terms proposed by the parties, the
Court determined that the Settlement Agreement appears to be the
product of serious, informed, and extensive arm's-length
negotiations between the Parties and appears to be fair, adequate
and reasonable to the Settlement Class so as to fall within the
range of possible final approval.
On March 29, 2019, Atticus Administration, LLC mailed notice of the
proposed settlement agreement and claim forms to the 424 potential
class members. Atticus was able to reach 378 of the 424 potential
class members. This represents 89% of the potential class members
reached. The remaining potential class members could not be
reached.
The Potential class members were notified that the deadline to
submit claim forms was May 28, 2019, which was 60 days after the
Notice Packets were mailed. During this period, the claims
administrator received 146 completed claim forms, which represents
about 40% of the delivered Notice Packets. There have been no
objections to, or requests for exclusion from, the proposed
settlement from any proposed class members.
The Final Settlement Hearing was held on July 10, 2019.
Under the Settlement Agreement, the Defendants have agreed to pay
$750,000 to resolve the litigation. This amount includes: (1)
approximately $465,000 to pay damages to the Settlement Class
members; (2) $15,000 as an award to be split by the Named
Plaintiffs for their participation in the litigation; (3) $10,000
to Ms. Blofstein for settlement of her retaliation claim against
the Defendants; (4) attorneys' fees in the amount of $250,000; and
(5) costs in the amount of $10,000.
Each of the 145 class members will receive a pro rata portion of
the of the damages amount based on the number of work weeks that
they worked during the class period, as a fraction of the total
work weeks by all participating settlement class members. The
calculation is described as follows: Individual award = $465,000 x
Total weeks worked by participating class member Total weeks worked
by all the class members. Based upon this calculation, if all
claim forms received were to be paid, the total payout is estimated
to total $228,034.04, which is 49% of the total $465,000 damage
fund. The highest claim is approximately $4,000 and the lowest
claim amount is approximately $22. The average claim value to the
class member is approximately $1,600.
The parties informed the Court at the Final Settlement Hearing that
the Defendants intend to take out a loan in order to fund this
settlement. This is because the Defendants do not have sufficient
assets to handle the settlement claims. The Defendants' financial
situation became relevant during negotiations of the settlement.
Judge Surrick is satisfied that final certification of the class
under Rule 23 is appropriate. Therefore, he will certify the
proposed class for the purposes of settlement approval.
Next, based upon a review of the pleadings, and after consideration
of the arguments raised at the Final Settlement Hearing, the Judge
is satisfied that the FLSA collective opt-in Plaintiffs are
similarly situated to the Named Plaintiffs -- Ms. Blofstein and Ms.
Flores.
Having examined the proposed Settlement Agreement in light of the
Girsh v. Jepson factors, the Judge is satisfied that the settlement
is "fair, reasonable, and adequate."
As part of the Settlement, the parties request that each of the two
Named Plaintiffs receive a service payment of $7,500. Under the
circumstances, the Judge finds that awards to the Named Plaintiffs
are reasonable and appropriate.
In addition, the parties have agreed to compensate Ms. Blofstein an
additional $10,000 as settlement for her retaliation claims against
the Defendants. In light of the serious allegations, and in light
of the sufficient factual specificity in the Complaint to support
her prima facie case, the Judge is satisfied that an award of
$10,000 to settle Ms. Blofstein's claims of retaliation is fair and
appropriate.
The Named Plaintiffs request Court approval of attorneys' fees for
the class counsel in the amount of $250,000, which constitutes
one-third (1/3) of the gross settlement amount of $750,000. They
also request the Court to approve reimbursement of the class
counsel's out-of-pocket costs, capped at $10,000.
The Judge is satisfied that the requested attorneys' fees and costs
are justified by the counsel's successful and efficient resolution
of the matter and the significant cash shares for the class
members. Also, the negative lodestar in the case provides
additional support for the requested attorneys' fees. Based upon
these circumstances, the Judge is satisfied with the reasonableness
of the requested fee and will approve the class counsel's request
for $250,000 in attorneys' fees. In addition, the class counsel is
entitled to be reimbursed for their litigation-related expenses in
the amount of $10,000.
For the foregoing reasons, Judge Surrick granted the Plaintiffs'
Unopposed Motion for Final Settlement Approval. An appropriate
Order follows.
A full-text copy of the Court's July 19, 2019 Memorandum is
available at https://is.gd/iiU8Qv from Leagle.com.
MICHELLE BLOFSTEIN & ALEXIS FLORES, FOR THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED, Plaintiffs, represented by DAVID J. COHEN --
dcohen@stephanzouras.com -- STEPHAN ZOURAS LLP, HALEY R. JENKINS,
STEPHAN ZOURAS, LLP, JAMES B. ZOURAS, STEPHAN ZOURAS LLP & RYAN F.
STEPHAN, STEPHAN ZOURAS LLP.
MICHAEL'S FAMILY RESTAURANT, INC., Defendant, represented by
MATTHEW J. HANK -- mhank@littler.com -- LITTLER MENDELSON, P.C.,
MARC D. ESTEROW , LITTLER MENDELSON, P.C. & THOMAS PASCHOS --
TPaschos@paschoslaw.com -- THOMAS PASCHOS & ASSOCIATES, PC.
EMMANUEL PETROGIANNIS, also known as MIKE PETROGIANNIS, IOANNIS
PETROGIANNIS, also known as JOHN PETROGIANNIS & NIKOLAOS
PETROGIANNIS, also known as NICK PETROGIANNIS, Defendants,
represented by MATTHEW J. HANK, LITTLER MENDELSON, P.C. & THOMAS
PASCHOS, THOMAS PASCHOS & ASSOCIATES, PC.
MICHIGAN STATE: Franczek P.C. Attorneys Discuss Title IX Lawsuit
----------------------------------------------------------------
William Pokorny, Esq. -- wrp@franczek.com -- and Jackie Wernz, Esq.
-- jgw@franczek.com -- of Franczek P.C., in an article for JDSupra,
report that a recent class-action lawsuit filed in Michigan, which
seeks to overturn scores of Title IX decisions at Michigan State
University, is the first of its kind. The case relies on a 2018
federal court ruling in Michigan that public colleges and
universities must allow direct confrontation of the accuser by the
accused in such proceedings.
The recent lawsuit, Doe v. Michigan State University, involves a
complaint by a male former-MSU student who says he was wrongly
accused and found guilty of sexual assault by the University in
2015. Among other concerns, he claims that he was not allowed to
cross-examine his accuser during the adjudication of the complaint,
which he alleges denied him due process in violation of the
Fourteenth Amendment to the U.S. Constitution. Attorneys for the
student recently amended the lawsuit to include a similar due
process claim against MSU by a class of students. The proposed
class includes "[a]ll MSU students and/or former students,
including prospective and future students, subjected to a
disciplinary sanction, suspension, or expulsion pursuant to a
finding of responsibility under the [relevant grievance policies] .
. . without first being afforded a live hearing and opportunity for
cross examination of witnesses." The plaintiffs seek a declaration
that MSU's disciplinary policies and practices are
unconstitutional, a prohibition of future use of the policies and
practices, and individual relief for the named plaintiff.
Plaintiffs also seek to vacate and expunge all "findings and
sanctions resulting from the unconstitutional process" for the
entire class of plaintiffs.
The lawsuit relies on a 2018 decision by the Sixth Circuit Court of
Appeals, Doe v. Baum. The court in Baum held that due process
requires the opportunity for a live hearing and cross-examination
for Title IX disciplinary proceedings at public universities. The
case was heralded as an unparalleled decision and win for
proponents of the rights of the accused in the Title IX process.
Although the reach of the decision is limited to the Sixth
Circuit's jurisdiction of Kentucky, Michigan, Ohio, and Tennessee,
the proposed Title IX rules currently under review by the
Department of Education would apply the requirements in Baum to
both public and private schools across the country.
It is uncertain whether the case will be able to proceed as a class
action or what the outcome of the lawsuit will be. However, the
case is an important reminder that the legal pendulum in Title IX
cases has swung heavily in the direction of the accused. Public
colleges and universities should use this example as an opportunity
to review their Title IX policies and procedures to mitigate the
risk of due process violations. While they are less directly
affected, private colleges and universities should also keep a
close eye on the developing law in this area, including the
anticipated Department of Education guidance. Frequent training for
administrators and employees who implement Title IX is also
increasingly necessary to keep up with the swift pace of change in
this area. [GN]
MIDWEST RECOVERY: Franklin Moves to Certify Class and Subclass
--------------------------------------------------------------
The Plaintiffs in the lawsuit titled MICHELL T. FRANKLIN, KARA
SAMPSON, CYBELE A. MUNSON, on behalf of themselves and all persons
similarly situated v. MIDWEST RECOVERY SYSTEMS, LLC., COOPER
FINANCIAL, LLC PREVIOUSLY SUED AS DOE NO. 1, MARK GRAY PREVIOUSLY
SUED AS DOE NO. 2, NATIONAL CREDIT ADJUSTERS, LLC PREVIOUSLY SUED
AS DOE NO. 3, Case No. 8:18-cv-02085-JLS-DFM (C.D. Cal.), move to
certify a Main Class and a Restitution Subclass.
The Main Class is comprised of:
All California residents whose SUBJECT LOAN DEBT INFORMATION
was furnished by Defendant Midwest to consumer reporting
agencies during the past two years from filing of the
original complaint. For purposes of this definition,
"SUBJECT LOAN DEBT INFORMATION" means information that a
debt was allegedly owed to any of the following original
creditors: VIP PDL Services, LLC, a/k/a VIP Loan Shop; SCS
Processing, LLC, a/k/a Everest Cash Advance; Action PDL
Services, LLC, a/k/a Action Payday; BD PDL Services, LLC,
a/k/a Bottom Dollar Payday, Integrity PDL Services, LLC,
a/k/a Integrity Payday Loans, a/k/a IPL Today; My Quick
Funds d/b/a Sierra Financial, LLC; Fast EFunds a/k/a
FastEfunds.com.
The Restitution subclass is comprised of:
All members of the Main Class who paid money to Defendant
Midwest after Midwest furnished the SUBJECT LOAN DEBT
INFORMATION to consumer reporting agencies.
The Plaintiffs bring this class action against Defendant Midwest
Recovery Systems, a collection agency, which attempted to extort
payment on old payday loan debt from 11,000 California residents.
Because the debt was not enforceable due to the passage of time,
not to mention the loans were themselves illegal, Midwest decided
to use the leverage of credit-reporting to compel borrowers to make
payments on the alleged debt, the Plaintiffs allege. The
Plaintiffs accused the Defendant of violating the California
Consumer Credit Reporting Agencies Act (CCRAA) and the California
Unfair Competition Law (UCL).
The Court will commence a hearing on October 18, 2019, 10:30 a.m.,
to consider the Motion.[CC]
The Plaintiffs are represented by:
Jeffrey Wilens, Esq.
LAKESHORE LAW CENTER
18340 Yorba Linda Blvd., Suite 107-610
Yorba Linda, CA 92886
Telephone: (714) 854-7205
Facsimile: (714) 854-7206
E-mail: jeff@lakeshorelaw.org
- and -
Jeffrey P. Spencer, Esq.
THE SPENCER LAW FIRM
2 Venture, Suite 220
Irvine, CA 92618
Telephone: (949) 240-8595
Facsimile: (949) 377-3272
E-mail: jps@spencerlaw.net
MONARCH RECOVERY: Santiago Suit Moved to E.D. New York
------------------------------------------------------
The case, Basilio Santiago, on behalf of himself and all others
similarly situated, the Plaintiff, vs. Monarch Recovery Management,
Inc. and Monarch Recovery Holdings, Inc., the Defendant, Case No.
606094/2019, was removed from the Supreme Court of New York,
Suffolk County, to the U.S. District Court for the Eastern District
of New York (Central Islip) on Aug. 21, 2019. The Eastern District
of New York Court Clerk assigned Case No. 2:19-cv-04795 to the
proceeding. The suit alleges violation of Fair Debt Collection
Act.
Monarch Recovery Management, Inc. is collection agency located in
Philadelphia, Pennsylvania.[BN]
The Plaintiff appears pro se.
Attorneys for the Defendants are:
Michael Zumwalt, Esq.
ABRAMS, GORELICK
FRIEDMAN & JACOBSON, LLP
One Battery Park Plaza, 4th Floor
New York, NY 10004
Telephone: (212) 419-8747
E-mail: mzumwalt@agfjlaw.com
MORGAN STANLEY: Bid to Dismiss GSE Bonds Antitrust Suit Pending
---------------------------------------------------------------
Managed Futures Premier Graham L.P. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 8,
2019, for the quarterly period ended June 30, 2019, that the motion
to dismiss the class action suit entitled, In re GSE Bonds
Antitrust Litigation, is pending.
Beginning on March 25, 2019, Morgan Stanley & Co. LLC ("MS&Co.")
was named as a defendant in a series of putative class action
complaints filed in the Southern District of New York, the first of
which was styled Alaska Electrical Pension Fund v. BofA Secs.,
Inc., et al.
Each complaint alleges a conspiracy to fix prices and restrain
competition in the market for unsecured bonds issued by the
following Government-Sponsored Enterprises: the Federal National
Mortgage Association; the Federal Home Loan Mortgage Corporation;
the Federal Farm Credit Banks Funding Corporation; and the Federal
Home Loan Banks.
Each complaint raises a claim under Section 1 of the Sherman Act
and seeks, among other things, injunctive relief and treble
compensatory damages.
On May 23, 2019, plaintiffs filed a consolidated amended class
action complaint, now styled In re GSE Bonds Antitrust Litigation.
The purported class period in the consolidated amended complaint is
now from January 1, 2009 to January 1, 2016.
On June 13, 2019, the defendants filed a joint motion to dismiss
the consolidated amended complaint.
Managed Futures Premier Graham L.P. is private fund launched by
Ceres Managed Futures LLC. It is managed by Graham Capital
Management, L.P. The fund engages in the speculative trading of
futures contracts, options on futures and forward contracts, and
forward contracts on physical commodities and other commodity
interests, including, but not limited to, foreign currencies,
financial instruments, metals, energy, and agricultural products.
It was formerly known as Managed Futures Charter Graham LP. Managed
Futures Premier Graham L.P was formed on July 15, 1998 and is
domiciled in the United States.
MORGAN STANLEY: Iowa Public Employees' Suit Underway
----------------------------------------------------
Managed Futures Premier Graham L.P. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 8,
2019, for the quarterly period ended June 30, 2019, that Morgan
Stanley & Co. LLC ("MS&Co.") continues to defend a class action
suit entitled, Iowa Public Employees' Retirement System et al. v.
Bank of America Corporation et al.
In August of 2017, MS&Co. was named as a defendant in a purported
antitrust class action in the United States District Court for the
United States District Court for the Southern District of New York
styled Iowa Public Employees' Retirement System et al. v. Bank of
America Corporation et al. Plaintiffs allege, inter alia, that
MS&Co., together with a number of other financial institution
defendants, violated U.S. antitrust laws and New York state law in
connection with their alleged efforts to prevent the development of
electronic exchange-based platforms for securities lending.
The class action complaint was filed on behalf of a purported class
of borrowers and lenders who entered into stock loan transactions
with the defendants. The class action complaint seeks, among other
relief, certification of the class of plaintiffs and treble
damages.
On September 27, 2018, the court denied the defendants' motion to
dismiss the class action complaint.
No further updates were provided in the Company's SEC report.
Managed Futures Premier Graham L.P. is private fund launched by
Ceres Managed Futures LLC. It is managed by Graham Capital
Management, L.P. The fund engages in the speculative trading of
futures contracts, options on futures and forward contracts, and
forward contracts on physical commodities and other commodity
interests, including, but not limited to, foreign currencies,
financial instruments, metals, energy, and agricultural products.
It was formerly known as Managed Futures Charter Graham LP. Managed
Futures Premier Graham L.P was formed on July 15, 1998 and is
domiciled in the United States.
MOUNTAINVIEW CORRECTIONAL: Moore et al Seek Class Certification
---------------------------------------------------------------
In the class action lawsuit styled as BENSON MOORE, et al, the
Plaintiffs, vs. MIKE SLAGLE, et al, the Defendants, Case No.
1:19-cv-00242-FDW (W.D.N.C.), the Plaintiffs ask the Court to enter
an order granting class certification of the lawsuit.
According to the complaint, the Defendants abruptly discontinued
current and effective prescribe medications to inmates upon arrival
at Mountainview Correctional Institution, ignoring numerous
sick-call complaints and discontinuing medical accommodations.[CC]
NANTKWEST INC: Settlement in Sudunagunta Granted Final Approval
---------------------------------------------------------------
NantKwest, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 6, 2019, for the
quarterly period ended June 30, 2019, that the court in Sudunagunta
v. NantKwest, Inc., et al., has granted final approval of the
parties settlement and entered judgment.
In March 2016, a putative securities class action complaint
captioned Sudunagunta v. NantKwest, Inc., et al., No.
16‑cv‑01947 was filed in federal district court for the Central
District of California related to the company's restatement of
certain interim financial statements for the periods ended June 30,
2015 and September 30, 2015.
A number of similar putative class actions were filed in federal
and state court in California. The actions originally filed in
state court were removed to federal court, and the various related
actions have been consolidated.
Plaintiffs asserted causes of action for alleged violations of
Sections 11 and 15 of the Securities Act of 1933 and Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 and Rule 10b‑5
promulgated thereunder.
Plaintiffs sought unspecified damages, costs and attorneys' fees,
and equitable/injunctive or other relief on behalf of putative
classes of persons who purchased or acquired the company's
securities during various time periods from July 28, 2015 through
March 11, 2016.
In September 2017, the court denied defendants' motion to dismiss
the third amended consolidated complaint.
On August 13, 2018, the district court granted plaintiffs' motions
for class certification and to strike plaintiffs' claims under the
Securities Exchange Act of 1934 and Rule 10b‑5.
On August 24, 2018, at the district court's direction, plaintiffs
filed a fourth amended consolidated complaint. On August 27, 2018,
defendants petitioned the U.S. Court of Appeals for the Ninth
Circuit to authorize interlocutory appeal of the class
certification order. On September 7, 2018, defendants answered the
fourth amended consolidated complaint.
On September 21, 2018, the parties informed the Ninth Circuit that
they had reached a settlement in principle, and the parties moved
to stay appellate proceedings.
On September 24, 2018, the parties notified the district court that
they had reached a settlement in principle. On November 9, 2018,
the plaintiffs filed an unopposed motion for preliminary approval
of the settlement and notice to class members.
On January 9, 2019, the district court granted the motion for
preliminary approval.
A final approval hearing was held on April 29, 2019, and the
district court granted final approval and entered judgment on May
13, 2019.
Under the terms of the settlement, the company paid $12.0 million
to the plaintiffs as full and complete settlement of the
litigation. The company was responsible for $1.2 million of the
settlement amount, which was recognized in selling, general and
administrative expense during the third quarter of 2018, while the
remaining $10.8 million was fully funded by the company's insurance
carriers under its directors' and officers' insurance policy.
NantKwest said, "We and the insurance carriers paid the settlement
amount into a settlement fund in January 2019. Subsequent to
receiving final approval of the settlement on May 13, 2019, the
aforementioned settlement accrual, associated insurance claim
receivable and restricted cash were released and are no longer
reflected on our condensed consolidated balance sheets as of June
30, 2019."
NantKwest, Inc., a clinical-stage immunotherapy company, develops
immunotherapeutic treatments for cancer and viral infectious
diseases in the United States. The company was formerly known as
Conkwest, Inc. and changed its name to NantKwest, Inc. in July
2015. NantKwest, Inc. was founded in 2002 and is headquartered in
San Diego, California.
NEUBASE THERAPEUTICS: Awaits Court Ruling on Bid to Nix Class Suit
------------------------------------------------------------------
A motion to dismiss the class action with George Lehman and Insured
Benefit Plans, Inc. as lead plaintiffs is still pending, according
to the Form 10-Q of NeuBase Therapeutics, Inc. (formerly Ohr
Pharmaceutical, Inc.) filed with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2019.
On February 14, 2018, plaintiff, Jeevesh Khanna, commenced an
action in the Southern District of New York, against Ohr
Pharmaceutical, Inc. ("Ohr") and several current and former
officers and directors, alleging that they violated federal
securities laws between June 24, 2014 and January 4, 2018.
On August 7, 2018, the lead plaintiffs, now George Lehman and
Insured Benefit Plans, Inc., filed an amended complaint stating the
class period to be April 8, 2014 through January 4, 2018. The
plaintiffs did not quantify any alleged damages in their complaint
but, in addition to attorneys' fees and costs, they seek to
maintain the action as a class action and to recover damages on
behalf of themselves and other persons who purchased or otherwise
acquired Ohr common stock during the putative class period and
purportedly suffered financial harm as a result. Ohr and the
individuals dispute these claims and intend to defend the matter
vigorously.
On September 17, 2018, Ohr filed a motion to dismiss the
complaint.
On November 13, 2018, plaintiffs filed a motion to strike exhibits
appended to the motion to dismiss, which was fully briefed by the
parties prior to proceeding on the Defendants' motion to dismiss.
On May 10, 2019, the Court entered an order concluding that it is
unable to decide the Plaintiffs' motion to strike independently of
the Defendants' motion to dismiss and will consider the motions
together.
The Company said, "Briefing on Defendants' motion to dismiss has
now concluded, and the parties are awaiting further ruling of the
Court. This litigation could result in substantial costs and a
diversion of management's resources and attention, which could harm
the Company's business and the value of the Company's common
stock."
NeuBase Therapeutics, Inc., a biotechnology company, engages in the
development of various antisense therapies to address genetic
diseases in the United States. The company offers gene silencing
therapies, including the proprietary PATrOL platform, a
peptide-nucleic acid antisense oligonucleotide for genetic diseases
caused by mutant proteins, including the Huntington's disease and
myotonic dystrophy, as well as various other genetic disorders.
NeuBase Therapeutics, Inc. is headquartered in Pittsburgh,
Pennsylvania.
NEW HAVEN, CT: Court Hears Arguments in Lead Poisoning Class Suit
-----------------------------------------------------------------
Mary E. O'Leary, writing for New Haven Register, reports that the
New Haven Legal Assistance Association argued in Superior Court on
Aug. 6 that there is commonality among the estimated 300 young
children it seeks to define as a class for purposes of addressing
their elevated blood lead levels, while the city said they failed
to meet the strict definitions mandated by law.
Judge John Cordani already has granted a temporary injunction to
Legal Assistance, defining lead poisoning in all children under age
six as a blood lead level of 5 micrograms per deciliter and
ordering the apartments of the two named young plaintiffs
inspected.
Legal Assistance was represented by attorneys Amy Marx and Shelley
White, while the city had Roderick Williams of the corporation
counsel's office and private attorneys Daniel Blake and Elizabeth
Acee of LeClair Ryan and Andrew Cohen of Winnick Ruben Hoffnung
Peabody & Mendel.
White said not considering the children as a class could mean
inconsistent rulings for essentially the same issues, such as
timely inspections by the city, orders to the landlords for
abatement and protection for children while the work was underway.
The New Haven Health Department, without public notification last
November, decided not to do full inspections of the apartments of
two separate children whose blood lead levels exceeded the
definition of poisoning as defined by the Centers for Disease
Control and Prevention, as well as city ordinance.
Instead, it lowered the standard to a blood lead level of 20
micrograms, or two tests showing levels of 15 micrograms over three
months, which is the state standard. New Haven has the strictest
standard in the state.
Officials said they did this to save money as they only had two
inspectors and could not afford more hires.
As of Aug. 5, however, the city sent a request to the Board of
Alders to approve the transfer of $365,000 from several city
accounts in order to hire five inspectors. A hearing on the
proposed transfer is set for the Aug. 12 Finance Committee meeting
of the Board of Alders.
The city also has proposed an updated lead ordinance, but it has
been rejected by Legal Assistance as providing less protection with
too much discretion given to the director of public health.
Blake told Cordani that a permanent injunction still would devolve
to mini-trials based on differences specific to each child.
White also addressed the topic of federal housing standards for
Housing and Urban Development, which covers lead standards for its
properties.
The Housing Authority turns over information on lead problems to
the city for the large universe of Section 8 housing vouchers for
apartments in the private market and the city then does the
inspections and issues abatement orders.
"The bottom line is the federal law is by no means a substitute for
our very stringent and important city law. Our city law provides
protections that kick into place months sooner and these months
matter for children's health," Marx said after the court hearing.
The judge promised to make his decision on class action fairly
soon, as well as one on a procedural matter that the original suit
by Legal Assistance did not have a return date.
"The one part of this system that seems to work well is the labs do
indeed tell the state Department of Health of all their blood draws
(for young children) immediately. It appears within 24 hours and in
24 hours DPH sends that out to the city," Marx said.
"The city takes down the information, generates a referral card and
ships it over to a lead inspector," White said.
"The referral cards are made. That was the testimony. The question
is what do they do with the referral cards," Marx said. [GN]
NEW ORLEANS, LA: Court Severs Caluda Claims Against City
----------------------------------------------------------
In the case, ROBERT J. CALUDA, APLC, ET AL., Plaintiffs, v. THE
CITY OF NEW ORLEANS, ET AL., Defendants, SECTION: "E" (2), Civil
Action No. 19-2497 (E.D. La.), Judge Susie Morgan of the U.S.
District Court for the Eastern District of Louisiana severed the
Plaintiffs' claims against the City of New Orleans, and remanded to
the Civil District Court for the Parish of Orleans.
The case relates to ad valorem tax penalties on business personal
taxes. The Plaintiffs are taxpayers who paid business personal ad
valorem tax penalties under an ordinance first imposed by the City
in 1998. The ordinance imposed an initial 3% penalty on the day of
delinquency (February 1) and added a 30% penalty if the tax was
unpaid by April 1. If the tax remained unpaid after April 1, the
City referred the debt to a collection agency.
In order to challenge the penalties, the taxpayers were required to
file payment under protest by June 1 of the year the penalties were
imposed. However, because of a drafting error that included no
prescriptive period in the ordinance amended on April 17, 2000, the
payment-under-protest requirement did not apply from April 17, 2000
through March 5, 2002.
The delinquent taxpayers filed a class action suit against
Defendants Linebarger, Goggan, Blair & Sampson, L.L.P. and United
Governmental Services of Louisiana, Inc. ("UGSL") in the Civil
District Court for the Parish of Orleans on April 1, 2002. That
suit led to the Louisiana Supreme Court declaring unconstitutional
the tax penalties the ordinance imposed. The class action is still
ongoing.
On Jan. 18, 2019, the state trial court issued a judgment
certifying a class of those who paid real estate ad valorem taxes
from April 17, 2000 through March 5, 2002. The class certified
does not include the Plaintiffs in thiecase because the class is
defined as those who paid real estate (immovable) ad valorem taxes,
as opposed to business personal (movable) property taxes. On May
8, 2019, the Louisiana Court of Appeal for the Fourth Circuit
denied a writ seeking review of the judgment defining the class.
On Feb. 15, 2019, while the writ application was pending, the
Plaintiffs filed the instant putative class action petition against
Linebarger and UGSL in the Civil District Court for the Parish of
Orleans. They seek certification as a class action on behalf of
anyone who paid business personal ad valorem tax penalties to the
City during the applicable time period.
The Plaintiffs bring a claim against Linebarger and UGSL seeking
money they paid to the City, and the City subsequently paid to
Linebarger and UGSL. The Plaintiffs argue Linebarger and UGSL were
not authorized by law to engage in collection activities because
they did not register as debt collectors with the state. They
bring this claim against Linebarger and UGSL under LSA-R.S. Section
9:3581 et seq. and applicable federal statutes existing at the
time.
The Plaintiffs also allege Linebarger and UGSL acted intentionally,
knowingly and in concert in depriving them of funds by devices and
actions that the Defendants knew or should have known were
unethical and/or illegal, and were not valid because the Defendants
performed little or no work to obtain those sums.
On March 19, 2019, Defendants Linebarger and UGSL removed the
matter to the Court under 28 U.S.C. Sections 1441 and 1453. They
invoked the Court's original jurisdiction pursuant to 28 U.S.C.
Section 1332(d), the Class Action Fairness Act ("CAFA").
Linebarger and UGSL also invoked the Court's jurisdiction under 28
U.S.C. Section 1331, claiming the case arises "under the
Constitution, laws, or treaties of the United States" and, as a
result, removal was proper under 28 U.S.C. Section 1441(a).
Furthermore, they alleged the Court has supplemental jurisdiction
over the state law claims under 28 U.S.C. Section 1367(a).
On April 10, 2019, the City filed a motion to sever the Plaintiff's
claims against the City from their claims against Linebarger and
UGSL and to remand to state court only the claims against the City.
It argues the Court does not have jurisdiction over these claims
under 28 U.S.C. Section 1341, the Tax Injunction Act.
On April 16, 2019, the Plaintiffs filed a motion to remand the
entire case to state court. The motion cites several exceptions
that would make CAFA inapplicable and also argues the Tax
Injunction Act precludes this Court from exercising jurisdiction
over the claims against the City.
On April 23, 2019, Defendants Linebarger and UGSL filed their
opposition and response to the instant motions. Linebarger and
UGSL do not oppose the City's request to sever and remand the
claims against the City, so long as the claims against them are not
remanded. They argue the Plaintiffs have not proved any of the
CAFA exceptions apply. Linebarger and UGSL also argue the Tax
Injunction Act does not require the Court to remand claims against
them.
First, Judge Morgan finds that the Plaintiffs' federal claim is not
obviously without merit or so unsound as to deprive the Court of
federal question jurisdiction. As a result, she finds the
Plaintiffs' claims against Linebarger and UGSL arises under federal
law for purposes of 28 U.S.C. Sections 1331 and 1441(c)(1)(A).
Next, the Court has found that (1) the Plaintiffs' federal claim
against Linebarger and UGSL arises under federal law for purposes
of Section 1441(c)(1)(A), and (2) their claims against the City are
not within the original or supplemental jurisdiction of the
district court under Section 1441(c)(1)(B). Because the action
would be removable without the inclusion of the claims against the
City, the entire action was properly removed under Section
1441(c)(1). Pursuant to Section 1441(c)(2), the Judge must sever
the claims against the City and remand those claims to state court.
The Court retains jurisdiction over the remaining claims because
the Plaintiffs' federal claim against Linebarger and UGSL fall
within the Court's federal question jurisdiction under Section
1331, and the state law claims fall within the Court's supplemental
jurisdiction because they form part of the same case or
controversy.
With respect to the requirement that the Plaintiff class includes
more than 100 member, the Notice of Removal states "far more" than
100 businesses and persons paid the business personal ad valorem
tax penalties. The Judge finds the putative class exceeds 100
members, and the requirements of Section 1332(d)(2) are met.
She also finds persuasive the Ninth Circuit's reasoning in Coleman
v. Estes Exp. Lines, Inc. and holds she may consider only the
allegations in the Plaintiffs' state court petition in determining
whether the local controversy exception applies. Based on the
allegations in the state court petition, the Plaintiffs in the case
have not met their burden of proving two-thirds or more of putative
class members are citizens of Louisiana, and the Court cannot
ascertain whether the relief sought from UGSL is not "small change"
in comparison to relief sought against Linebarger. As a result,
the Judge finds that the Plaintiffs have not met their burden of
showing the proposed class seeks significant relief from local
Defendant UGSL.
The Judge then finds that the Plaintiffsdo not sufficiently
distinguish between the conduct of UGSL and that of Linebarger in
the state court petition. Hence, they have not met their burden of
showing the local controversy exception applies. Moreover, the
Plaintiffs have not satisfied their burden of proving Linebarger, a
Texas citizen, is not a primary Defendant. They have not met their
burden of showing two-thirds of the putative class are citizens of
Louisiana. As a result, the home state exception does not apply.
Finally, the Judge finds that the Plaintiffs' claims against
Linebarger and UGSL satisfy the requirements for CAFA jurisdiction
and do not fall within the local controversy exception, the home
state exception, or the governmental entity exception. CAFA
provides an alternative basis for jurisdiction over the Plaintiffs'
remaining claims.
For the foregoing reasons, Judge Morgan granted (i) Defendant the
City of New Orleans' motion to sever and remand, and (ii) the
Plaintiffs' motion to remand the claims against the Defendants
Linebarger and UGSL. She severed the Plaintiffs' claims against
the City of New Orleans, and remanded to the Civil District Court
for the Parish of Orleans. The Plaintiffs' claims against
Defendants Linebarger and UGSL. will proceed in the Court.
A full-text copy of the Court's July 19, 2019 Order is available at
https://is.gd/4I4SGX from Leagle.com.
Robert J. Caluda, APLC & New Orleans Private Patrol Service, Inc,
Plaintiffs, represented by Allain Freret Hardin -- afhardin@aol.com
-- Fransen & Hardin.
New Orleans City, Defendant, represented by Lawrence Blake Jones,
Blake Jones Law Firm, LLC & Errol Barry Conley, Law Office of Errol
B. Conley.
NEW ORLEANS, LA: Linebarger, UGSL Dropped as Defendants in Caluda
-----------------------------------------------------------------
Judge Susie Morgan of the U.S. District Court for the Eastern
District of Louisiana granted Defendants Linebarger, Goggan, Blair
& Sampson, L.L.P. and United Governmental Services of Louisiana
Inc. ("UGSL")'s motion to dismiss the case, ROBERT J. CALUDA, APLC,
ET AL., Plaintiffs, v. THE CITY OF NEW ORLEANS, ET AL., Defendants,
SECTION: "E" (2), Civil Action No. 19-2497 (E.D. La.).
The case relates to ad valorem tax penalties on business personal
taxes. The Plaintiffs are taxpayers who paid business personal ad
valorem tax penalties under an ordinance first imposed by the City
in 1998. The ordinance imposed an initial 3% penalty on the day of
delinquency (February 1) and added a 30% penalty if the tax was
unpaid by April 1. If the tax remained unpaid after April 1, the
City referred the debt to a collection agency.
In order to challenge the penalties, the taxpayers were required to
file payment under protest by June 1 of the year the penalties were
imposed. However, because of a drafting error that included no
prescriptive period in the ordinance amended on April 17, 2000, the
payment-under-protest requirement did not apply from April 17, 2000
through March 5, 2002.
The delinquent taxpayers filed a class action suit against
Linebarger and UGSL in the Civil District Court for the Parish of
Orleans on April 1, 2002. That suit led to the Louisiana Supreme
Court declaring unconstitutional the tax penalties the ordinance
imposed. The class action is still ongoing.
On Jan. 18, 2019, the state trial court issued a judgment
certifying a class of those who paid real estate ad valorem taxes
from April 17, 2000 through March 5, 2002. The class certified
does not include the Plaintiffs in thiecase because the class is
defined as those who paid real estate (immovable) ad valorem taxes,
as opposed to business personal (movable) property taxes. On May
8, 2019, the Louisiana Court of Appeal for the Fourth Circuit
denied a writ seeking review of the judgment defining the class.
On Feb. 15, 2019, while the writ application was pending, the
Plaintiffs filed the instant putative class action petition against
Linebarger and UGSL in the Civil District Court for the Parish of
Orleans. They seek certification as a class action on behalf of
anyone who paid business personal ad valorem tax penalties to the
City during the applicable time period.
The Plaintiffs bring a claim against Linebarger and UGSL seeking
money they paid to the City, and the City subsequently paid to
Linebarger and UGSL. The Plaintiffs argue Linebarger and UGSL were
not authorized by law to engage in collection activities because
they did not register as debt collectors with the state. They
bring this claim against Linebarger and UGSL under LSA-R.S. Section
9:3581 et seq. and applicable federal statutes existing at the
time.
The Plaintiffs also allege Linebarger and UGSL acted intentionally,
knowingly and in concert in depriving them of funds by devices and
actions that the Defendants knew or should have known were
unethical and/or illegal, and were not valid because the Defendants
performed little or no work to obtain those sums.
On March 19, 2019, Defendants Linebarger and UGSL removed the
matter to the Court under 28 U.S.C. Sections 1441 and 1453. They
invoked the Court's original jurisdiction pursuant to 28 U.S.C.
Section 1332(d), the Class Action Fairness Act ("CAFA").
Linebarger and UGSL also invoked the Court's jurisdiction under 28
U.S.C. Section 1331, claiming the case arises "under the
Constitution, laws, or treaties of the United States" and, as a
result, removal was proper under 28 U.S.C. Section 1441(a).
Furthermore, they alleged the Court has supplemental jurisdiction
over the state law claims under 28 U.S.C. Section 1367(a).
The City filed a motion to sever the Plaintiff's claims against it
from the Plaintiff's claims against Linebarger and UGSL and to
remand to state court only the claims against the City. The
Plaintiffs filed a motion to remand the entire case to state court.
Linebarger and UGSL opposed the Plaintiffs' motion to fully
remand.
On July 19, 2019, the Court severed the claims against the City and
remanded those claims to state court. It found it has jurisdiction
over the Plaintiffs' federal claim against Linebarger and UGSL
under the Fair Debt Collection Practices Act ("FDCPA") and over the
Plaintiffs' state law claims against Linebarger and UGSL.
The matter is before the Court on the motion to dismiss filed by
Defendants Linebarger and UGSL. The Plaintiffs oppose the motion.
Judge Morgan finds that the Plaintiffs are business entities, not
individual consumers. The Plaintiffs seek to recover penalties
paid under business personal ad valorem taxes -- debts that are
commercial in nature. As a result, the Plaintiffs fail to state a
claim under the FDCPA. The Judge dismisses the claim the
Plaintiffs bring under "applicable federal law.
As to the Plaintiffs' state law claims, the Judge finds that the
Plaintiffs have no private right of action under the Collection
Agency Regulation Act. As a result, she dismisses the Plaintiffs'
claim under the Collection Agency Regulation Act.
Finally, the Plaintiffs appear to bring a claim for breach of
contract against Linebarger and UGSL. The Plaintiffs do not allege
they were parties to the contract the City entered with Linebarger
and UGSL. As a result, to the extent the Plaintiffs challenge the
reasonableness of fees charged by Linebarger and UGSL, the Judge
dismisses their claim.
For the foregoing reasons, Judge Morgan granted Linebarger and
UGSL's motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. She dismissed with prejudice the
Plaintiffs' claims against Linebarger and UGSL. The Judge denied
as moot the Plaintiffs' motion for class certification.
A full-text copy of the Court's July 19, 2019 Order and Reasons is
available at https://is.gd/kRPCR0 from Leagle.com.
Robert J. Caluda, APLC & New Orleans Private Patrol Service, Inc,
Plaintiffs, represented by Allain Freret Hardin -- afhardin@aol.com
-- Fransen & Hardin.
New Orleans City, Defendant, represented by Lawrence Blake Jones,
Blake Jones Law Firm, LLC & Errol Barry Conley, Law Office of Errol
B. Conley.
NEW PRIME: Haworth Seeks to Certify Class of Junior Drivers
-----------------------------------------------------------
In the class action lawsuit styled as ROCKY L. HAWORTH, on behalf
of himself and all other similarly situated persons, the
Plaintiffs, vs. NEW PRIME, INC., the Defendants, Case No.
6:19-cv-03025-RK (W.D. Mo.), the Plaintiff moves the Court for an
Order conditionally certifying a class of:
"all similarly situated current and former junior or "B" Seat
Drivers who worked for New Prime from October 2, 2015 to the
present and to approve the mailing and electronic publishing of
notice to all putative class members."
Mr. Haworth brings this action on behalf of himself and other
similarly situated junior or "B" Seat Drivers on the grounds that
Defendant failed to pay him and other similarly situated workers
minimum wage pursuant to the Fair Labor Standards Act.[CC]
Attorneys for the Plaintiffs are:
Virginia Stevens Crimmins, Esq.
Matthew R. Crimmins, Esq.
CRIMMINS LAW FIRM, LLC
214 S. Spring Street
Independence, Mo 64050
Telephone: (816) 974-7220
Facsimile: (855) 974-7020
E-mail: m.crimmins@crimminslawfirm.com
v.crimmins@crimminslawfirm.com
- and -
Garrett M. Hodes, Esq.
HODES LAW FIRM, LLC
900 Westport Road, 2nd Floor
Kansas City, MO 64111
Telephone: (816) 931-1718
Facsimile: (816) 994-6276
E-mail: garrett@hodeslawfirm.com
NEW PROSPECT: Can Compel Arbitration in Baker FLSA Suit
-------------------------------------------------------
In the case, TOMMY BAKER, Plaintiff, v. NEW PROSPECT COMPANY,
Defendant, Civil Action No. 19-63 (W.D. Pa.), Judge Nora Barry
Fischer of the U.S. District Court for the Western District of
Pennsylvania granted the Defendant's Motion to Dismiss Amended
Complaint and Motion to Compel Arbitration.
In the employment case arising out of the oil and gas industry, the
Plaintiff Tommy Baker brings wage and hour claims under the Fair
Labor Standards Act and state law against the Defendant.
Presently before the Court are the Defendant's Motion, the
Plaintiff's Response thereto, the Defendant's Reply, the
Plaintiff's Supplemental Brief regarding Lamps Plus, Inc. v.
Varela, and the Defendant's Response to the Plaintiff's
Supplemental Brief.
After careful consideration of the parties' arguments and reviewing
the arbitration and other relevant provisions set forth in the
parties' Offer of Employment from New Prospect Company, in light of
binding Supreme Court precedent, i.e., Lamps Plus, supra, and,
Henry Schein, Inc. v. Archer & White Sales, Inc., as well as prior
decisions of the Court, i.e., Berryman v. Newalta Envir. Serv.,
Inc., and Kubischta v. Schlumberger Tech. Corp., Judge Fischer
granted the Defendant's Motion.
She opines that in deciding whether a party may be compelled to
arbitrate under the FAA, courts first consider (1) whether there is
a valid agreement to arbitrate between the parties and, if so, (2)
whether the merits-based dispute in question falls within the scope
of that valid agreement, i.e., the abitrability of the claim. The
first prong of this test is easily satisfied because there is an
arbitration pending at AAA Case No. 011900008055 which the
Plaintiff filed in reliance upon the arbitration clause contained
in the Offer of Employment from New Prospect and his corresponding
concession that he must arbitrate any claims as of the date that
agreement was executed, i.e., March 20, 2017.
The central dispute between the parties surrounds the second prong
of the test as they debate whether the Plaintiff's claims against
the Defendant prior to his execution of the agreement are also
subject to arbitration.
Following binding Supreme Court precedent in Henry Schein, Inc. v.
Archer & White Sales, Inc., which the Court must, if a valid
agreement exists, and if the agreement delegates the arbitrability
issue to an arbitrator, as in the case, the Court may not decide
the arbitrability issue," and the matter must be referred to
arbitration. Accordingly, Judge Fischer will refer the Plaintiff's
individual claims to arbitration and stay such claims pending the
arbitration.
With respect to the Plaintiff's collective and class action claims,
she notes that the Court has enforced a similar class/collective
action waiver in Kubischta v. Schlumberger Tech. Corp. To this
point, there have been no opt-ins to the collective action and the
matter has not been certified as a class action such that these
claims are wholly reliant upon the Plaintiff's ability to proceed
to litigate his claims in the Court.
Given that the Plaintiff's individual claims will be referred to
arbitration for the arbitrator to decide that issue, and the
parties have further agreed that the arbitrator will determine
whether the Plaintiff waived the right to participate in a class or
collective action, the Judge finds that dismissal of the
class/collective action claims, without prejudice, is in the
interests of justice so that any non-parties are not affected by a
stay of the matter. Therefore, the collective and class action
claims are dismissed, without prejudice.
For all of these reasons, Judge Fischer granted Defendant's Motion.
An appropriate Order follows.
A full-text copy of the Court's July 19, 2019 Memorandum Opinion is
available at https://is.gd/WzQf7J from Leagle.com.
TOMMY BAKER, individually and on behalf of all others similarly
situated, Plaintiff, represented by Andrew W. Dunlap --
adunlap@mybackwages.com -- Josephson Dunlap Law Firm, Michael A.
Josephson, Josephson Dunlap Law Firm, Joshua P. Geist
-- josh@goodrichandgeist.com -- Goodrich & Geist, P.C., William F.
Goodrich, Goodrich & Geist, P.C. & William Liles --
wliles@mybackwages.com -- Josephson Dunlap Law Firm, pro hac vice.
NEW PROSPECT COMPANY, Defendant, represented by Bruce R. Wilkin --
bwilkin@shackelford.law -- Shackelford Bowen McKinley & Norton
LLP.
NEW YORK INSULATION: Underpays Laborers, Bryzski Suit Alleges
-------------------------------------------------------------
MAREK BRYZSKI, individually and on behalf of all others similarly
situated, Plaintiff v. NEW YORK INSULATION, INC.; NEW YORK
INSULATION, LLC; and ANTHONY CARDINALE, Defendants, Case No.
1:19-cv-07421 (S.D.N.Y., Aug. 8, 2019) seeks to recover from the
Defendants unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act.
The Plaintiff Bryzski was employed by the Defendants as laborer.
New York Insulation, Inc. provides specialized fields of asbestos,
lead and mold abatement, thermal systems re-insulation and
structural fireproofing application. [BN]
The Plaintiff is represented by:
SLATER SLATER SCHULMAN LLP
Matthew Madzelan, Esq.
445 Broad Hollow Road, Suite 334
Melville, NY 11747
Telephone: (631) 420-9300
NOBILIS HEALTH: Judge Approves Cy Pres Distribution to Fund
-----------------------------------------------------------
Anita Balakrishnan, writing for Law Times, reports that Justice
Paul Perell approved a cy pres distribution to the Class
Proceedings Fund in a July 29 decision.
Lawyers who worked on the class action case say that funding future
class actions is a creative way to benefit class members -- who in
this case are investors.
The distribution of the settlement proceeds in Cappelli v. Nobilis
Health Corp., 2019 ONSC 4521 will benefit the fund "which accepted
the risk of this class action and without whose support, the class
proceeding would not have been viable at all," Perell wrote.
Alan Lenczner, founding partner of Lenczner Slaght Royce Smith
Griffin LLP, says the move could benefit investors.
"The money had to be distributed . . . Going to the Class
Proceedings Fund allows it to fund other class actions that may be
meritorious. It gives them a bit of a war chest," says Lenczner,
who acted in the case. Lenczner noted that the Class Proceedings
Fund had to pay his client, and now will get money back. "Often
[the court] will give it to an investor advocacy group such as
FAIR, or some other investor group. in this instance, the plaintiff
proposed it goes to the Class Proceedings Fund . . . In the end,
indirectly, it will benefit investors because there will be more
investor suits, right? They will be brought by counsel that require
some money, and so the Class Proceedings Fund will be able to fund
those lawsuits."
Jasminka Kalajdzic, associate professor at the University of
Windsor Faculty of Law and author of Class Actions in Canada, says
that she is a big supporter of the Class Proceedings Fund, which is
funded by levies.
But she says she had never seen a case taking the money that was
undistributed and paying it to the Class Proceedings Fund.
A representative of the Class Proceedings Fund did not immediately
respond to a request for comment.
In the decision, plaintiff Vince Cappelli was pursuing a secondary
market misrepresentation cause of action. The class counsel's
disbursements, mainly used to pay expert witnesses, had been
reimbursed in part by the Class Proceedings Fund, and that portion
was repaid to the Class Proceedings Fund when the settlement
happened.
"A distribution of this sum to the class is not economically
viable. The costs of the notice program and the distribution scheme
would wipe out any recovery to the class, which, in any event,
would be about $0.01 on the dollar," Perell wrote. "From a policy
perspective, cy-pres awards fulfill the compensatory and access to
justice purposes of the Class Proceedings Act, 1992, and they also
fulfill the behaviour modification policy goals of the
Act…..Where in all the circumstances an aggregate settlement
recovery cannot be economically distributed to individual class
members the court will approve a cy pres distribution to recognized
organizations or institutions that will benefit class members."
Hadi Davarinia, an associate in the Toronto office of Morganti &
Co. PC who represented the plaintiff, says his team made the
argument for the Class Proceedings Fund cy pres distribution after
reading a case where the distribution was made to The Investor
Protection Clinic at Osgoode Hall Law School.
"Whenever we do a cy pres distribution in a shareholder action, if
we can't get those specific shareholders money, we think, 'What
would benefit them if we aren't getting them cash?' We figured
anything that would help potential future shareholders' class
actions would be a benefit. They won't necessarily be involved, but
there could be some overlap," Davarinia says. "Obviously, the
number one goal is usually to get the injured parties financial
compensation, but if circumstances don't allow that we try to come
up with a creative way to benefit them."
While the decision is generally supportive of access to justice,
Kalajdzic says she would like to hear more about the judge's
reasoning in approving the novel distribution.
"There has so far been no call for expressions of interest from
charities or non-profits or academic institutions to say, 'Look,
here is some undistributed money. This is the nature of the class
action pursuant to which these monies are being paid. Do you have a
cause or project that would indirectly benefit the class members?
Let the judge then consider these competing bids and come up with
the best recipient.' There is no such transparency, at least not in
Ontario, and from a public policy perspective I think that would be
a better approach," she says. [GN]
NORTHLAND GROUP: Can't Compel Arbitration in Maher FDCPA Suit
-------------------------------------------------------------
In the case, JENNIFER MAHER, on behalf of herself and those
similarly situated, Plaintiff, v. NORTHLAND GROUP, INC., Defendant,
Civ. No. 17-2957 (KM) (JBC) (D. N.J.), Judge Kevin McNulty of the
U.S. District Court for the District of New Jersey denied
Northland's motion to compel arbitration.
The putative class action, originally filed in state court, arises
under the Fair Debt Collection Practices Act ("FDCPA"). Ms. Maher,
held a Macy's credit card, issued by Department Stores National
Bank ("DNSB"), a subsidiary of Citibank, that had an outstanding
balance.
On March 11, 2016, in an attempt to collect the debt, Northland
sent Maher a collection Letter. The Letter states that the
outstanding balance on the credit card account is $629.10. The
Letter makes a "settlement offer" of $471.84 (i.e., a discount of
approximately 25%).
On March 10, 2017, Ms. Maher, commenced the action by filing a
complaint in the Superior Court of New Jersey, Law Division, Bergen
County. The complaint attaches the collection letter that
Northland sent to Ms. Maher. The Letter contained an allegedly
misleading sentence that offered to settle the debt at a discount
but "misrepresented the tax consequences" of doing so.
Northland, was served with the complaint on March 30, 2017. On May
1, 2017, Northland removed the action to the U.S. District Court
under 28 U.S.C. Section 1441(a). Because the complaint arises
under a federal statute, the FDCPA., the Court would have original
federal-question jurisdiction under 28 U.S.C. Section 1331.
After removal, on May 8, 2017, Northland answered the complaint.
The following months were consumed by settlement conferences,
status conferences, and the like. Written discovery did proceed,
however, subject to various disputes and objections.
Some 22 months into the action, Northland obtained a copy of Ms.
Maher's cardholder account agreement, which contained a provision
requiring arbitration of claims on an individual basis. On Jan.
16, 2019, Northland filed the motion to compel arbitration that is
now before the Court. Ms. Maher has filed a response, and
Northland has filed a reply. Both sides' submissions are
accompanied by declarations with exhibits.
Ms. Maher opened her Macys charge account on June 29, 2014,
pursuant to an Opening Account Agreement. Her April 13, 2015,
monthly account statement contained a summary of changes to the
account and a copy of an amendment to the card agreement that would
take effect on Aug. 14, 2015. The New Card Agreement provides that
it will be governed by federal and South Dakota law. Most
pertinently, the New Card Agreement contains an Arbitration
Agreement.
Ms. Maher's complaint was filed on March 10, 2017; Northland's
motion to compel, however, was not filed until some 22 months
later, on Jan. 16, 2019. Ms. Maher argues that the motion to
compel arbitration therefore comes too late. By participating in
federal-court litigation, says Ms. Maher, Northland has waived an
arbitral forum.
Balancing all of the factors, Judge McNulty finds that Northland,
by its litigation conduct, has waived arbitration. He does not say
that the case is an egregious one: the delay is 22 months, not four
years; Northland pled the existence of an arbitration agreement as
an affirmative defense in its answer; Northland did not have
physical possession of the relevant Agreement; and there have been
no rulings on the merits of the case.
Still, he gives greater weight to the following factors: (a)
Northland at all times, beginning with its notice of removal,
participated in the case in a manner that conveyed intent to
litigate in the Court and oppose class certification (which, under
the Arbitration Agreement, would presumptively have not been an
issue); (b) the defense of arbitrability was pled in a boilerplate
manner, as one of 21 affirmative defenses; (c) the delay of 22
months in bringing the motion to compel arbitration was
substantial; (d) fact discovery was on the brink of completion when
Northland subpoenaed the Arbitration Agreement from its client,
DSNB, in January 2019; (e) Northland resisted the Plaintiff's
request for discovery regarding the basis of its arbitration
defense, claiming that the documents were not in its control; (f)
Northland nevertheless easily obtained the Arbitration Agreement
within days after service of a subpoena on DSNB, and its arguments
regarding the difficulty of doing smack of post hoc
rationalization; (g) the Arbitration Agreement could probably have
been obtained for the asking at any time, as Northland's principal,
DNSB, had every incentive to cooperate; and (h) some expenditure of
time and money in litigation may, as in Ehleiter itself, be
presumed, and some limited amount of that expenditure might not
have occurred in arbitration of Ms. Maher's claim on an individual
basis.
There are additional factors at play, including a lack of diligence
by Northland that borders on willfulness. The Judge therefore
finds that Northland has, by its participation in the litigation,
waived its right to compel arbitration of Ms. Maher's claims.
The Judge closes with a few words about issues not being discussed
or decided. First, he opines that the only agreement before the
Court is that of Ms. Maher; he does not speculate about other
cardholders' agreements. Second, because the matter will not be
referred to arbitration, he will deny as moot the Defendant's
motion for a stay of the action under the FAA. Third, arbitration
having been waived, he does not reach the remaining issues
regarding the scope and enforceability of the Arbitration
Agreement.
For the reasons he stated, Judge McNulty denied Northland's motion
to compel arbitration and stay the action. An appropriate order
accompanies the Opinion.
A full-text copy of the Court's July 19, 2019 Opinion is available
at https://is.gd/ZQB4oC from Leagle.com.
JENNIFER MAHER, on behalf of herself and those similarly situated,
Plaintiff, represented by RONALD IRA LEVINE & YONGMOON KIM --
ykim@kimlf.com -- Kim Law Firm LLC.
NORTHLAND GROUP INC, Defendant, represented by AARON RAPHAEL
EASLEY, SESSIONS, FISHMAN, NATHAN & ISRAEL, LLC, ANDREW EDWARD
KAMPF, BALLARD SPAHR LLC, DANIEL J.T. MCKENNA --
mckennad@ballardspahr.com -- BALLARD SPAHR, LLP & DANIEL
CHRISTOPHER FANASELLE, BALLARD SPAHR LLP.
NOVA LIFESTYLE: Defendants Argue Barney Suit Fails to State Claim
-----------------------------------------------------------------
Defendants in the federal putative class action suit initiated by
George Barney sought the Court's ruling on August 2, 2019 to
dismiss the amended complaint for failure to state a claim upon
which relief can be granted, according to Nova LifeStyle, Inc.'s
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarterly period ended June 30, 2019.
On December 28, 2018, a federal putative class action complaint was
filed by George Barney against the Company and its former and
current CEOs and CFOs (Thanh H. Lam, Ya Ming Wong, Jeffery Chuang
and Yuen Ching Ho) in the United States District Court for the
Central District of California, claiming the Company violated
federal securities laws and pursuing remedies under Sections 10(b)
and 20(a) of the Security Exchange Act of 1934 and Rule 10b-5.
Richard Deutner and ITENT EDV were subsequently substituted as
plaintiffs and, on June 18, 2019, they filed an Amended Complaint.
In the Amended Complaint, plaintiffs seek to recover compensatory
damages caused by the Company's alleged violations of federal
securities laws during the period from December 3, 2015 through
December 20, 2018.
Plaintiffs claim that the Company: (1) overstated its purported
strategic alliance with a customer in China to operate as lead
designer and manufacturer for all furnishings in such customer's
planned US$460 million senior care center in China; (2) the Company
inflated its reported sales in 2016 and 2017 with the Company's two
major customers; and (3) as a result, the Company's public
statements were materially false and misleading at all relevant
times.
In support of these claims, plaintiffs rely primarily upon a blog
appearing in Seeking Alpha on December 21, 2018 in which it was
claimed that an investigation of the Company failed to confirm the
existence of several entities identified as significant customers,
Plaintiffs purported to verify some of the information alleged in
the Seeking Alpha blog.
The Company denies the material allegations of the Amended
Complaint and plans to defend the action vigorously.
On August 2, 2019, defendants moved to dismiss the Amended
Complaint for failure to state a claim upon which relief can be
granted. Defendants argued that the Seeking Alpha blog was not a
sufficiently reliable source to serve as the basis of a federal
securities claim, that plaintiffs used the wrong company names in
seeking to locate the Company's customers, plaintiffs could not
establish loss causation, and plaintiffs did not adequately allege
intentional or reckless misrepresentations.
Nova LifeStyle, Inc., together with its subsidiaries, designs,
manufactures, markets, and sells residential and commercial
furniture for middle and upper middle-income consumers worldwide.
Nova LifeStyle, Inc. was founded in 2003 and is headquartered in
Commerce, California.
NRA GROUP: 7th Cir. Affirms Judgment in Bernal FCDPA Suit
---------------------------------------------------------
In the case, JOSEPH BERNAL, individually and on behalf of others
similarly situated, Plaintiff-Appellant, v. NRA GROUP, LLC,
Defendant-Appellee, Case No. 17-3629 (7th Cir.), Judge Diane S.
Sykes of the U.S. Court of Appeals for the Seventh Circuit affirmed
the district court's judgment for NRA.
Bernal bought a monthly pass to Six Flags amusement parks. The
contract said that if he fell behind on his payments, he would be
billed for any amounts that are due and owing plus any costs
(including reasonable attorney's fees) incurred by Six Flags in
attempting to collect amounts due.
After Bernal missed several monthly payments, Six Flags hired AR
Assist, a debt collector, to help recover the balance. Under their
contract, AR Assist could charge Six Flags a 5% management fee plus
an additional amount based on the number of days the debt was
delinquent (in the case, an additional 20%). No one disputes that
this was a reasonable fee, nor that arrangements like this are
common in the market. In turn, AR Assist hired the NRA Group as a
subcontractor.
NRA then sent Bernal a collection letter asking for the $267.31 he
owed, plus $43.28 in costs—which is technically even less than
the 25% fee NRA was authorized by contract to charge. The letter
gave Bernal two options: He could pay the sum directly to NRA,
which would then remit the collection fee to AR Assist, minus its
own fee. Or he could pay the sum to Six Flags, in which case Six
Flags would have to pay AR Assist separately.
Bernal did neither. He reasoned that it couldn't possibly have
cost NRA $43.28 to mail a single collection letter. So rather than
pay, he filed the class-action lawsuit under the Fair Debt
Collection Practices Act ("FDCPA"), alleging that NRA charged a fee
not "expressly authorized by the agreement creating the debt. Each
class member had entered into a contract with essentially the same
language.
After rejecting the parties' motions for summary judgment, the
district judge held a bench trial. As part of his legal
conclusions, he held that the percentage-based collection fee was
expressly authorized by the following language in the initial
agreement: "If your account is in arrears for more than 30 days
(after you miss two payments) and the Minimum Term has expired,
then your account will be permanently cancelled and you will be
billed for any amounts that are due and owing plus any costs
(including reasonable attorney's fees) incurred by us in attempting
to collect amounts due or otherwise enforcing this agreement."
The judge reached the conclusion even though two other circuits
have said otherwise when interpreting almost identical language.
Because no class member was charged more than what was authorized
by the contracts, the judge entered judgment for NRA.
The case asks whether a debt collector's fee counts as a collection
cost under that language.
Judge Sykes holds that that it does. The contract unambiguously
permits Six Flags to recover any cost it incurs in collecting
past-due payments, and that includes a standard collection fee.
The standard collection fee falls within the contract's broad
language authorizing "any costs" of collection. As a result, NRA's
collection letter did not violate the FDCPA.
The Judge expresss no opinion on whether the result would be
different if the bill had included purely speculative expenses.
Whatever relevance that concern might have, it isn't at issue in
the case. The contested $43.28 is not an estimate. It is the
precise amount that would have been due had Bernal paid his debt at
that time.
Based on this, the Judge affirmed.
A full-text copy of the Court's July 19, 2019 Order is available at
https://is.gd/Nh7FKP from Leagle.com.
Mary E. Philipps -- mephilipps@aol.com -- for Plaintiff-Appellant.
Steven T. Buquicchio, for Defendant-Appellee.
David J. Philipps -- davephilipps@aol.com -- for
Plaintiff-Appellant.
Charity Ann Olson -- Charity.Olson@brockandscott.com -- for
Defendant-Appellee.
Herman Daniel Hofman, for Defendant-Appellee.
NTT DATA: Court Dismisses Mandala Job Discrimination Suit
---------------------------------------------------------
In the case, GEORGE MANDALA & CHARLES BARNETT, individually and on
behalf of all others similarly situated, Plaintiffs, v. NTT DATA,
INC., Defendant, Case No. 18-CV-6591 CJS (W.D. N.Y.), Judge Charles
J. Siragusa of the U.S. District Court for the Western District of
New York (i) granted the Defendant's motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), and (ii) denied as moot
the Plaintiffs' motion to compel a Rule 26(f) conference.
The Plaintiffs filed their complaint on Aug. 15, 2018, and have not
yet asked the Court to certify the class alleged in the complaint.
In the pleading, it is alleged that both named Plaintiffs applied
for, interviewed for, and were offered positions in the Defendant's
company, one in Rochester, New York, the other in Frankfort,
Kentucky. Both the Plaintiffs are African-American men with
criminal convictions. They allege that the Defendant is a global
information technology services company with 18,000 employees in
North America.
The Plaintiffs assert three causes of action: (1) Disparate Impact
Discrimination under Title VII of the Civil Rights Act of 1964, on
behalf of themselves and what they label as the "Title VII
Disparate Impact Class"; (2) Discriminatory Denial of Employment
under the New York Human Rights Law and Article 23-A of the New
York Correction Law on behalf of Plaintiff Mandala and what they
label as the "NY Criminal History Discrimination Class"; (3) the
Defendant's Failure to Provide a Copy of New York Correction Law
Article 23-A in violation of New York General Business Law Section
380-g(d) on behalf of Plaintiff Mandala and what they label as the
"NY FCRA Class." The Plaintiff seek injunctive, compensatory, and
punitive damages.
The employment discrimination case is before the Court on
Defendant's motion to dismiss the Plaintiffs' class action
complaint in its entirety pursuant to Fed. R. Civ. P. 12(b)(1) and
(6), or 28 U.S.C. Section 1367(c)(3),1 or, in the alternative, to
dismiss certain claims and strike the Plaintiffs' class allegations
pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6), 12(f) and
23(d)(1)(D). The Plaintiffs have cross-moved for an order
compelling a conference pursuant to Fed. R. Civ. P. 26(f). The
Defendant cross-moved to stay discovery until the Court has decided
its motion to dismiss. The Court granted a stay from June 14,
2019, until oral argument and has reviewed the papers submitted in
support of the application, and in opposition thereto, and heard
oral argument on June 27, 2019.
The Defendant's primary argument is that the complaint fails to
state a prima facie claim for disparate impact race discrimination.
The Plaintiffs respond that at the pleading stage, they are not
required to plead a prima facie case, citing, inter alia,
Swierkiewicz v. Sorema N.A., and that their allegations are
sufficient to plausibly allege a discrimination complaint under
Title VII.
Judge Siragusa finds that the Plaintiffs have not met their burden
of pleading a plausible claim of Title VII disparate impact and
granted the Defendant's motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6). Since he has dismissed the only
federal claim, the Judge declined to exercise jurisdiction over the
state claims. He denied the Plaintiffs' motion to compel a Rule
26(f) conference as moot. The Clerk is directed to enter judgment
for the Defendant and close the case.
A full-text copy of the Court's July 17, 2019 Order is available at
https://is.gd/SteW1l from Leagle.com.
George Mandala & Charles Barnett, individually and on behalf of all
others similarly situated, Plaintiffs, represented by Christopher
M. McNerney -- cmcnerney@outtengolden.com -- Outten & Golden LLP,
Elizabeth V. Stork -- estork@outtengolden.com -- Outten & Golden
LLP, Alexis J. Hoag, NAACP Legal Defense & Educational Fund, Inc.,
Rachel M. Kleinman, NAACP Legal Defense & Educational Fund, Inc. &
Ossai Miazad -- om@outtengolden.com -- Outten & Golden LLP.
NTT Data, Inc., Defendant, represented by Jacqueline Phipps Polito
-- jpolito@littler.com -- Littler Mendelson, P.C. & Jessica F.
Pizzutelli, Littler Mendelson, P.C..
NUSRET MIAMI: Court Certifies Class of Tipped Employees
-------------------------------------------------------
In the class action lawsuit styled as MELISSA COMPERE, on behalf of
herself and all others similarly situated, the Plaintiff, v. NUSRET
MIAMI, LLC, d/b/a Nusret Steakhouse, a Florida limited liability
company, NUSRET GOKCE, an individual, the Defendants, Case No.
1:19-cv-20277-KMM (S.D. Fla.), the Hon. Judge K. Michael Moore
entered an order on Aug. 21, 2019:
1. granting Plaintiff's motion to certify a collective class
of:
"all front-of-the-house tipped employees who worked at
Nusret Steakhouse in Miami within the two years preceding
this lawsuit and who, as a result of Defendants' policy of
requiring Class Members to share tips with non-tipped
employees and to work without being paid an hourly wage,
earned less than the applicable minimum and/or overtime wage
for one or more weeks";
2. denying without prejudice Nusret Miami's partial motion to
dismiss declaratory judgment claim;
3. directing Parties to meet and confer on the appropriate
notice to be provided to potential class members;
4. instructing Parties to file a proposed joint notice and
notice plan on or before September 23, 2019, which shall not
exceed 15 pages.
The Court said, "Although Compere is a former employee, she has
moved for conditional certification of a collective action that
includes both current and former employees. Because the Court finds
that conditional certification of a collective action is
appropriate at this stage, a declaration that Defendants' policies
and procedures violate the FLSA would impact any current employees
who opt in to this case. Thus, Defendant's motion to dismiss the
declaratory judgment Claim is denied without prejudice."
On January 18, 2019, the Plaintiff filed the collective action
complaint on behalf of herself and all others similarly situated
against Defendants seeking relief under the Fair Labor Standards
Act and the Declaratory Judgment Act.
The Plaintiff alleges that she and other front-of-the-house tipped
employees were (1) forced to participate in a tip pool or
tip-share, in which tips were shared with non-tipped employees and
(2) paid below the minimum and overtime wage for tipped
employees.[CC]
NVIDIA CORP: Mellanox Technologies Still Defends Stein Class Suit
-----------------------------------------------------------------
NVIDIA Corporation disclosed in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
July 28, 2019, that Mellanox Technologies Ltd. remains a defendant
in a class action suit entitled, Stein v. Mellanox Technologies,
Ltd., et al.
On May 3, 2019, an alleged stockholder of Mellanox filed a putative
class action lawsuit alleging that the proxy statement filed by
Mellanox in connection with the stockholder vote on NVIDIA's
pending acquisition of Mellanox violates Sections 14(a) and 20(a)
of the Securities Exchange Act of 1934 and asserting claims under
those statutes against Mellanox and its board of directors as well
as NVIDIA.
The complaint, which is captioned Stein v. Mellanox Technologies,
Ltd., et al., Case No. 19-2428 (United States District Court,
Northern District of California), seeks declaratory and injunctive
relief and unspecified damages.
NVIDIA and Mellanox announced in March this year that the companies
have reached a definitive agreement under which NVIDIA will acquire
all of the issued and outstanding common shares of Mellanox for
$125 per share in cash, representing a total enterprise value of
approximately $6.9 billion. The acquisition will unite two of the
world's leading companies in high performance computing (HPC).
Together, NVIDIA's computing platform and Mellanox's interconnects
power over 250 of the world's TOP500 supercomputers and have as
customers every major cloud service provider and computer maker.
A number of other alleged Mellanox stockholders have filed
substantially similar lawsuits against Mellanox and its directors
in the United States District Court for the Northern District of
California and in the United States District Court for the Southern
District of New York, but to date, NVIDIA has not been named as a
defendant in any of these other lawsuits.
NVIDIA Corporation operates as a visual computing company
worldwide. It operates in two segments, GPU and Tegra Processor.
The company was founded in 1993 and is headquartered in Santa
Clara, California.
NVIDIA CORP: Says Securities Suit Plaintiffs Fail to State Claim
----------------------------------------------------------------
NVIDIA Corporation, on August 2, 2019, has moved to dismiss the
consolidated class suit, In Re NVIDIA Corporation Securities
Litigation, on the basis that plaintiffs failed to state any claims
for violations of the securities laws by NVIDIA or the named
defendants, according to the Company's Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended July 28, 2019.
On December 21, 2018, a purported securities class action lawsuit
was filed in the United States District Court for the Northern
District of California, captioned Iron Workers Joint Funds v.
Nvidia Corporation, et al. (Case No. 18-cv-7669), naming as
defendants NVIDIA and certain of NVIDIA's officers.
On December 28, 2018, a substantially similar purported securities
class action was commenced in the Northern District of California,
captioned Oto v. Nvidia Corporation, et al. (Case No. 18-cv-07783),
naming the same defendants, and seeking substantially similar
relief.
On February 19, 2019, a number of shareholders filed motions to
consolidate the two cases and to be appointed lead plaintiff and
for their respective counsel to be appointed lead counsel.
On March 12, 2019, the two cases were consolidated under case
number 4:18-cv-07669-HSG and titled In Re NVIDIA Corporation
Securities Litigation.
On May 2, 2019, the Court appointed lead plaintiffs and lead
counsel.
On June 21, 2019, the lead plaintiffs filed a consolidated class
action complaint. The consolidated complaint asserts that the
defendants violated Section 10(b) of the Securities Exchange Act of
1934, and SEC Rule 10b-5, by making materially false or misleading
statements related to channel inventory and the impact of
cryptocurrency mining on GPU demand between May 10, 2017 and
November 14, 2018. The plaintiffs also allege that the NVIDIA
executives who they named as defendants violated Section 20(a) of
the Exchange Act.
The plaintiffs seek class certification, an award of unspecified
compensatory damages, an award of reasonable costs and expenses,
including attorneys' fees and expert fees, and further relief as
the Court may deem just and proper.
On August 2, 2019, NVIDIA moved to dismiss the consolidated class
action complaint on the basis that plaintiffs failed to state any
claims for violations of the securities laws by NVIDIA or the named
defendants.
NVIDIA Corporation operates as a visual computing company
worldwide. It operates in two segments, GPU and Tegra Processor.
The company was founded in 1993 and is headquartered in Santa
Clara, California.
NVIDIA: Ct. Extends Page Limit in Securities Suit Dismissal Bid
---------------------------------------------------------------
In the case, In re NVIDIA CORPORATION SECURITIES LITIGATION. This
Document Relates to: All Actions, Case No. 4:18-cv-07669-HSG (N.D.
Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District Court for
the Northern District of California granted the parties leave to
(1) file a motion to dismiss that exceeds Local Rule 7-2(b)'s
25-page limitation by up to 10 pages; (2) allow the Plaintiffs to
file an opposition to the Defendants' motion to dismiss that
exceeds Local Rule 7-3(a)'s 25-page limitation by up to 10 pages;
and (3) file a reply to the Plaintiffs' opposition that exceeds
Local Rule 7-3(c)'s 15-page limitation by up to 5 pages.
On June 21, 2019, the Plaintiffs filed their Consolidated Class
Action Complaint for Violations of the Federal Securities Laws,
which contains 210 separately numbered paragraphs on 62 pages. The
Amended Complaint alleges that 13 separate statements made by the
Defendants over the 18-month Class Period were actionably false
under the federal securities laws, and each such statement was made
in a separate public document and/or forum.
On Aug. 2, 2019, the Defendants intend to file a motion to dismiss
each of the Plaintiffs' claims on the ground that each of these
claims fail to state a claim upon which relief can be granted.
They are filing one single motion to dismiss on behalf of all the
four Defendants.
Although Defendants endeavor to keep their Motion as brief as
possible, they believe that they cannot adequately address each of
their arguments in the 25 pages afforded by Local Rule 7-2(b).
They submit that their Motion is concise, free of repetition, and
addresses only pertinent points and authorities, but that an
additional 10 pages is needed to fully address each of the
foregoing arguments and supporting authority.
The Plaintiffs intend to file a single opposition to the four
Defendants' motion to dismiss. Although they respectfully submit
that their Opposition will be concise, free of repetition, and
address only pertinent points and authorities raised in the
Defendants' Motion, the Plaintiffs anticipate requiring an
additional 10 pages beyond the 25 pages afforded by Local Rule
7-3(a) to adequately oppose the Defendants' Motion in light of the
heightened page limit that the Defendants request.
In consideration of the heightened page limits of the Motion and
Opposition, the Defendants' believe their reply to the Plaintiffs'
Opposition cannot be adequately stated in the 15 pages afforded by
Local Rule 7-3(c).
Accordingly, the parties, by and through their counsel of record,
stipulated and agreed, and subject to order of the Court, as
follows: (i) the Defendants' Motion may exceed the page limitation
in Local Rule 7-2(b) by 10 pages; (ii) the Plaintiffs' Opposition
to the Defendants' Motion may exceed the page limitation in Local
Rule 7-3(a) by 10 pages; and (iii) the Defendants' reply to the
Plaintiffs' Opposition may exceed the page limitation in Local Rule
7-3(c) by five pages.
Pursuant to the parties' stipulation, Judge Gilliam so ordered.
A full-text copy of the Court's July 19, 2019 Order is available at
https://is.gd/eHqidh from Leagle.com.
Iron Workers Local 580 Joint Funds, on behalf of itself and all
others similarly situated, Plaintiff, represented by Jonathan
Daniel Uslaner, Esq. -- jonathanu@blbglaw.com -- Bernstein
Litowitz
et al.
Michael Oto, Consol Plaintiff, represented by J. Alexander Hood,
II, Esq. -- ahood@pomlaw.com -- Pomerantz LLP, Jennifer Pafiti,
Esq. -- jpafiti@pomlaw.com -- Pomerantz LLP & Jeremy A. Lieberman,
Esq. -- jalieberman@pomlaw.com -- Pomerantz LLP, pro hac vice.
NVIDIA Corporation, Jensen Huang & Colette Kress, Defendants,
represented by John C. Dwyer, Esq. -- dwyerjc@cooley.com -- Cooley
LLP, Brett Hom De Jarnette, Esq. -- bdejarnette@cooley.com --
Cooley LLP, Claire Andrea McCormack, Skadden Arps Slate Meagher
and
Flom LLP, Emily Brooke Harrington, Esq. -- eharrington@cooley.com
-- Cooley LLP & Patrick Edward Gibbs, Esq. -- pgibbs@cooley.com --
Cooley LLP.
Oakland County Employees' Retirement System, Oakland County
Voluntary Employees' Benefit Association Trust & Oakland County
Employees' Retirement System Trust, Defendants, represented by
Adam
J. Zapala, Esq. -- azapala@cpmlegal.com -- Cotchett Pitre &
McCarthy LLP.
Henry Keller, Dennis Horanic & Jack Cravens, Movants, represented
by Jon A. Tostrud, Esq. -- jtostrud@tostrudlaw.com -- Tostrud Law
Group, P.C.
Meitav Dash Provident Funds and Pension Ltd., Movant, represented
by Jennifer Pafiti, Pomerantz LLP.
Shelly Weiss, Movant, represented by Christopher J. Keller, Esq.
--
ckeller@labaton.com -- Labaton Sucharow LLP, pro hac vice, Eric J.
Belfi, Esq. -- ebelfi@labaton.com -- Labaton Sucharow & Rudoff
LLP,
pro hac vice, Francis P. McConville, Esq. --
fmcconville@labaton.com -- Labaton Sucharow LLP, pro hac vice &
James Matthew Wagstaffe, Esq. -- wagstaffe@wvbrlaw.com --
Wagstaffe, von Loewenfeldt, Busch & Radwick LLP.
Julius Myron Rosen, Movant, represented by Ramzi Abadou, Esq. --
ramzi.abadou@ksfcounsel.com -- Kahn Swick Foti LLP.
NVDA Investor Group, Movant, represented by Melissa Ann Fortunato,
Esq. -- fortunato@bespc.com -- Bragar Eagel & Squire, P.C.
E. Ohman J:or Fonder AB, Movant, represented by Darren J. Check,
Esq. -- dcheck@ktmc.com -- Kessler Topaz Meltzer & Check, LLP, pro
hac vice, Jennifer Lauren Joost, Esq. -- jjoost@ktmc.com --
Kessler
Topaz Meltzer and Check LLP, John Christopher Browne, Esq. --
johnb@blbglaw.com -- Bernstein Litowitz Berger Grossman LLP, pro
hac vice, Michael D. Blatchley, Esq. -- michaelb@blbglaw.com --
Bernstein Litowitz Berger Grossmann LLP, pro hac vice, Naumon A.
Amjed, Esq. -- namjed@ktmc.com -- Kessler Topaz Meltzer Check,
LLP,
pro hac vice & Ryan Thomas Degnan, Esq. -- rdegnan@ktmc.com --
Kessler Topaz Meltzer Check, LLP, pro hac vice.
Stichting Pensioenfonds PGB, Movant, represented by Darren J.
Check, Kessler Topaz Meltzer & Check, LLP, Jennifer Lauren Joost,
Kessler Topaz Meltzer and Check LLP, John Christopher Browne,
Bernstein Litowitz Berger Grossman LLP, Jonathan Daniel Uslaner,
Bernstein Litowitz et al, Michael D. Blatchley, Bernstein Litowitz
Berger Grossmann LLP, Naumon A. Amjed, Kessler Topaz Meltzer
Check,
LLP & Ryan Thomas Degnan, Kessler Topaz Meltzer Check, LLP.
OCWEN MORTGAGE: Court Dismisses 2nd Amended Gray FCRA Suit
----------------------------------------------------------
In the case, RICHARD GRAY, et al., Plaintiffs, v. OCWEN MORTGAGE
SERVICING, INC., et al., Defendants, Case No. 18-cv-01864-JD (N.D.
Cal.), Judge James Donato of the U.S. District Court for the
Northern District of California granted the Defendants' motion to
dismiss the Plaintiffs' second amended complaint.
In the putative class action, Richard and Kimberly Gray, husband
and wife, have sued Defendants Ocwen Loan Servicing, LLC, Ocwen
Mortgage and Ocwen Financial Corp. The Grays assert claims under
the Fair Credit Reporting Act, the California Consumer Credit
Reporting Agencies Act, and the California Unfair Competition Law.
As alleged in the complaint, the Grays purchased in July 2005 real
property located on Marcus Avenue in Richmond, California as
community property. They used the proceeds of a loan from
Residential Mortgage Capital to purchase the property. A deed of
trust was recorded in favor of Residential Mortgage Capital and
secured by the Marcus Avenue Property.
In August 2009, Richard Gray filed for bankruptcy. Both the Marcus
Avenue Property and the deed of trust in favor of Residential
Mortgage Capital were included in his bankruptcy petition. He
obtained an order of discharge in November 2009.
In June 2015, while in contract to purchase another piece of real
property in Hercules, California, the Grays learned of an adverse
credit report. Ocwen, the Grays say, had submitted an inaccurate
and adverse credit report as to Kim's credit concerning Kim's
alleged failure to keep the loan secured by the Marcus Ave Property
current. Specifically, Ocwen Loan Servicing reported in June 2015
that Kimberly Gray had joint responsibility on an open loan with a
balance of "$402,808 as of Jun 2015," with an amount of "$24,591
past due as of Jun 2015." The Grays allege that because of this
report, they were denied a loan and their planned purchase of the
Hercules property fell through.
All of the Grays' legal claims against the Ocwen Defendants are
premised on the allegation that Ocwen's credit reporting as to
Kimberly Gray was misleading and/or inaccurate. The Grays allege
this for two reasons: (1) "After Nov. 24, 2009, when Richard
obtained his discharge in bankruptcy, Kim's personal liability was
discharged on the promissory note executed to acquire the Marcus
Avenue Property which was secured by the Deed of Trust," and (2)
"no deficiency judgment could be obtained" on the Gray's purchase
money loan and so "it was misleading and/or inaccurate for Ocwen to
fail to report that the debt as to which they reported Kim as
delinquent was not subject to a deficiency judgment."
Ocwen has moved to dismiss the complaint under Federal Rule of
Civil Procedure 12(b)(6).
Judge Donato holds that Richard Gray's bankruptcy discharge did not
extinguish Kimberly Gray's personal liability for the joint loan
that was secured by the Marcus Avenue Property. Ocwen simply
reported on that live obligation, and its credit report was not
misleading or inaccurate for reflecting it.
In addition, he holds that the purpose of a credit report is to
provide accurate credit information to potential creditors.
Ocwen's credit report reported on a debt that was incurred and
indisputably continued to exist, and the Plaintiffs have not
plausibly alleged any inaccuracy in Ocwen's credit reporting.
Because none of plaintiffs' claims can succeed without an
inaccurate credit report and because they have failed to plausibly
allege any inaccuracy, Judge Donato granted the Defendants' motion,
and dismissed the Plaintiffs' second amended complaint. The Court
would be well within bounds to deny any further amendment. Even
so, the Plaintiffs may amend within 14 days if they choose to do
so. Any amended complaint may not add new claims or the Defendants
without express leave of Court, and failure to amend by the
deadline will result in a dismissal with prejudice under Federal
Rule of Civil Procedure 41(b).
A full-text copy of the Court's July 19, 2019 Order is available at
https://is.gd/iJGWcS from Leagle.com.
Richard Gray & Kimberly Gray, Plaintiffs, represented by Harold
Mitchell Jaffe -- hmjaffe@gmail.com -- Attorney at Law.
Ocwen Mortgage Servicing, Inc., a U.S. Virgin Islands corporation,
Ocwen Financial Corporation, a Florida corporation & Ocwen Loan
Servicing, LLC, Defendants, represented by Kenneth Lee Marshall --
klmarshall@bryancave.com -- Bryan Cave Leighton Paisner LLP &
Alexandra Whitworth -- alex.whitworth@bclplaw.com -- Bryan Cave
Leighton Paisner LLP.
OLD POST: Murphy Files Class Suit in New York
---------------------------------------------
Old Post and Pony LLC is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as James Murphy and on behalf of all other persons similarly
situated, Plaintiff v. Old Post and Pony LLC, Defendant, Case No.
1:19-cv-07845 (S.D. N.Y., Aug. 21, 2019).
Old Post and Pony LLC is in the American restaurant business.[BN]
The Plaintiff is represented by:
Zare Khorozian, Esq.
Zare Khorozian Law, LLC
1047 Anderson Avenue
Fort Lee, NJ 07024
Tel: (201) 957-7269
Email: zare@zkhorozianlaw.com
PACIFIC BIOSCIENCES: Accrues $300K at June 30 for Settled Suits
---------------------------------------------------------------
Pacific Biosciences of California, Inc. said in its Form 10-Q
Report filed with the Securities and Exchange Commission on August
6, 2019, for the quarterly period ended June 30, 2019, that the
company has accrued a total amount of $300,000 as of June 30, 2019,
in connection with its settlement agreement for the five
merger-related lawsuits filed in 2018 and the first quarter of
2019.
In connection with the proposed acquisition of the company by
Illumina, five lawsuits were filed, with each lawsuit naming the
compnay and its directors as defendants.
Three putative class action complaints, captioned Wang v. Pacific
Biosciences of California, Inc., et al., No. 3:18-cv-7450 (N.D.
Cal.), Morrison v. Pacific Biosciences of California, Inc., et al.,
No. 3:18-cv-7654 (N.D. Cal.), and Speiser v. Pacific Biosciences of
California, Inc., et al., No. 3:19-cv-0072 (N.D. Cal.), were filed
in the United States District Court for the Northern District of
California on December 11, 2018, December 20, 2018, and January 4,
2019, respectively.
A fourth putative class action complaint, captioned Rosenblatt v.
Pacific Biosciences of California, Inc., et al., No. 1:18-cv-2005
(D. Del.), was filed in the United States District Court for the
District of Delaware on December 18, 2018.
An individual complaint, captioned Washington v. Pacific
Biosciences of California, Inc., et al., No. 5:18-cv-7614 (N.D.
Cal.), was filed in the United States District Court for the
Northern District of California on December 19, 2018.
Each of these lawsuits asserted claims under Section 14(a) and
Section 20(a) of the Securities Exchange Act of 1934 in connection
with the disclosures contained in our preliminary proxy statement
on Schedule 14A, filed with the Securities Exchange Commission (the
"SEC") on December 5, 2018, the company's definitive proxy
statement on Schedule 14A, filed with the SEC on December 18, 2018,
or both.
The complaints sought a variety of equitable and injunctive relief
including, among other things, enjoining the consummation of the
acquisition and awarding the plaintiffs costs and attorneys' fees.
Although the company's management believed that the claims were
without merit, the company agreed to make supplemental disclosures
in exchange for plaintiffs' agreement that the supplemental
disclosures would moot their claims. The company made these
supplemental disclosures in a proxy statement amendment on Schedule
14A, filed with the SEC on January 18, 2019.
On January 29, 2019, all parties to each of the lawsuits reached an
agreement pursuant to which we would pay a total of $300,000 in
attorneys' fees to the plaintiffs.
On January 29, 2019, each plaintiff filed a voluntary dismissal of
his or her lawsuit.
Pacific Biosciences said, "As of June 30, 2019, we paid a total
amount of $300,000 for the five lawsuits filed in 2018 and the
first quarter of 2019."
Pacific Biosciences of California, Inc. designs, develops, and
manufactures sequencing systems to resolve genetically complex
problems. The company was formerly known as Nanofluidics, Inc.
Pacific Biosciences of California, Inc. was founded in 2000 and is
headquartered in Menlo Park, California.
PERSPECTA INC: Says Units Will Be Liable in Forsyth Class Action
----------------------------------------------------------------
Perspecta Inc. disclosed in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2019, that former business units of Hewlett Packard
Enterprise Company ("HPE") now owned by the Company will be liable
in the Forsyth lawsuit for any recovery by plaintiffs previously
associated with the United States Public Sector business ("USPS")
business of HPE.
On May 31, 2018, Perspecta Inc. became an independent company
through the consummation of the spin-off of the "USPS" of DXC
Technology Company ("DXC").
The purported class and collective action, Forsyth, et al. v. HP
Inc. and Hewlett Packard Enterprise, was filed on August 18, 2016
in the U.S. District Court for the Northern District of California,
against HP Inc. and Hewlett Packard Enterprise Company ("HPE")
alleging violations of the Federal Age Discrimination in Employment
Act ("ADEA"), the California Fair Employment and Housing Act,
California public policy and the California Business and
Professions Code. Plaintiffs filed an amended complaint on
December 19, 2016.
Plaintiffs seek to certify a nationwide class action under the ADEA
comprised of all U.S. residents employed by defendants who had
their employment terminated pursuant to a work force reduction
("WFR") plan on or after December 9, 2014 (deferral states) and
April 8, 2015 (non-deferral states), and who were 40 years of age
or older at the time of termination.
Plaintiffs also seek to represent a Rule 23 class under California
law comprised of all persons 40 years or older employed by
defendants in the state of California and terminated pursuant to a
WFR plan on or after August 18, 2012. The case has remained stayed
while the parties have engaged in mediation with opt-in plaintiffs
who are subject to mandatory, individual arbitration agreements.
Two mediation sessions have taken place.
In October 2018, a settlement was reached with 16 named and opt-in
plaintiffs; that settlement has been completed.
On June 26-27, 2019, a second mediation was held, involving 145
opt-in plaintiffs. Discussions continue.
Perspecta Inc. provides enterprise information technology (IT)
services to government customers in the United States federal,
state, and local markets. Perspecta Inc. is headquartered in
Chantilly, Virginia.
PETRO RIVER: Appeal in Donelson-Friend Class Suit Still Pending
---------------------------------------------------------------
The appeal filed by the plaintiffs in the case entitled, Martha
Donelson and John Friend, et al. v. United States of America,
Department of the Interior, Bureau of Indian Affairs and Devon
Energy Production, LP, et al., remains pending, according to Petro
River Oil Corp.'s Form 10-K/A filing with the U.S. Securities and
Exchange Commission for the fiscal year ended April 30, 2019.
On August 11, 2014, Martha Donelson and John Friend amended their
complaint in an existing lawsuit by filing a class action complaint
styled: Martha Donelson and John Friend, et al. v. United States of
America, Department of the Interior, Bureau of Indian Affairs and
Devon Energy Production, LP, et al., Case No. 14-CV-316-JHP-TLW,
United States District Court for the Northern District of Oklahoma
(the "Proceeding").
The plaintiffs added as defendants twenty-seven (27) specifically
named operators, including Spyglass, as well as all Osage County
lessees and operators who have obtained a concession agreement,
lease or drilling permit approved by the Bureau of Indian Affairs
("BIA") in Osage County allegedly in violation of National
Environmental Policy Act ("NEPA"). Plaintiffs seek a declaratory
judgment that the BIA improperly approved oil and gas leases,
concession agreements and drilling permits prior to August 12,
2014, without satisfying the BIA's obligations under federal
regulations or NEPA, and seek a determination that such oil and gas
leases, concession agreements and drilling permits are void ab
initio. Plaintiffs are seeking damages against the defendants for
alleged nuisance, trespass, negligence and unjust enrichment. The
potential consequences of such complaint could jeopardize the
corresponding leases.
On October 7, 2014, Spyglass, along with other defendants, filed a
Motion to Dismiss the August 11, 2014 Amended Complaint on various
procedural and legal grounds.
Following the significant briefing, the Court, on March 31, 2016,
granted the Motion to Dismiss as to all defendants and entered a
judgment in favor of the defendants against the plaintiffs.
On April 14, 2016, Spyglass with the other defendants, filed a
Motion seeking its attorneys' fees and costs. The motion remains
pending.
On April 28, 2016, the Plaintiffs filed three motions: a Motion to
Amend or Alter the Judgment; a Motion to Amend the Complaint; and a
Motion to Vacate Order.
On November 23, 2016, the Court denied all three of Plaintiffs'
motions.
On December 6, 2016, the Plaintiffs filed a Notice of Appeal to the
Tenth Circuit Court of Appeals. That appeal is pending as of the
filing date of these financial statements.
The Company said, "There is no specific timeline by which the Court
of Appeals must render a ruling. Spyglass intends to continue to
vigorously defend its interest in this matter."
Petro River Oil Corp., an independent energy company, focuses on
the exploration and development of conventional oil and gas assets.
It primarily holds interests in the Mid-Continent Region in
Oklahoma, including Osage County and Kay County, Oklahoma. The
company is based in New York, New York.
PIZZA CZAR: Ewing Files FLSA Suit in Arkansas
---------------------------------------------
A class action lawsuit has been filed against Pizza Czar Inc. The
case is styled as James Ewing, individually and on behalf of all
others similarly situated, Plaintiff v. Pizza Czar Inc and Shane
Holloway, Defendants, Case No. 3:19-cv-00232-DPM (E.D. Ark., Aug.
21, 2019).
The case was filed pursuant to the Fair Labor Standards Act over
the denial of overtime compensation.
Pizza Czar Inc. is engaged in pizza parlor in West Plains, MO.[BN]
The Plaintiff is represented by:
Joshua Sanford, Esq.
Sanford Law Firm
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Tel: (501) 221-0088
Fax: (888) 787-2040
Email: josh@sanfordlawfirm.com
- and -
Stephen Rauls, Esq.
Sanford Law Firm
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Tel: (501) 221-0088
Fax: (888) 787-2040
Email: steve@sanfordlawfirm.com
PROTHENA CORP: Securities Class Suit in SDNY Ongoing
----------------------------------------------------
Prothena Corporation plc said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 6, 2019, for the
quarterly period ended June 30, 2019, that an amended complaint has
been made in the case entitled, In re Prothena Corporation plc
Securities Litigation.
On July 16, 2018, a purported class action lawsuit entitled Granite
Point Capital v. Prothena Corporation plc, et al., Civil Action No.
18-cv-06425, was filed in the U.S. District Court for the Southern
District of New York against the Company and certain of its current
and former officers.
The plaintiff seeks compensatory damages, costs and expenses in an
unspecified amount on behalf of a putative class of persons who
purchased the Company's ordinary shares between October 15, 2015
and April 20, 2018, inclusive.
The complaint alleges that the defendants violated federal
securities laws by allegedly making false and misleading statements
and omitting certain material facts in certain public statements
and in the Company's filings with the U.S. Securities and Exchange
Commission during the putative class period, regarding the clinical
trial results and prospects for approval of the Company's NEOD001
drug development program.
On October 31, 2018, the Court issued an order naming Granite Point
Capital and Simon James, an individual, as the lead plaintiffs in
the purported class action, which is now entitled In re Prothena
Corporation plc Securities Litigation.
On June 10, 2019, the Company and the individual defendants entered
into a binding memorandum of understanding with the lead plaintiffs
to settle that lawsuit based on an aggregate settlement amount of
$15.75 million.
The memorandum of understanding contemplates that the parties will
enter into a settlement agreement, which will be subject to
customary conditions including Court approval following notice to
the Company's current and former shareholders who are members of
the purported class, and a hearing at which the Court will consider
the fairness, reasonableness and adequacy of the settlement.
If the settlement is approved by the Court, it will resolve, as to
all settlement class members, all of the claims that were or could
have been brought in the lawsuit.
On June 20, 2019, consistent with the memorandum of understanding
to settle the lawsuit and intention to seek the Court's approval of
settlement of the lawsuit, the lead plaintiffs filed an amended
complaint, asserting in substance the same allegations as were made
in the original complaint.
Prothena said, "The Company continues to believe that the claims in
the lawsuit are without merit and, to the extent the settlement is
not finalized, intends to vigorously defend against them."
Prothena Corporation plc, a clinical-stage neuroscience company,
focuses on discovery and development of novel therapies for
life-threatening diseases in the United States. Prothena
Corporation plc was founded in 2012 and is based in Dublin,
Ireland.
REGAL AUTOMOTIVE: Grant Moves for Class Certification Under TCPA
----------------------------------------------------------------
The Plaintiff in the lawsuit captioned MONIFA GRANT, individually
and on behalf of others similarly situated v. REGAL AUTOMOTIVE
GROUP, INC., Case No. 8:19-cv-00363-SDM-JSS (M.D. Fla.), moves the
Court to:
(1) certify a class with respect to the claims for violation
of the Telephone Consumer Protection Act set forth in the
Plaintiff's Class Action Complaint;
(2) designate the Plaintiff as class representative; and
(3) designate the law firms of Shamis & Gentile, P.A., IJH
Law, Hiraldo P.A., Edelsberg Law, P.A., and Eisenband Law
P.A. as class counsel.
The case concerns the Defendant's willful disregard for the
Telephone Consumer Protection Act ("TCPA"), and the use of
automated technology to bombard individuals with unwanted,
prerecorded marketing calls. On October 4 and 5, 2017, the
Defendant, through its marketing vendor, BDC Promotions, Inc.,
("BDC"), attempted to send 14,032 unsolicited "ringless" voicemails
("RVMs") to consumers' cellular telephone numbers in violation of
the TCPA.
The proposed class is defined as:
The 5,9972 persons within the United States who, on
October 4, 2017 and/or October 5, 2017, were delivered the
following prerecorded voicemail to their cellular telephone:
Hi my name is Ken Halworth, General Manager with Regal
Honda. I'm sorry I missed you and didn't get a chance to
speak to you personally. I'm calling with some great news.
Your approved for a loan up to $40,000 and an interest rate
as low as 1.9%. Because of your preferred credit status,
were going to give you a free smartwatch or a free three-day
two-night cruise for two with five-star dining included
aboard a Carnival or Royal Caribbean cruise line absolutely
free. Just for coming in this Friday or Saturday October
6th and 7th. Please feel free to call me back, my names Ken
and make an appointment to see me. You can reach me at area
code 863-588-4020. That number again is 863-588-4020.
Thanks so much, I look forward to speaking to you, my names
Ken and I look forward to seeing you on the showroom floor.
Have a great day.[CC]
The Plaintiff is represented by:
Ignacio J. Hiraldo, Esq.
IJH LAW
1200 Brickell Ave., Suite 1950
Miami, FL 33131
Telephone: (786) 496-4469
E-mail: ijhiraldo@ijhlaw.com
- and -
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard, Suite 1400
Ft. Lauderdale, FL 33301
Telephone: (954) 400-4713
E-mail: mhiraldo@hiraldolaw.com
- and -
Scott Edelsberg, Esq.
EDELSBERG LAW, PA
19495 Biscayne Blvd., #607
Aventura, FL 33180
Telephone: (305) 975-3320
E-mail: scott@edelsberglaw.com
- and -
Michael Eisenband, Esq.
EISENBAND LAW, P.A.
515 E. Las Olas Boulevard, Suite 120
Ft. Lauderdale, FL 33301
Telephone: (954) 533-4092
E-mail: MEisenband@Eisenbandlaw.com
- and -
Andrew J. Shamis, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Avenue, Suite 400
Miami, FL 33132
Telephone: (305) 479-2299
Facsimile: (786) 623-0915
E-mail: ashamis@shamisgentile.com
ROADRUNNER TRANS: Approval of Wisconsin Case Settlement Sought
--------------------------------------------------------------
Roadrunner Transportation Systems, Inc. said in its Form 10-Q
Report filed with the Securities and Exchange Commission on August
6, 2019, for the quarterly period ended June 30, 2019, that the
parties in the case entitled, In re Roadrunner Transportation
Systems, Inc. Securities Litigation (Case No. 17-cv-00144) have
submitted a Stipulation of Settlement to the Court for preliminary
approval.
In 2017, three putative class actions were filed in the United
States District Court for the Eastern District of Wisconsin against
the Company and its former officers, Mark A. DiBlasi and Peter R.
Armbruster.
On May 19, 2017, the Court consolidated the actions under the
caption In re Roadrunner Transportation Systems, Inc. Securities
Litigation (Case No. 17-cv-00144), and appointed Public Employees'
Retirement System as lead plaintiff.
On March 12, 2018, the lead plaintiff filed the Consolidated
Amended Complaint ("CAC") on behalf of a class of persons who
purchased the Company's common stock between March 14, 2013 and
January 30, 2017, inclusive.
The CAC alleges (i) the Company and Messrs. DiBlasi and Armbruster
violated Section 10(b) of the Exchange Act and Rule 10b-5, and (ii)
Messrs. DiBlasi and Armbruster, the Company's former Chairman Scott
Rued, HCI Equity Partners, L.L.C., and HCI Equity Management, L.P.
violated Section 20(a) of the Exchange Act, by making or causing to
be made materially false or misleading statements, or failing to
disclose material facts, regarding (a) the accuracy of the
Company's financial statements; (b) the Company's true earnings and
expenses; (c) the effectiveness of the Company's disclosure
controls and controls over financial reporting; (d) the true nature
and depth of financial risk associated with the Company's tractor
lease guaranty program; (e) the Company's leverage ratios and
compliance with its credit facilities; and (f) the value of the
goodwill the Company carried on its balance sheet.
The CAC seeks certification as a class action, compensatory
damages, and attorney's fees and costs.
On November 19, 2018, the parties entered into a binding term sheet
agreeing to settle the action for $20 million, $17.9 million of
which will be funded by the Company's D&O carriers ($4.8 million of
which is by way of a pass through of the D&O carriers' payment to
the Company in connection with the settlement of the Federal
Derivative Action initiated by Richard Flanagan.
The parties have submitted a Stipulation of Settlement to the Court
for preliminary approval.
No further updates were provided in the Company's SEC report.
Roadrunner Transportation Systems, Inc. provides asset-right
transportation and asset-light logistics services. The company
operates through three segments: Truckload & Express Services
(TES), Less-than-Truckload (LTL), and Ascent Global Logistics.
Roadrunner Transportation Systems, Inc. is headquartered in Downers
Grove, Illinois.
SANTANDER BANK: Third Circuit Appeal Filed in Aversano Suit
-----------------------------------------------------------
Plaintiff Paul Aversano filed an appeal from a Court ruling in his
lawsuit entitled Paul Aversano v. Santander Bank NA, Case No.
3-17-cv-12694, in the U.S. District Court for the District of New
Jersey.
As previously reported in the Class Action Reporter, the Plaintiff
filed this purported class action Complaint, which he later
amended. The Amended Complaint asserts: (1) violations of
Truth-in-Lending Act (TILA) (2) breach of contract; (3) common law
fraud; (4) fraudulent inducement; (5) violation of the New Jersey
Consumer Fraud Act; and (6) unjust enrichment.
The appellate case is captioned as Paul Aversano v. Santander Bank
NA, Case No. 19-2868, in the United States Court of Appeals for the
Third Circuit.[BN]
Plaintiff-Appellant PAUL AVERSANO, on behalf of himself and all
others similarly situated, is represented by:
Sofia Balile, Esq.
LEMBERG LAW
43 Danbury Road, 3rd Floor
Wilton, CT 06897
Telephone: (917) 981-6237
E-mail: sofia.balile@gmail.com
Defendant-Appellee SANTANDER BANK NA is represented by:
Diane A. Bettino, Esq.
REED SMITH, LLP
136 Main Street
Princeton Forrestal Village, Suite 250
Princeton, NJ 08540
Telephone: (609) 520-6393
E-mail: dbettino@reedsmith.com
- and -
Henry F. Reichner, Esq.
REED SMITH, LLP
1717 Arch Street
Three Logan Square, Suite 3100
Philadelphia, PA 19103
Telephone: (215) 851-8266
E-mail: hreichner@reedsmith.com
- and -
Siobhan A. Nolan, Esq.
RIKER DANZIG SCHERER HYLAND & PERRETTI LLP
744 Broad Street
Newark, NJ 07102
Telephone: (973) 451-8345
E-mail: snolan@riker.com
SCWORX CORP: Faces $135,000 Indemnification Suit by Network One
---------------------------------------------------------------
SCWorx Corp. (formerly Alliance MMA, Inc.) said in its Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 30, 2019, that it does not believe it
owes the amount demanded by Network 1 Financial Securities Inc.
("Network One") over alleged indemnification breaches related to a
resolved class action suit.
On March 29, 2019, Network 1 Financial Securities Inc. ("Network
One") served a complaint against Alliance. Network One alleges
that Alliance breached its obligation under its agreements with
Alliance to indemnify Network One for certain costs that Network
One incurred in connection with the defense and settlement of the
class action litigation previously instituted against Alliance and
Network One.
This class action litigation has since been resolved, as previously
disclosed in the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 2019, filed with the U.S. Securities
and Exchange Commission on April 1, 2019.
Network One has demanded approximately US$135,000 in payment of
alleged damages.
The Company does not believe that it owes the amount demanded and
intends to vigorously defend against these claims.
SCWorx Corp. provides software solutions for the management of
health care providers' foundational business applications. The
company is based in New York, New York.
SDS STAFFING: Martin Sues Over Unpaid Overtime Wages
----------------------------------------------------
TINA MARTIN, individually and on behalf of all others similarly
situated, Plaintiff FLSA Collective Action v. SDS STAFFING, LLC,
Defendant, Case No. 7:19-cv-00198 (W.D. Tex., Aug. 20, 2019) is a
lawsuit brought to recover unpaid overtime wages and other damages
from SDS Staffing, LLC under the Fair Labor Standards Act
("FLSA").
Martin and the other workers like her were typically scheduled for
10-hour shifts, 7 days a week. But they often worked even more than
that, sometimes as many as 85 hours in a single workweek, and they
were not paid overtime for hours worked in excess of 40 hours in a
single workweek. Instead of paying overtime as required by the
FLSA, SDS paid these workers a single day rate for all hours worked
and improperly classified them as independent contractors. This
collective action seeks to recover the unpaid overtime wages and
other damages owed to these workers under the FLSA, says the
complaint.
Plaintiff Martin worked for SDS as a construction supervisor from
on or around September 21, 2018, until on or around May 10, 2019.
SDS provides staffing services to the oil and gas industry.[BN]
The Plaintiff is represented by:
Matthew S. Parmet, Esq.
PARMET PC
PO Box 540907
800 Sawyer St. (77007)
Houston, TX 77254
Phone: 713 999 5228
Fax: 713 999 1187
Email: matt@parmet.law
- and -
Edmond S. Moreland, Jr., Esq.
MORELAND VERRETT, P.C.
700 West Summit Dr.
Wimberley, TX 78676
Phone: 512 782 0567
Fax: 512 782 0605
Email: edmond@morelandlaw.com
SELECT PORTFOLIO: Bid to Remand Alper Suit to State Court Denied
----------------------------------------------------------------
In the case, ALLEN ALPER and DONNA HERNANDEZ, on behalf of
themselves and all others similarly situated, Plaintiffs, v. SELECT
PORTFOLIO SERVICING, INC., Defendant, Case No. 19-cv-10436-DJC (D.
Mass.), Judge Denise J. Casper of the U.S. District Court for the
District of Massachusetts denied (i) the Plaintiffs' motion to
remand the matter to state court, and (ii) SPS' motion for partial
dismissal as to Plaintiff Alper.
Alper and Hernandez have filed the putative class action lawsuit
against the Defendant alleging violations of Mass. Gen. L. c. 93A,
Section 2 and 940 C.M.R. Section 7.04. D. 9.
Alper incurred debt in the form of a home mortgage loan at some
point during or prior to 2017. In 2017, SPS began calling Alper's
cellular telephone in an attempt to collect Alper's debt. Alper's
debt was more than 30 days past due at that time. Throughout 2017
and the beginning of 2018, on average, SPS called Alper eight times
over a 70-day period to try to collect his debt. Alper found the
calls to be an invasion of his privacy and caused him to suffer
anger, anxiety, emotional distress, fear, frustration and
embarrassment. He wasted time and energy tending to SPS' calls.
Hernandez incurred debt in the form of a home mortgage loan, either
during or prior to 2015. Throughout 2015, SPS called Hernandez's
residential telephone in an attempt to collect her debt. At the
time of the calls, Hernandez's debt was more than 30 days past due.
SPS called Hernandez more than twice within a 70-day period. The
calls continued despite Hernandez's request to SPS that they cease
calling her. Hernandez, like Alper, found the calls to be an
invasion of her privacy and caused her to suffer anger, anxiety,
emotional distress, fear, frustration and embarrassment. She
wasted time and energy tending to SPS' calls.
The Plaintiffs seek to certify the class of all consumers residing
in the Commonwealth of Massachusetts who, within four years prior
to the filing of the action, received in excess of two telephone
calls regarding a debt from SPS within a 70-day period to their
residence, cellular telephone, or other provided telephone number.
The Plaintiffs allege that there are thousands of Massachusetts
consumers who are members of the proposed class. In the original
state court complaint, the Plaintiffs listed their damages as
$750,000.
The Plaintiffs instituted the action in Essex Superior Court on
Jan. 18, 2019, and SPS then removed the matter to the Court
pursuant to the Class Action Fairness Act. The Plaintiffs have now
moved for remand to state court, and SPS has moved for a partial
dismissal of the Plaintiffs' amended complaint. The Court heard
the parties on the pending motions on June 3, 2019 and took the
matters under advisement.
Judge Casper finds that because the named Plaintiffs purport to
represent a class, their alleged damages provide an appropriate
basis on which to calculate the damages of a typical class member.
Accordingly, to ascertain the amount in controversy, a court may
simply multiply (1) the putative class size by (2) a class member's
typical damages.
The Plaintiffs have not specified whether they seek a per-week
award or a per-violation award, but either way the alleged damages
have a reasonable probability of exceeding five million dollars.
Multiplying the lesser, weekly damages by the conservative estimate
of 7,865 potential class members yields $10,224,500, while the
per-violation damages times the same number of class members would
yield $61,347,000 -- both of which exceed the $5 million required
under CAFA. Notably, the totals exceed $5 million even without
considering the double or treble damages available under Chapter
93A. The Judge, therefore, denied the Plaintiffs' motion to remand
and proceeds to consideration of SPS' motion to dismiss.
SPS argues that the Plaintiffs' amended complaint should be
dismissed with respect to Alper because it does not allege specific
instances of misconduct by SPS against Alper. In support of its
motion, SPS highlights the amended complaint's failure to specify
the nature of the calls allegedly made to Alper or any specific
70-day period during which Alper allegedly received more than two
debt collection calls.
The Judge concludes that Alper's allegations are sufficient to
survive the motion to dismiss, although they are moresparse than
those alleged by Hernandez. The Supreme Judicial Court has
reversed summary judgment in Armata v. Target Corp., for a debt
collector under 940 C.M.R. Section 7.04(1)(f) where it was
undisputed that 1) the defendant was a debtor and plaintiff was a
debtor, and 2) the defendant telephoned plaintiff more than twice
in a 70-day period, in an effort to collect a debt." The
Plaintiffs have alleged those essential elements as to Alper.
Furthermore, the allegations are specific enough to enable SPS to
evaluate Alper's claims, given that SPS is in possession of the
records documenting its calls to Alper, and plausibly state a
claim. The Judge, therefore, denied SPS' motion to dismiss Alper's
claims.
A full-text copy of the Court's July 19, 2019 Memorandum and Order
is available at https://is.gd/zGPgxZ from Leagle.com.
Allen Alper, on behalf of himself and all others similarly situated
& Donna Hernandez, Plaintiffs, represented by Sergei Lemberg,
Lemberg Law, L.L.C.
Select Portfolio Servicing, Inc., Defendant, represented by David
S. Kantrowitz -- dkantrowitz@goodwinprocter.com -- Goodwin Procter,
LLP & Thomas M. Hefferon -- thefferon@goodwinprocter.com -- Goodwin
Procter LLP.
SELLAS LIFE: Bid to Dismiss Abstral(R) Related Suit Remains Pending
-------------------------------------------------------------------
SELLAS Life Sciences Group, Inc. is still awaiting the court's
ruling on its motion to dismiss the amended complaint in the
Abstral(R)-related suit, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 30, 2019.
On February 13, 2017, multiple putative shareholder securities
class action complaints were filed in federal court alleging, among
other things, that the Company and certain of the Company's former
officers and directors failed to disclose that Galena's promotional
practices for Abstral(R) (fentanyl sublingual tablets) were
allegedly improper and that Galena may be subject to civil and
criminal liability, and that these alleged failures rendered
Galena's statements about its business misleading.
The individual actions were consolidated, lead plaintiffs were
named by the federal court and a consolidated complaint was filed.
The Company filed a motion to dismiss the consolidated complaint.
On August 21, 2018, the Company's motion to dismiss the
consolidated complaint was granted without prejudice to file an
amended complaint.
On September 20, 2018, the plaintiffs filed an amended complaint.
The Company's motion to dismiss the amended complaint is currently
pending in the U.S. District Court for the District of New Jersey.
SELLAS Life Sciences Group, Inc., a clinical-stage
biopharmaceutical company, focuses on the development of novel
cancer immunotherapies for various cancer indications. SELLAS
Life Sciences Group, Inc. is headquartered in New York, New York.
SHANGHAI ORIGINAL: Found Liable for FLSA, NYLL Violations in Jin
----------------------------------------------------------------
In the case, Jianmin Jin and Chunyou Xie, Plaintiffs, v. Shanghai
Original, Inc. et al., Defendants, Case No. 16-cv-5633 (ARR) (JO)
(E.D. N.Y.), Judge Allyne R. Ross of the U.S. District Court for
the Eastern District of New York held that Jin is entitled to
relief because the restaurant is liable for Fair Labor Standards
Act ("FLSA"), and the New York Labor Law ("NYLL") violations.
The case is an action by Jin against Joe's Shanghai restaurant in
Flushing, Queens, for unpaid wages pursuant to the FLSA, and the
NYLL. The Plaintiff was employed as a kitchen worker at the
Flushing restaurant from Sept. 10, 2014, until May 2, 2015.
During Jin's employment, Fong managed the dining room, Shi managed
the kitchen, and Lam "was considered the general manager." Lam and
Fong were responsible for setting the employment policies. All
employees were required to clock in at the beginning of the day and
clock out at the end of the day. According to Fong, it was the
restaurant's practice to pay employees minimum wage for 40 hours of
work per week and overtime for all hours worked in excess of 40
hours. While Fong testified that the restaurant complied with all
wage and notice requirements under federal and state law during
Jin's employment, all relevant records were lost in November 2016.
On July 15, 2019, Judge Ross held a bench trial to determine the
restaurant's liability, if any. After careful consideration of the
evidence introduced at trial and the relevant law, she finds that
the restaurant is liable for FLSA and NYLL violations, and that Jin
is therefore entitled to relief.
The Judge finds that po prove their claims about failure to pay
overtime, the Plaintiffs must produce sufficient evidence to show
the amount and extent of the uncompensated work as a matter of just
and reasonable inference. The Second Circuit has established that
it is possible for a plaintiff to meet this burden through
estimates based on his own recollection. In the case, the
Defendants' records are undoubtedly inadequate, as the alleged wage
notices, wage statements, and timecards have all been lost, and she
finds that Jin has met his burden of demonstrating his actual hours
worked and pay received through his own credible recollection.
For the 16 weeks he worked in 2014, the Plaintiff was owed $332.06
per week in overtime ($17.25 x 19.25), and for the 17.3 weeks he
worked in 2015, the Plaintiff was owed $339.38 per week in overtime
($17.63 x 19.25). The Plaintiff is therefore owed overtime
compensation in the amount of $11,184.23 ($332.06 x 16 + $339.38 x
17.3).
Because Jin's regular rate of pay was above the minimum wage, he is
not entitled to spread-of-hours pay. And since Feb. 27, 2015, the
NYLL has also provided employees with $250 per day, up to a total
of $5,000, for violations of the paystub requirement. Since Jin
worked without a paystub for more than 20 days after Feb. 27, 2015,
he is entitled to the statutory maximum award of $5,000.
Next, the Judge finds that the Defendants have failed to
demonstrate that their failure to pay the Plaintiff in accordance
with the law was in good faith. In fact, based on the trial
testimony, she concludes that the Defendants were aware of the wage
requirements but simply failed to comply with them. Accordingly,
the Plaintiff is entitled to $11,184.23 in liquidated damages.
Finally, the NYLL, unlike the FLSA, permits the award of both
liquidated damages and prejudgment interest. Under New York law, a
prevailing employee is entitled to prejudgment interest at a rate
of 9% per year for a NYLL claim. While courts have discretion in
determining a reasonable date from which to award prejudgment
interest, a single reasonable intermediate date is the median date
between the earliest and latest each Plaintiffs' NYLL claim
accrued. Prejudgment interest will thus be calculated from the
median date between the Plaintiff's start and end date of
employment with the Defendants, which is Jan. 5, 2015. The
Plaintiff is also awarded post-judgment interest at the statutory
rate prescribed by 28 U.S.C. Section 1961.
Judge Ross concludes that Defendants East Brother, Lam, and Fong
are liable for violations of the FLSA and the NYLL. The Plaintiff
is entitled to the following relief: (1) $11,184.23 in unpaid
overtime compensation; (2) $11,184.23 in liquidated damages; (3)
$8,945 in statutory notice violations; and (4) pre- and
post-judgment interest. The Plaintiff is also entitled to a 15%
increase in the damages owed to him "if any amounts remain unpaid
upon the expiration of 90 days following issuance of judgment, or
90 days after expiration of the time to appeal and no appeal is
then pending, whichever is later. Under the FLSA and the NYLL, a
prevailing plaintiff is entitled to reasonable attorneys' fees and
costs. Accordingly, the Plaintiff is entitled to recover such fees
and costs. The Plaintiff's forthcoming motion is respectfully
referred to Magistrate Judge Orenstein.
A full-text copy of the Court's July 19, 2019 Opinion and Order is
available at https://is.gd/iVyk93 from Leagle.com.
Jianmin Jin, on behalf of themselves and others similarly situated
& Chunyou Xie, on behalf of themselves and others similarly
situated, Plaintiffs, represented by Aaron Schweitzer --
troylaw@troypllc.com -- Troy Law, PLLC, Kibum Byun, Troy Law, PLLC
& John Troy -- johntroy@troypllc.com -- Troy & Associates, PLLC.
Shanghai Original, Inc., doing business as Joe's Shanghai, East
Brother Corp, doing business as Joe's Shanghai, Shanghai City Corp,
doing business as Joe's Shanghai, Shanghai Duplicate Corp, doing
business as Joe's Shanghai, Kiu Sang Si, also known as Joseph Si,
Yiu Fai Fong & Tun Yee Lam, Defendants, represented by David B.
Horowitz, Fong & Wong, P.C., Fiona M. Dutta, Fong & Wong, P.C. &
Robert W. Wong, Fong & Wong, P.C..
SHUTTERFLY INC: Cheung Files Suit Over Apollo Merger Deal
---------------------------------------------------------
Andy Cheung, individually and on behalf of all others similarly
situated, plaintiff, v. Shutterfly, Inc., William J. Lansing,
Elizabeth Sartain, Brian Thomas Swette, Thomas D. Hughes, Eva
Manolis, Henry Tayloe Stansbury, Ann Mather, Elizabeth S. Rafael,
Ryan O'Hara and Michael P. Zeisser, Defendants, Case No.
19-cv-04540 (N.D. Cal., July 29, 2018), seeks to enjoin defendants
and all persons acting in concert with them from proceeding with,
consummating or closing the merger of Shutterfly and Apollo Global
Management, LLC, rescinding it in the event defendants consummate
the merger, rescissory damages, costs of this action, including
reasonable allowance for plaintiff's attorneys' and experts' fees
and such other and further relief under the Securities Exchange Act
of 1934.
Under the merger transaction, Shutterfly shareholders stand to
receive $51.00 in cash for each share of stock they own.
The complaint alleges that the merger's proxy statement failed to
provide the line items used to calculate EBITDA non-GAAP metric or
a reconciliation of this non-GAAP projection to its most comparable
GAAP measure.
Shutterfly is a retailer and manufacturing platform for
personalized products and communications while Apollo is a global
alternative investment manager.
[BN]
Plaintiff is represented by:
Joel E. Elkins, Esq.
WEISSLAW LLP
9107 Wilshire Blvd., Suite 450
Beverly Hills, CA 90210
Telephone: (310) 208-2800
Facsimile: (310) 209-2348.
Email: jelkins@weisslawllp.com
- and -
Richard A. Acocelli, Esq.
Kelly C. Keenan, Esq.
Kelly K. Moran, Esq.
WEISSLAW LLP
1500 Broadway, 16th Floor
New York, NY 10036
Tel: (212) 682-3025
- and -
Melissa A. Fortunato, Esq.
BRAGAR EAGEL & SQUIRE P.C.
885 Third Avenue, Suite 3040
New York, NY 10022
Telephone: (212) 308-5858
Facsimile: (212) 486-0462
Email: fortunato@bespc.com
SIGNATURE CONSULTANTS: T. Rotor Suit Remanded to Calif. State Court
-------------------------------------------------------------------
Judge Jon S. Tigar of the U.S. District Court for the Northern
District of California granted the Rotor's motion to remand the
case, TANYA ROTOR, on behalf of herself and all others similarly
situated, Plaintiff, v. SIGNATURE CONSULTANTS, LLC., A FLORIDA
LIMITED LIABILITY COMPANY, et al., Defendants, Case No.
18-cv-07526-JST (N.D. Cal.), to the Santa Clara County Superior
Court.
Rotor alleges that, at some unspecified point in time, she applied
for employment with Defendants Signature Consultants, and Signature
Commercial Solutions, LLC. As part of the application process,
Rotor had to complete a form authorizing a background check. The
form disclosed that Signature might request a consumer report on
Rotor and required her written authorization to do so.
On Oct. 12, 2018, Rotor filed a putative class action in state
court on behalf of Signature's current, former, and prospective job
applicants. She claims that Signature's disclosure form failed to
comply with federal Fair Credit Reporting Act ("FCRA") requirements
because the disclosure form (1) contained extraneous information
and a release, contrary to 15 U.S.C. Section 1681b(b)(2)(A); and
(2) did not include the requisite summary of consumer rights.
Rotor also brings state law claims under (3) the California
Investigative Consumer Reporting Agencies Act ("ICRAA"), (4) the
California Consumer Credit Reporting Agencies Act ("CCRAA"), and
(5) California's Unfair Competition Law ("UCL").
Rotor served Signature on Nov. 14, 2018. Signature timely removed
on Dec. 13, 2018, citing federal question jurisdiction over Rotor's
FCRA claims and supplemental jurisdiction over the state law
claims.
On May 29, 2019, Rotor filed a motion to remand the case pursuant
to 28 U.S.C. Section 1447(c), arguing that she lacks Article III
standing to pursue her FCRA claims.
Judge Tigar finds that (i) that Signature has not demonstrated that
Rotor has standing to pursue her improper disclosure FCRA claim;
(ii) Rotor lacks standing for the FCRA claim as well because the
Court has no basis to recognize an informational injury that is
actionable without additional concrete harm; (iii) without subject
matter jurisdiction over any federal claim, the Court has no
discretion to exercise supplemental jurisdiction over the state law
claims.
Judge Tigar granted Rotor's the motion to remand. Because the
parties did not raise the issue, he expresses no view as to how
Rotor's representations that she suffered no cognizable Article III
injury will impact her ability on remand to demonstrate that she
suffered injury in fact and lost money or property as a result of
that same conduct for purposes of her UCL claim. For the same
reason, the Judge does not opine on whether further developments in
the factual record in state court might support removal in the
future. The Judge remanded the action to the Santa Clara County
Superior Court.
A full-text copy of the Court's July 19, 2019 Order is available at
https://is.gd/oQd9il from Leagle.com.
Tanya Rotor, Plaintiff, represented by Chaim Shaun Setareh --
shaun@setarehlaw.com -- Setareh Law Group, Farrah Grant --
farrah@setarehlaw.com -- Setareh Law Group & Thomas Alistair Segal
-- thomas@setarehlaw.com -- Setareh Law Group.
Signature Consultants, LLC., a Florida Limited Liability Company &
Signature Commercial Solutions, LLC, A Florida Limited Liability
Company, Defendants, represented by David Van Pelt --
david.vanpelt@akerman.com -- Kelley Drye and Warren LLP, Kimberly
Chantal Carter -- kcarter@kelleydrye.com -- Kelleyr Drye & Warren
LLP, Michael L. Gallion -- michael.gallion@akerman.com -- Kelley
Drye and Warren LLP & Tahir Lynn Boykins -- tboykins@kelleydrye.com
-- Kelley Drye & Warren LLP.
SIMPLY WIRELESS: Carpenter Seeks Unpaid Overtime Wages
------------------------------------------------------
KYLE CARPENTER, on behalf of himself and all others similarly
situated, v. SIMPLY WIRELESS LLC, and ALFRED PELLECCHIA JR.,
Defendants, Case No. 19-2396 (Commonwealth of Mass., Aug. 15, 2019)
is a Class Action Complaint against Defendants seeking damages
based on the failure to pay wages.
Simply Wireless's company-wide compensation structure tor
salespeople were based on a 100% commission/draw model. Employees'
pay each week was based on a percentage of the goods sold by each
salesperson. To the extent an employee's pay for any given week
fell below a certain threshold, Simply Wireless would advance the
employee a "draw" on future commissions. Pursuant to this pay
policy, draws and commissions were ostensibly applied to hours
worked over 40 hours per week, and to hours worked on Sundays and
holidays.
Simply Wireless did not pay any additional compensation (or such
work beyond the draws and commissions. Plaintiff worked more than
40 hours in at least one week during the class period. Plaintiff
worked on at least one Sunday or covered holiday during the class
period but Simply Wireless did not base its pay to Plaintiff, or
members of the Class, the amount of overtime hours, or the amount
of hours worked on Sundays and holidays. Simply Wireless did not
pay Plaintiff, or members of the Class, overtime pay, says the
complaint.
Plaintiff worked as an account manager for Simply Wireless at its
store in the Burlington Mall from approximately January 2019
through April 2019.
Simply Wireless operates at least one retail store in the
Commonwealth specializing in cellular phones sales.[BN]
The Plaintiff is represented by:
Josh Gardner, Esq.
Nicholas J. Rosenberg, Esq.
GARDNER & ROSENBERG P.C
One State Street, Fourth Floor
Boston, MA 02109
Phone: 617-390-7570
Email: josh@gardnerrosenberg.com
SOLID BIOSCIENCES: Robert Lowinger Voluntarily Drops Claims
-----------------------------------------------------------
Robert Lowinger voluntarily dismissed his claims against Solid
Biosciences Inc. without prejudice on June 28, 2019, according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2019.
On March 28, 2018, Robert Lowinger, a purported stockholder of the
Company, filed a putative class action complaint alleging
violations of the federal securities laws, in the Business
Litigation Section of the Superior Court of the Commonwealth of
Massachusetts (Civil Action No. 1884-00984), against the Company,
Ilan Ganot, Jennifer Ziolkowski, the Company's directors and
certain of the underwriters in the Company's initial public
offering. The plaintiff in this suit claims to represent
purchasers of the Company's common stock in or traceable to the
Company's January 25, 2018 initial public offering and seeks
unspecified damages arising out of the alleged failure to disclose
risks associated with toxicity and potential for adverse events
related to the Company's lead product candidate.
On April 30, 2018, all defendants including the Company moved to
stay the proceedings in favor of the prior-filed federal court
securities class action. The plaintiff filed his opposition to
this motion on May 14, 2018, and defendants filed a reply in
support of their motion on May 24, 2018. After oral argument on
June 13, 2018, the court issued an order on June 22, 2018 allowing
the motion to stay and directing the parties to advise the court of
the status of the federal court action every six months.
On December 21, 2018, the parties filed a joint status report
informing the court of the voluntary dismissal of the federal
actions and of plaintiff's intent to move to vacate the stay.
Solid Biosciences Inc., a life science company, engages in
identifying and developing therapies for duchenne muscular
dystrophy (DMD) in the United States. Solid Biosciences Inc. was
founded in 2013 and is headquartered in Cambridge, Massachusetts.
SOUTHWEST AIRLINES: Bid to Change Venue in Huntsman Suit Denied
---------------------------------------------------------------
In the case, JAYSON HUNTSMAN, Plaintiff, v. SOUTHWEST AIRLINES CO.,
Defendant, Case No. 19-cv-00083-PJH (N.D. Cal.), Judge Phyllis J.
Hamilton of the U.S. District Court for the Northern District of
California denied Southwest's motion to change venue.
On Jan. 7, 2019, Huntsman, a pilot for Southwest, filed the
putative class action. The complaint states a single cause of
action under the Uniformed Services Employment and Reemployment
Rights Act ("USERRA"). The basis of the claim is that Southwest
failed to pay employees who took short-term military leave normal
wages or salaries during those periods, even though Southwest paid
employees their ordinary wages or salaries during
allegedly-comparable forms of leave such as jury duty, bereavement
leave, and sick leave. Huntsman alleges that this practice
violates USERRA Section 4316(b), which he argues requires employers
to provide employees who take military leave the same "rights and
benefits" that they provide to employees who take other comparable
forms of leave.
The putative class is defined to include all current and former
Southwest employees who, from Oct. 14, 2004 to the present, took a
leave of absence for 14 days or fewer to perform military service
and did not receive regular wages or salary while on leave.
Huntsman resides in Sacramento, California, and his primary
workplace, or "home" airport, is Oakland International Airport.
The "vast majority of Huntsman's flights originate" in Oakland.
Southwest operates and employs people throughout the country,
including at Oakland airport, and has its headquarters and
principal place of business in Dallas, Texas.
On April 10, 2019, Southwest filed its motion to change venue. The
motion to change venue came on for hearing before the Court on July
17, 2019.
Judge Hamilton concludes that the majority of the factors the Court
considers when determining whether to grant a motion to change
venue are neutral. Three favor transfer to some degree (the
convenience of the witnesses, the availability of compulsory
process to compel attendance of unwilling non-party witnesses and
the ease of access to sources of proof); and two others disfavor
transfer (the convenience of the witnesses and whether the courts
are overburdened in either district). Given that the merits of
transfer are either neutral or balanced, the Defendant has not met
its burden to make a strong showing of inconvenience, and denying
the motion best serves the interest of justice.
For the foregoing reasons, he denied Southwest's motion to change
venue. Southwest's evidentiary objections are denied as moot, as
the Court's analysis did not require consideration of the
objected-to submissions.
A full-text copy of the Court's July 19, 2019 Order is available at
https://is.gd/nWn5rn from Leagle.com.
Jayson Huntsman, on behalf of themselves and all other similarly
situated, Plaintiff, represented by Vincent Cheng --
vincent@blockesq.com -- Block & Leviton LLP, Matthew Zachary Crotty
-- matt@crottyandson.com -- Attorney at Law, pro hac vice, Peter
Romer-Friedman -- prf@outtengolden.com -- Outten and Golden LLP,
pro hac vice, R. Joseph Barton -- jbarton@blockesq.com
-- Block & Leviton LLP & Thomas G. Jarrard -- Tjarrard@att.net --
Attorney at Law, pro hac vice.
Southwest Airlines Co., Defendant, represented by Brian Davis Berry
-- brian.berry@ogletreedeakins.com -- Ogletree, Deakins, Nash,
Smoak & Stewart, P.C., Douglas J. Farmer --
doug.farmer@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart,
P.C. & Jason Phillip Brown -- jason.brown@ogletreedeakins.com --
Ogletree, Deakins, Nash, Smoak & Stewart, P.C..
SPRINT CORP: Meneses Class Suit Voluntarily Dismissed
-----------------------------------------------------
Sprint Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 8, 2019, for the
quarterly period ended June 30, 2019, that the class action Meneses
v. Sprint Corporation, et al. , has been voluntarily dismissed.
On April 22, 2019, a purported stockholder of the Company filed a
putative class action complaint in the Southern District of New
York against the Company and two of its executive officers,
captioned Meneses v. Sprint Corporation, et al.
On June 5, 2019, a second purported stockholder of the Company
filed a putative class action complaint in the Southern District of
New York against the Company and two of its executive officers,
captioned Soloman v. Sprint Corporation, et al.
The complaints in the Meneses and Solomon actions allege that the
Company and the two executive officers violated Sections 10(b) and
20(a) of the Exchange Act and Rule 10b-5 by issuing untrue
statements related to certain postpaid net subscriber additions.
The complaints seek damages and reasonable attorneys fees. The
Company believes the lawsuits are without merit.
On June 24, 2019, the Meneses action was voluntarily dismissed.
Sprint Corporation, including its consolidated subsidiaries, is a
communications company offering a comprehensive range of wireless
and wireline communications products and services that are designed
to meet the needs of individual consumers, businesses, government
subscribers, and resellers. The company is based in Overland Park,
Kansas.
SUBURBAN PROPANE: Continues to Defend NY & Pennsylvania Suits
-------------------------------------------------------------
Suburban Propane Partners, L.P. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 8, 2019, for
the quarterly period ended June 29, 2019, that the company
continues to defend itself from two class lawsuits, one in New York
and the other in Pennsylvania.
The Partnership's operations are subject to operating hazards and
risks normally incidental to handling, storing and delivering
combustible liquids such as propane.
The Partnership has been, and will continue to be, a defendant in
various legal proceedings and litigation as a result of these
operating hazards and risks, and as a result of other aspects of
its business.
In this regard, the Partnership's natural gas and electricity
business is currently a defendant in two putative class action
suits in the federal district courts of New York and Pennsylvania.
The complaints allege a number of claims under various consumer
statutes and common law in New York and Pennsylvania regarding
pricing offered to electricity customers in those states. The
complaint in the Pennsylvania action was dismissed in its entirety
by the district court, which dismissal is being appealed by the
plaintiff.
The complaint in the New York action was dismissed in part by the
district court, but causes of action based on the New York consumer
statute and breach of contract were allowed to proceed.
Based on the nature of the allegations under these suits, the
Partnership believes that the suits are without merit and is
defending each of these suits vigorously.
With respect to these pending suits, the Partnership has
determined, based on the allegations and discovery to date, that no
reserve for a loss contingency is required.
The Partnership is unable to reasonably estimate the possible loss
or range of loss, if any, arising from either of these two actions.
Suburban Propane said, "Although any litigation is inherently
uncertain, based on past experience, the information currently
available to the Partnership, and the amount of its accrued
insurance liabilities, the Partnership does not believe that
currently pending or threatened litigation matters, or known claims
or known contingent claims, will have a material adverse effect on
its results of operations, financial condition or cash flow."
No further updates were provided in the Company's SEC report.
Suburban Propane Partners, L.P., through its subsidiaries, engages
in the retail marketing and distribution of propane, fuel oil, and
refined fuels. The company operates in four segments: Propane, Fuel
Oil and Refined Fuels, Natural Gas and Electricity, and All Other.
Suburban Energy Services Group LLC serves as a general partner of
Suburban Propane Partners, L.P. The company was founded in 1945 and
is headquartered in Whippany, New Jersey.
SUBWAY DEVELOPMENT: Wilson & Mowan Seek OT for Field Consultants
----------------------------------------------------------------
GREG WILSON and TONYA MOWAN, Individually and on behalf of all
others similarly situated, the Plaintiff, vs. SUBWAY DEVELOPMENT,
INC. and SCOTT STRZELECKI, the Defendants, Case No.
4:19-cv-00587-BRW (E.D. Ark., Aug. 21, 2019), seeks declaratory
judgment, monetary damages, liquidated damages, interest and costs,
including a reasonable attorney's fee as a result of Defendants'
failure to pay Plaintiffs and other field consultants lawful
overtime compensation for hours worked in excess of forty 40 hours
per week under the Fair Labor Standards Act and the Arkansas
Minimum Wage Act.
The case is a hybrid class and collective action brought by the
Plaintiffs, each individually and on behalf of other field
consultants employed by Defendants at any time within a three-year
period preceding the filing of the complaint.
The Plaintiffs were paid a set salary rate regardless of the number
of hours they worked each week.[BN]
Attorneys for the Plaintiff are:
Chris Burks, Esq.
WH LAW,PLLC
Riverfront Pl. - Suite 7 45
North Little Rock, AR 72114
Telephone: (501) 891-6000
E-mail: chris@whlawoffices.com
SUNRUN INC: Settlement in Slovin TCPA Suit Has Final Approval
-------------------------------------------------------------
In the case, LYNN SLOVIN, an individual, on her own behalf and on
behalf of all others similarly situated, Plaintiff, v. SUNRUN,
INC., a California corporation, CLEAN ENERGY EXPERTS, LLC, a
California limited liability company doing business as SOLAR
AMERICA, and DOES 1-5, inclusive, Defendants, Case No.
4:15-cv-05340-YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of the
U.S. District Court for the Northern District of California has
issued an amended order granting final approval of the class action
settlement and judgment.
The Parties reached a settlement. They've submitted a detailed
written Stipulation and Agreement of Settlement together with
numerous exhibits and proposed orders. The Court gave its
preliminary approval of the Settlement on Jan. 29, 2019. It
directed the Parties to provide the Class Notice of the proposed
Settlement by Direct Mail Notice and Long Form Notice on the
Settlement Website and scheduled a further hearing to determine
whether the proposed Settlement is fair, reasonable, and adequate.
On July 9, 2019, the Court held a hearing to determine whether the
proposed Settlement Agreement executed by the Plaintiffs and the
Defendants should be approved by the Court. The counsel for the
Plaintiffs and the Settlement Class and the counsel for the
Defendants appeared at the hearing. No persons appeared to object
to the settlement.
After reviewing the pleadings and evidence filed in support of the
request for final approval of the Settlement and conducting the
hearing, Judge Rogers certified the following nationwide class for
settlement purposes only: Settlement Class means all persons in the
United States, from Nov. 20, 2011 to Aug. 31, 2018, who received
from or on behalf of Sunrun and/or CEE, or from a third party
generating leads for Sunrun and/or CEE: (1) one or more calls on
their cellphones, or (2) at least two telemarketing calls during
any 12-month period where their phone numbers appeared on a
National or State Do Not Call Registry or Sunrun's and/or CEE's
Internal Do Not Call List more than 30 days before the calls.
The Representative Plaintiffs, the Defendants, and their respective
counsel are ordered to implement and to consummate the Settlement
Agreement according to its terms and provisions.
All claims against Defendants asserted in the Action, are dismissed
on the merits and with prejudice, without fees or costs to any
party except as provided in the Settlement Agreement.
The Judge granted the Class Counsel's request for an Incentive
Award for the Representative Plaintiffs in the amount of $40,000 to
each of the four named Plaintiffs, Lynn Slovin, Samuel Katz,
Jeffery Price, and Justin Birkhofer, for a total of 160,000.
She has considered the Class Counsel's Motion for an Award of
Attorney's Fees and Costs and additionally granted as reasonable
and justified the Class Counsel's request for Attorney's Fees of
$1.9 million and out of pocket costs incurred of $470,610.87.
She further approved the establishment of the Settlement Fund as
set forth in the Settlement Agreement submitted by the Parties.
The Settlement Fund will constitute Sunrun/CEE's exclusive payment
obligation under the Settlement Agreement and will be used to pay:
(a) Cash Benefits paid to the Settlement Class Members, as
prescribed by the Settlement Agreement; (b) Attorneys' Fees and
Costs, as awarded by the Court; (c) any Incentive Award awarded to
Lynn Slovin, Samuel Katz, Jeffrey Price, and Justin Birkhofer; (d)
Settlement Administration Costs, including costs of notice
(including CAFA Notice); and (e) any cy pres payment to Electronic
Frontier Foundation pursuant to the procedures described in Section
7.4 of the Settlement Agreement. No portion of the Settlement Fund
will be returned to Sunrun/CEE, except as provided in Section 11 of
the Settlement Agreement, Termination of the Agreement.
Any distribution of the Settlement Fund to the Settlement Class or
any other person, other than the Settlement Administrator pursuant
to the terms in the Amended Order, will commence only after the
Effective Date. The Aggregate Fees, Costs, and Expenses will be
paid from the Settlement Fund prin the ior to any distribution of
Cash Benefits to the Settlement Class. The remainder of the
Settlement Fund will be used to pay Cash Benefits in accordance
with the rules set forth therein.
If any amounts remain in the Settlement Fund because Settlement
Members fail to negotiate their respective Benefit Checks, such
unclaimed monies will be distributed as follows: (a) to the
Settlement Class Members who cashed their initial Benefits Checks,
to the extent such a distribution is administratively and
economically feasible; and if not so feasible, (b) to Electronic
Frontier Foundation, the cy pres designated recipient as appointed
by the Court. No portion of the Settlement Fund will be returned
to Sunrun/CEE, except as provided in Section 11 of the Settlement
Agreement, Termination of the Agreement.
The further approved the establishment of the Settlement Fund as
set forth in the Agreement.
There being no just reason to delay, the Clerk is directed to enter
the Final Approval Order and Judgment forthwith.
A full-text copy of the Court's July 19, 2019 Order is available at
https://is.gd/NLwv66 from Leagle.com.
Lynn Slovin, an individual, on her own behalf and on behalf of all
others similarly situated, Plaintiff, represented by Yitzchak
Hillel Lieberman -- ylieberman@parasmoliebermanlaw.com --
ParasmoLiebermanLaw, Alan Himmelfarb -- consumerlaw1@earthlink.net
-- Law Offices of Alan Himmelfarb, David Christopher Parisi --
dcparisi@parisihavens.com -- Parisi & Havens LLP, Ethan Mark
Preston -- ep@eplaw.us -- Preston Law Offices, Grace E. Parasmo --
gparasmo@parasmoliebermanlaw.com -- Parasmo Lieberman Law, pro hac
vice, Suzanne Havens Beckman -- shavens@parisihavens.com -- Parisi
& Havens LLP & Suzanne L. Havens Beckman --
shavens@parisihavens.com -- Parisi & Havens LLP.
Samuel Katz, Jeffery Price & Justin Birkhofer, Plaintiffs,
represented by Alan Himmelfarb, Law Offices of Alan Himmelfarb,
Ethan Mark Preston, Preston Law Offices, Grace E. Parasmo, Parasmo
Lieberman Law, Suzanne L. Havens Beckman, Parisi & Havens LLP &
David Christopher Parisi, Parisi & Havens LLP.
Sunrun, Inc., a California corporation, Defendant, represented by
Dong Eun Lee -- clee@kelleydrye.com -- Kelley Drye and Warren LLP,
Edward James Mullins, III, Edward J. Mullins III, Esq. LLC, Lauri
Anne Mazzuchetti, Kelley Drye Warren LLP & Lee Scott Brenner,
Kelley Drye and Warren LLP.
Clean Energy Experts, LLC, a California limited liability company,
Defendant, represented by Catherine Dong Eun Lee, Kelley Drye and
Warren LLP, Glenn T. Graham, Kelley Drye Warren LLP, Jeffrey S.
Jacobson, KELLEY, DRYE & WARREN, LLP & Lauri Anne Mazzuchetti,
Kelley Drye Warren LLP.
Sean Bozarth, Movant, represented by Reuben D. Nathan --
rnathan@nathanlawpractice.com -- Nathan & Associates, APC.
SWITCH INC: Sept. 4 Rule 26(f) Conference in Cai Securities Suit
----------------------------------------------------------------
In the case, MINGBO CAI, Individually and On Behalf of All Others
Similarly Situated, Plaintiff, v. SWITCH, INC., ROB ROY, GABE
NACHT, ZAREH SARRAFIAN, DONALD SNYDER, TOM THOMAS, BRYAN WOLF,
GOLDMAN SACHS & CO. LLC, J.P. MORGAN SECURITIES LLC, BMO CAPITAL
MARKETS CORP., WELLS FARGO SECURITIES, LLC, CITIGROUP GLOBAL
MARKETS INC., CREDIT SUISSE SECURITIES, JEFFERIES LLC, BTIG, LLC,
RAYMOND JAMES & ASSOCIATES, INC., STIFEL, NICHOLAUS & COMPANY,
INC., and WILLIAM BLAIR & COMPANY, L.L.C., Defendants, Case No.
2:18-cv-01471-CM-VCF (D. Nev.), Magistrate Judge Cam Ferenbach of
the U.S. District Court for the District of Nevada will hold a
Federal Rule of Civil Procedure 26(f) conference on Sept. 4, 2019.
On June 11, 2018, Cai, individually and on behalf of all others
similarly situated, filed the initial complaint. On Aug. 6, 2018,
Judge Anne E. Thompson of the U.S. District Court for the District
of New Jersey entered an order directing that the action be
transferred to the Court.
On Sept. 6, 2018, the Court entered an order: (1) appointing Oscar
Farach as the Lead Plaintiff for the Class; and (2) approving the
Lead Plaintiff's selection of Glancy Prongay & Murry LLP as Lead
Counsel and Muehlbauer Law Office, Ltd. as the Liaison Counsel.
On Oct. 12, 2018, the Lead Plaintiff filed the Amended Class Action
Complaint for Violations of the Federal Securities Laws. On Nov.
19, 2018, the Defendants filed a motion to dismiss the Amended
Complaint and a motion to strike, which the Plaintiff opposed.
The Court granted in part and denied in part the Defendants' Motion
to Dismiss on July 12, 2019. Pursuant to Federal Rule of Civil
Procedure 12(a)(4), the Defendants' Answer(s) to the Amended
Complaint is currently due on July 26, 2019. The Amended Complaint
contains 123 paragraphs with allegations against numerous
Defendants.
The Parties to the action, in the interests of conservation of time
and resources and orderly management of the action, have agreed to
an extension for the Defendants to Answer the Amended Complaint,
and that the Parties will hold a Federal Rule of Civil Procedure
26(f) conference within seven days after the filing of the
Defendants' Answer(s). It is their first stipulation regarding the
Defendants' deadline to file an answer to the Amended Complaint.
The Parties hereby stipulated and Magistrate Judge Ferenbach
granted, that the Defendants' time to Answer the Amended Complaint
is extended from July 26, 2019 to Aug. 28, 2019 and that the
Parties will hold a Federal Rule of Civil Procedure 26(f)
conference on Sept. 4, 2019.
A full-text copy of the Court's July 24, 2019 Order is available at
https://is.gd/6HQhH7 from Leagle.com.
Mingbo Cai, Individually and On Behalf of All Others Similarly
Situated, Plaintiff, represented by Laurence M. Rosen --
lrosen@rosenlegal.com -- The Rosen Law Firm, P.A.
Oscar Farach, Lead Plaintiff, Plaintiff, represented by Casey
Sadler, Glancy Binkow & Goldberg LLP, pro hac vice, Lesley F.
Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP,
Lionel Z. Glancy -- lglancy@glancylaw.com -- Glancy Prongay &
Murray LLP, Robert V. Prongay -- rprongay@glancylaw.com -- Glancy
Prongay & Murray LLP & Andrew R. Muehlbauer, Muehlbauer Law
Office,
Ltd.
Kissimmee Utility Authority Employees' Retirement Plan, Movant,
represented by Brian O. O'Mara -- bomara@rgrdlaw.com -- Robbins
Geller Rudman & Dowd LLP.
Switch, Inc., Rob Roy, Zareh Sarrafian, Donald Snyder, Tom Thomas
&
Bryan Wolf, Defendants, represented by Andrew R. Gray --
andrew.gray@lw.com -- Latham & Watkins, pro hac vice, Joshua G.
Hamilton -- joshua.hamilton@lw.com -- Latham & Watkins LLP,
Michele
D. Johnson -- michele.johnson@lw.com -- Latham & Watkins, pro hac
vice, Ava M. Schaefer -- ams@pisanellibice.com -- Pisanelli Bice,
Kendall M. Howes -- kendall.howes@lw.com -- Latham & Wakins LLP,
pro hac vice & Todd L. Bice -- tlb@pisanellibice.com -- Pisanelli
Bice PLLC.
Gabe Nacht, Defendant, represented by Joshua G. Hamilton, Latham
&
Watkins LLP, Ava M. Schaefer, Pisanelli Bice, Kendall M. Howes,
Latham & Wakins LLP, pro hac vice & Todd L. Bice, Pisanelli Bice
PLLC.
Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, BMO Capital
Markets Corp., Wells Fargo Securities, LLC, Citigroup Global
Markets, Inc., Credit Suisse Securities (USA) LLC, Jefferies LLC,
BTIG, LLC, Raymond James & Associates, Inc., Stifel, Nicolaus &
Company, Inc. & William Blair & Company, L.L.C., Defendants,
represented by Mark E. Ferrario -- ferrariom@gtlaw.com --
Greenberg
Traurig & Christopher R. Miltenberger -- miltenbergerc@gtlaw.com
--
Greenberg Traurig, LLP.
SYSCO SACRAMENTO: Faces Calder Suit in California Superior Court
----------------------------------------------------------------
A class action lawsuit has been filed against Sysco Sacramento,
Inc. The case is captioned as Terrell Calder, On behalf of all
others similarly situated, the Plaintiff, vs. Does 1-50 and Sysco
Sacramento, Inc., a Delaware corporation, the Defendants, Case No.
34-2019-00262557-CU-OE-GDS (Cal. Super., Aug 9, 2019). The suit
alleges employment-related issues.
Sysco Sacramento provides food services. The company offers
seafood, poultry, beverages, groceries, gourmet foods, cleaning
supplies, small and heavy equipment, tabletop supplies, and medical
supplies.[BN]
Attorney for the Plaintiff is:
Isandra Yolanda Fernandez, Esq.
10045 SW 111th St.
Miami, FL 33176-3462
Telephone: (305) 439-7872
Facsimile: (305) 270-3203
TALLGRASS FREIGHT: Dobson Hits Misclassification, Claims Overtime
-----------------------------------------------------------------
Jocelyn Dobson, on her own behalf and on behalf of other similarly
situated persons, Plaintiff, v. Tallgrass Freight Co., LLC,
Defendant, Case No. 19-cv-02444 (D. Kan., August 2, 2018), seeks
unpaid overtime compensation and related penalties, costs and
attorneys' fees under the Fair Labor Standards Act.
Dobson worked for Tallgrass as an Account Assistant from March 2018
through April 2019 their in Basehor, Kansas location, managing
shipping solutions for its business clients. She claims to be
misclassified for compensation purposes, thus denied overtime pay.
[BN]
Plaintiff is represented by:
John J. Ziegelmeyer III, Esq.
HKM EMPLOYMENT ATTORNEYS LLP
1501 Westport Road
Kansas City, MO 64111
Tel: (816) 875-3332
Email: jziegelmeyer@hkm.com
Website: www.hkm.com
TENNESSEE: Settlement in Fraizer Prisoners Suit Has Final Approval
------------------------------------------------------------------
In the case, JOHN DOE, a minor, by and through his Mother and next
friend SHARIEKA FRAIZER, Plaintiffs, v. BONNIE HOMMRICH, et al.,
Defendants, Case No. 3:16-CV-0799 (M.D. Tenn.), Judge Eli J.
Richardson of the U.S. District Court for the Middle District of
Tennessee, Nashville Division, has entered Final Order Approving
Class Settlement, Ordering Permanent Injunctive Relief, and
Dismissing Case with Prejudice.
On March 27, 2019, the Plaintiffs John Doe, individually and on
behalf of the class as Class Representative and the counsel for Mr.
Doe and the class certified by the Court, Thomas H. Castelli, Mark
J. Downton and Wesley B. Clark, and the Defendants Bonnie Hommrich,
in her official capacity as the Commissioner of the Tennessee
Department of the Children's Services, the Tennessee Department of
the Children's Services, and, Rutherford County, Tennessee filed a
Corrected Second Agreed Motion to Approve Class Settlement.
Attached to the Motion to Approve is the executed Class Action
Settlement Agreement, which all the parties request the Court to
approve and based on which the parties seek the final order.
On March 28, 2019, the Court entered an Order Granting Preliminary
Approval of the Class Settlement, Directing Notice to the Class,
and Scheduling Fairness Hearing. Pursuant to the Preliminary
Approval Order, a Fairness Hearing was conducted on July 19, 2019.
The Final Order Approving Class Settlement, Ordering Permanent
Injunctive Relief, and Dismissing Case with Prejudice incorporates
the Class Settlement Agreement and its exhibits, and the
Preliminary Approval Order.
Based on the entire record before the Court, including the
Memorandum and Order entered on Feb. 17, 2017, the Class Settlement
Agreement, the Motion to Approve, the Preliminary Approval Order
the Fairness Hearing, and all other prior submissions and filings
in this proceeding, Judge Richardson confirmed that the certified
and final class in the matter is as follows: All juveniles detained
in the Rutherford County Juvenile Detention Center who are or were
placed in solitary confinement or isolation for punitive reasons,
from April 25, 2015 to the present.
Pursuant to FED. R. CIV. P. 23(e), the Judge approved in all
respects the parties' settlement as set forth in the Settlement
Agreement. Consistent with the terms of the Class Action
Settlement, the following permanent injunction, entered with regard
to only the defendant Rutherford County, is ordered: "Rutherford
County is permanently enjoined from using seclusion for punishment
as provided in the Rules of the Department of Children's Services,
Chapter 0250-04-08, Minimum Standards for Juvenile Detention
Centers and Temporary Holding Services, as may be amended or
revised by the State of Tennessee."
Based upon the entire record in the cause, including the statements
of the Class Counsel, the Judge finds that Release is appropriate
and adopted the Release as binding on the parties.
Based on the Class Settlement Agreement and the statements of the
counsel at the Fairness Hearing, a mediated resolution among the
parties has been reached with regard to the appropriate amount of
attorneys' fees and expenses to be awarded: the total amount of
fees and expenses payable to the Class Counsel is $250,000, with
County Defendants to pay $166,666.67 and the State Defendants to
pay $83,333.33. Pursuant to FED. R. CIV. P. 23(h), the Judge
approved this total fee and expense award.
Thereby, Rutherford County is hereby directed to pay its share of
the fee/expense award, $166,666.67, to the Class Counsel within 60
days of the entry of the Order. Further, the State Defendants are
directed to pay its share of the fee/expense award, $83,333.33, to
the Class Counsel within 60 days of the entry of the order.
The Class Counsel will allocate and distribute the award of fees
among themselves. In approving and making the award, the Judge
understand and ordered that the award of $250,000 for fees and
expenses fully compensates the Class Counsel for all work performed
to date and in the future relative to this Litigation, and that the
Class Counsel will not be entitled to, and the Plaintiffs waive any
claim for, additional attorneys' fees or expenses for any
additional work performed related to the litigation.
Upon entry of the Final Order, the matter will be dismissed with
prejudice and Final Judgment will be entered in the matter.
A full-text copy of the Court's July 19, 2019 Order is available at
https://is.gd/SWz7eg from Leagle.com.
John Doe, a minor, by and through his Mother and next friend, &
Sharieka Frazier, Plaintiffs, represented by Mark J. Downton --
mark@downtonclark.com -- Brazil Clark, PLLC, Thomas H. Castelli --
tcastelli@aclu-tn.org -- ACLU & Wesley B. Clark --
wesley@brazilclark.com -- Brazil Clark, PLLC.
Bonnie Hommrich, in her official capacity as the Commissioner of
the TN Dept of Children's Services & Children's Services,
Department of Tennessee, Defendants, represented by Alexander
Stuart Rieger, Tennessee Attorney General's Office & Jonathan P.
Lakey -- jlakey@walkcook.com -- Walk Cook & Lakey, PLC.
Rutherford County, Tennessee, Defendant, represented by Nicholas
Clinton Christiansen -- nchristiansen@mborolaw.com -- Cope, Hudson,
Reed & McCreary, PLLC.
TO-RISE LLC: $627K Settlement in Lora Suit Wins Prelim. Approval
----------------------------------------------------------------
The Hon. Sanket J. Bulsara preliminarily approves the settlement
contained in the Settlement Agreement and Release between the
parties in the lawsuit captioned EILEEK LORA, JEFFREY GOMEZ, SERGIO
MOSCOSO, BERNARDO MENDOZA, NICHOLAS MITRANO, KEVIN MANCO, and
WILMER MARIN GARCIA, on Behalf of Themselves and All Others
Similarly Situated v. TO-RISE, LLC and JORGE SALCEDO a/k/a JORGE E.
SALCEDO JR., Case No. 16-CV-3604 (SJB) (E.D.N.Y.).
The Plaintiffs filed this action on June 29, 2016, alleging that
they were not fully paid overtime in violation of the Fair Labor
Standards Act ("FLSA") and New York Labor Law ("NYLL"); that they
had not been paid for all hours they worked under 40 hours per
week; that Defendants routinely made illegal deductions from their
wages in violation of the NYLL; and that they did not receive
proper wage notices or wage statements under the NYLL.
The Settlement Agreement creates a Gross Settlement Fund of
$627,500.00 (the "Fund"). The Settlement Agreement covers the
awards of all Class Members who choose to participate and become
Authorized Claimants, the cost of settlement administration, any
Court-approved service payments, and any Court-approved attorney's
fees and expenses.
The Court certifies this classfor settlement purposes ("Settlement
Class"):
All individuals, including Opt-in Plaintiffs, employed by
To-Rise to perform work as Office Workers, Warehouse
Workers, Drivers, as defined below, and any other class of
employees employed by To-Rise, whether part-time, full-time
or as a temporary employee from June 29, 2010 through date
of full execution of the Agreement.
The Court appoints William Cafaro, Esq. of the Law Offices of
William Cafaro, as Class Counsel. The Court approves the Proposed
Notice of Class Action Settlement ("Proposed Notice") and directs
its distribution to the Class.
The Court adopts this timeline to govern the settlement process in
this case:
-- September 5, 2019 -- Defendants will provide the Settlement
Claims Administrator and Class Counsel with the Class List;
-- October 7, 2019 -- The Settlement Claims Administrator
shall mail to all Class Members, via First Class United
States Mail, the Court-approved Notices and Claim Forms;
-- January 7, 2020 -- Bar Date: Last day for Class Members to
qualify as Authorized Claimants by filing Claim Forms to
participate in the Settlement;
-- January 7, 2020 -- Last day for Class Members to "opt out"
of the settlement;
-- January 7, 2020 -- Last day for Class Members to submit
written objections to the Settlement;
-- January 17, 2020 -- Settlement Claims Administrator shall
provide to the Parties: (a) a list of all Authorized
Claimants; (b) a list of all Objectors; and (c) a list of
all Class Members who timely submitted an Opt-out
statement;
-- February 4, 2019 -- Late Claim Bar Date: Last Day for Class
Members to qualify as an Authorized Claimant possessing an
untimely claim due to extraordinary factors as provided for
in Section 2.3(E) of the Agreement;
-- February 5, 2019 -- Settlement Claims Administrator shall
provide to the Parties: (a) an updated list of all
Authorized Claimants; (b) an updated list of all Objectors;
and (c) an updated list of all Class Members who timely
submitted an Opt-out statement;
-- April 11, 2020 -- Last day for service of proposed papers
in support of final settlement approval to Defendants for
review and comment;
-- April 17, 2020 -- Last day for filing and service of papers
in support of final settlement approval with the Court;
-- May 1, 2020 at 10:00 A.M. -- Fairness hearing; and
-- After fairness hearing -- The Parties shall abide by the
terms of the Agreement, the Claims Administrator will
disburse settlement checks to the Class Members, fees,
costs and expenses to Class Counsel, Service Award payments
to Service Awardees, and the Claims Administrator's fee as
provided in the Settlement Agreement.[CC]
TRUMP ORGANIZATION: Judge Allows Putative Class Claims to Proceed
-----------------------------------------------------------------
Michael A. Keough, Esq., of Steptoe & Johnson LLP, in an article
for Lexology, reports that in a decision July 24, Judge Schofield
dismissed civil RICO claims against the Trump Organization and
Trump family members, while allowing the remaining putative class
claims to proceed. The case (see our previous coverage here)
alleged that Donald J. Trump, the Trump Organization, and members
of the Trump family falsely promoted the multi-level-marketing
scheme ACN, reaping millions of dollars in secret payments to
promote the scheme that led to would-be entrepreneurs losing
millions of dollars.
Judge Schofield dismissed the civil RICO claims in the suit, but
allowed related state law claims to survive under the Class Action
Fairness Act (CAFA). According to Judge Schofield, the plaintiffs
had failed to show that the defendants were the proximate cause of
their injuries, as required for their RICO claims:
[T}he Complaint seeks to certify a "Nationwide Damages Class" of
individuals who suffered net monetary losses from their association
with ACN . . . . The loss for purposes of analyzing causation is
therefore determined by reference to both amounts Plaintiffs paid
to ACN, and the revenues, if any, that Plaintiffs received through
it.
The Complaint fails to plead proximate causation because it does
not allege a direct relation between Defendants' conduct and
Plaintiffs' losses. Numerous intervening factors may account for
Plaintiffs' inability to recover their investments in ACN.
Plaintiffs' lack of success could be attributable to the inherent
challenges of multi-level marketing, Plaintiffs' capabilities as
salespeople and the extent of Plaintiffs' existing networks to whom
Plaintiffs could sell ACN products and recruit new IBOs. The losses
may also be attributable to the market for ACN products in the
Plaintiffs' localities and ACN's business practices — legitimate
or otherwise — separate from Defendants' role. These factors,
contributing in whole or part to Plaintiffs' losses, make the
question of Defendants' responsibility the sort of "intricate,
uncertain inquir[y]" that the proximate cause requirement is
intended to avert.
The absence of a direct relation in this case can be illustrated by
the following hypothetical. Suppose that two class members each
paid $1,000 to ACN in registration fees and expenses, induced to
invest by Defendants' endorsements. The class members are identical
in all respects except for one -- Class Member A earned $700 in
revenue from participating in ACN, but Class Member B earned only
$200. As to each class member, what is the loss attributable to the
Defendants' conduct? As the loss is the extent to which Plaintiffs
did not recover their investments in ACN, conceivably Defendants
could be charged with having caused a $300 loss to Class Member A
and an $800 loss to Class Member B. Yet, if Plaintiffs' inability
to recover their investments is attributable to their own sales
capabilities or the extent of their existing networks, this would
unmoor the loss from the Defendants' conduct. The $500 difference
in Defendants' liability to Class Member A and Class Member B could
not be imputed to anything that Defendants did, contravening the
principle "that the compensable injury flowing from a RICO
violation necessarily is the harm caused by the predicate acts."
[GN]
TWOPRO ENERGY: Field Workers Denied Overtime Wages, Woods Says
--------------------------------------------------------------
JOSEPH WOODS, Individually and on Behalf of all Others Similarly
Situated, the Plaintiff, vs. TWOPRO ENERGY SERVICES, LLC, the
Defendant, Case No. 7:19-cv-00200 (N.D. Tex., Aug. 21, 2019), seeks
to recover overtime compensation and all other available remedies
under the Fair Labor Standards Act of 1938.
Mr. Woods previously worked as a field worker for TwoPro from June
of 2018 until he was let go in September of 2018. The Plaintiff was
then brought back to work for TwoPro in December of 2018 until he
quit in July of 2019. He typically worked over 40 hours per week,
often seven days a week.
The Defendant has a company-wide policy whereby it does not pay its
workers overtime if they perform tasks that are paid at different
rates. This resulted in Plaintiff and other workers for Defendant
being denied overtime for most of their overtime that they worked
each week.
As a field worker, the Plaintiff was tasked with performing
different tasks, each with a different rate of pay per task. For
example, Plaintiff’s tasks would regularly fall within these four
categories: Hotshotting, Field Time, Drive Time, and Shop Time.
TwoPro Energy Services, LLC provides services in the oil and gas
industry, including casing, torque, and thread rep services.[BN]
Attorneys for the Plaintiff are:
Josh Borsellino, Esq.
Morgan Scott, Esq.
BORSELLINO, P.C.
1020 Macon St., Ste. 15
Fort Worth, TX 76102
Telephone: 817 908 9861
Facsimile: 817 394 2412
E-maill: josh@dfwcounsel.com
morgan@oilfieldovertime.com
VEGAN WHOLESALE: Denied Workers Overtime, Minimum Wages, Says Suit
------------------------------------------------------------------
Maria Soledad Courrecoupe, on behalf of herself and on behalf of
other similarly situated employees of Defendants, Plaintiff, v.
Vegan Wholesale Foods Corp., Williamsburg Vegan Corp., Daniel
Carabano, Alexis Carabano and Steven Simicich, Defendants, Case No.
19-cv-04485 (E.D. N.Y., August 5, 2019), seeks to remedy violations
of the wage-and-hour provisions of the Fair Labor Standards Act and
New York labor law.
Defendants operate vegan restaurants in New York City where
Courrecoupe worked as a waitress but performed other duties such as
bartending, being a runner, bussing tables, answering telephones,
packing delivery orders and hosting. She claims to receive below
the minimum wage, denied overtime and spread of hours pay, had a
portion of her tips illegally withheld and was never given wage
statements during her employment. [BN]
Plaintiff is represented by:
David S. Halsband, Esq.
HALSBAND LAW OFFICES
Court Plaza South
21 Main Street, East Wing
Third Floor, Suite 304
Hackensack, NJ 07601
Tel: (201) 487-6249
Fax: (201) 487-3176
VERB TECHNOLOGY: Hartmann Class Action in California Underway
-------------------------------------------------------------
Verb Technology Company, Inc. is facing a purported class action
complaint, styled Scott C. Hartmann, Individually and on Behalf of
All Others Similarly Situated, Plaintiff, v. Verb Technology
Company, Inc., and Rory J. Cutaia, Defendant, Case Number
2:19-CV-05896, according to the Company's Form 10-Q filed with the
U.S. Securities and Exchange Commission on August 14, 2019, for the
quarterly period ended June 30, 2019.
The purported class action complaint was filed on July 9, 2019, in
the United States District Court, Central District of California.
As of the date of the Quarterly Report on Form 10-Q, plaintiff has
not served either defendant. The complaint purports to be a "class
action complaint for violations of the Federal Securities Laws."
The allegations relate to a January 3, 2018, announcement by the
Company of its agreement with Oracle America, Inc., and the
purchases of and sales of securities by the named plaintiff (and,
purportedly, all of the members of the yet to be established class
through and including approximately May 2, 2018). The Company and
Mr. Cutaia deny all allegations contained in the complaint and, if
and when served, intend to defend vigorously.
In an August 1, 2019 Order, Judge George H. Wu approved a
Stipulation for Extension of Time to File Response/Reply.
Defendants' answer is due September 9.
Verb Technology Company, Inc. provides cloud-based business
software products under the Tagg brand name. The company was
formerly known as nFusz, Inc. and changed its name to Verb
Technology Company, Inc. in February 2019. Verb Technology Company,
Inc. was founded in 2014 and is headquartered in Los Angeles,
California.
WALGREEN CO: Faces Suit over Improper Retirement Investments
------------------------------------------------------------
CHANDRA V. BROWN-DAVIS; YOLANDA BROWN; RONALD DINKEL; SIOBHAN E.
FANNIN; DAPHNE G. JACOB; KRISTIE KOLACNY; DIANNA J. MARTIN; SHERRI
NELSON; BECKY S. RAY; TIMOTHY M. RENAUD; LISA SMITH; and SUSAN
WEEKS, individually and on behalf of all others similarly situated,
Plaintiffs v. WALGREEN CO.; THE RETIREMENT PLAN COMMITTEE OF THE
WALGREEN PROFIT-SHARING RETIREMENT PLAN; THE RETIREMENT PLAN
COMMITTEE OF THE WALGREEN PROFIT-SHARING RETIREMENT TRUST; AND DOES
1-30, Defendants, Case No. 1:19-cv-05392 (N.D. Ill., Aug. 9, 2019)
is an action against the Defendants for breach of fiduciary duties
under the Employee Retirement Income Security Act.
According to the complaint, in the year 2013, the Defendants loaded
the Walgreen Profit-Sharing Retirement Plan with a suite of poorly
performing funds called the Northern Trust Focus Target Retirement
Trusts ("Funds"). The Defendants kept these Funds throughout the
Class Period despite their continued underperformance.
Despite a market teeming with better-performing alternatives, the
Defendants selected the Northern Trust Funds. When the Defendants
added the Funds to the Plan in 2013, the Funds already had a
history of poor performance. They had significantly underperformed
their benchmark indexes and comparable target date funds since
Northern Trust launched the Funds in 2010. The Northern Trust Funds
continued underperforming through the present. For nearly a decade,
these investment options performed worse than 70% to 90% of peer
funds.
The Defendants' imprudent decision to retain the Northern Trust
Funds has had a large, tangible impact on participants' retirement
accounts. Based on an analysis of data compiled by Morningstar,
Inc., the Plaintiffs project the Plan lost upwards of $300 million
in retirement savings since 2014 because of the Defendants'
decision to retain the Northern Trust Funds instead of removing
them.
Walgreen Company provides online medical products. The Company
sells prescription refills, health info, contact lenses, and other
products. Walgreen serves customers in the United States. [BN]
The Plaintiffs are represented by:
Mark E. Maddox, Esq
MADDOX HARGETT & CARUSO, P.C.
10150 Lantern Road, Suite 175
Fishers, IN 46037
Telephone: (317) 598-2040
E-mail: mmaddox@mhclaw.com
- and -
Charles Field, Esq.
SANFORD HEISLER SHARP, LLP
655 West Broadway, Suite 1700
San Diego, CA 92101
Telephone: (619) 577-4242
Facsimile: (619) 577-4250
E-mail: cfield@sanfordheisler.com
- and -
Paul Blankenstein, Esq.
SANFORD HEISLER SHARP, LLP
700 Pennsylvania Avenue SE, Suite 300
Washington, DC 20003
Telephone: (202) 499-5200
Facsimile: (202) 499-4199
E-mail: pblankenstein@sanfordheisler.com
- and -
David Tracey, Esq.
SANFORD HEISLER SHARP, LLP
1350 Avenue of the Americas, 31st Floor
New York, NY 10019
Telephone: (646) 402-5650
Facsimile: (646) 402-5651
E-mail: dtracey@sanfordheisler.com
- and -
Danielle Fuschetti, Esq.
SANFORD HEISLER SHARP, LLP
111 Sutter Street, Suite 975
San Francisco, CA 94104
DFuschetti@sanfordheisler.com
WILLIAMS INDUSTRIAL: Appeal in Budde Class Suit Remains Pending
---------------------------------------------------------------
The plaintiff's appeal in the class action suit styled, Budde v.
Global Power Equipment Group Inc., is still pending, according to
Williams Industrial Services Group Inc.'s Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended June 30, 2019.
A putative shareholder class action, captioned Budde v. Global
Power Equipment Group Inc., was filed in the U.S. District Court
for the Northern District of Texas naming the Company and certain
former officers as defendants. This action and another action were
filed on May 13, 2015 and June 23, 2015, respectively, and on July
29, 2015, the court consolidated the two actions and appointed a
lead plaintiff.
On May 1, 2017, the lead plaintiff filed a second consolidated
amended complaint that named the Company and three of its former
officers as defendants. It alleged violations of the federal
securities laws arising out of matters related to the Company's
restatement of certain financial periods and claims that the
defendants made material misrepresentations and omissions of
material fact in certain public disclosures during the putative
class period in violation of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and Rule 10b-5, as promulgated thereunder. The claims were filed
on behalf of a putative class of persons who acquired the Company's
stock between September 7, 2011 and May 6, 2015, and sought
monetary damages of "more than US$200 million" on behalf of the
putative class and an award of costs and expenses, including
attorneys' fees and experts' fees.
On June 26, 2017, the Company and the individual defendants filed a
motion to dismiss the complaint. After full briefing, on December
27, 2017, the court issued a memorandum opinion and order granting
the motion to dismiss and allowing the plaintiffs until January 15,
2018 to file an amended complaint. The court found that, with
respect to each of the defendants, plaintiffs failed to plead facts
supporting a strong inference of scienter, or the required intent
to deceive, manipulate or defraud, or act with severe
recklessness.
On January 15, 2018, the plaintiffs filed their third amended
complaint, and in response the Company filed a renewed motion to
dismiss. After full briefing and oral argument, on September 11,
2018, the court dismissed with prejudice the third amended
complaint. The court found that, even with plaintiffs' amended
allegations, plaintiffs failed to plead facts supporting a strong
inference of scienter.
Also on September 11, 2018, plaintiffs filed a notice of appeal to
the United States Court of Appeals for the Fifth Circuit.
Plaintiffs' appeal is briefed and currently pending before that
court.
The Company said, "Litigation is subject to many uncertainties, and
the outcome of this action is not predictable with assurance. At
this time, the Company is unable to predict the possible loss or
range of loss, if any, associated with the resolution of this
litigation, or any potential effect such may have on the Company or
its business or operations."
Williams Industrial Services Group Inc. provides general and
specialty construction, maintenance and modification, and plant
management support services to the nuclear, hydro and fossil power
generation, pulp and paper, refining, petrochemical, and other
process and manufacturing industries. The company was formerly
known as Global Power Equipment Group Inc. and changed its name to
Williams Industrial Services Group Inc. in June 2018. Williams
Industrial Services Group Inc. was founded in 1998 and is based in
Tucker, Georgia.
WILLIAMSON PR: Fischler Alleges Violation under ADA
---------------------------------------------------
Williamson PR, LLC is facing a class action lawsuit filed pursuant
to the Americans with Disabilities Act. The case is styled as Brian
Fischler, individually and on behalf of all other persons similarly
situated, Plaintiff v. Williamson PR, LLC, Defendant, Case No.
1:19-cv-07861 (S.D. N.Y., Aug. 21, 2019).
Williamson PR is a multi-brand wholesale showroom and PR agency
that represents a full range of men's, women's, and accessories
brands.[BN]
The Plaintiff is represented by:
Christopher Howard Lowe, Esq.
Lipsky Lowe LLP
420 Lexington Avenue, Suite 1830
New York, NY 10170
Tel: (212) 764-7171
Email: chris@lipskylowe.com
YANGTZE RIVER: Bid to Dismiss Behrendsen Class Action Pending
-------------------------------------------------------------
Yangtze River Port and Logistics Limited said in its Form 10-Q
Report filed with the Securities and Exchange Commission on August
6, 2019, for the quarterly period ended June 30, 2019, that the
motion to dismiss the amended complaint in the class action suit
initiated by Michael Behrendsen, is pending.
On January 2, 2019 a class action complaint has been filed with the
United States District Court, Eastern District of New York on
behalf of Michael Behrendsen against the Company, Xiangyao Liu, Xin
Zheng and Tsz-Kit Chan (the "Complaint").
The two-count Complaint alleges violations of Section 10(b) of the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder, and Section 20(a) of the Exchange Act.
The Court recently entered an Order approving of lead counsel and
lead plaintiff.
On June 3, 2019, counsel for the lead plaintiff filed an Amended
Complaint, asserting the same two causes of action, albeit with
greater verbosity.
The Amended Complaint alleges the defendants made materially false
and/or misleading statements and/or failed to disclose that: (1)
the Company's purported lease of the Wuhan Yangtze River Newport
Logistics Center, the Company's main asset, was a fabrication; (2)
the Company's only operating subsidiary, Wuhan Newport, was
declared insolvent in China due to a number of default judgments
against it; and (3) as a result, the defendants' statements about
its business, operations, and prospects, were materially false and
misleading and/or lacked a reasonable basis at all relevant times.
The class action seeks to recover damages against the defendants'
actions.
On July 17, 2019, the Company filed a Motion to Dismiss the Amended
Complaint for failure to state a claim. That motion is still in the
midst of the briefing phase, and thus remains pending. Finally, as
of the date of this report, no class has yet to be certified.
Yangtze River "Management believes that the Company will prevail
this lawsuit, and any resolution will not have a material adverse
effect on the financial condition or results of operations of the
Company."
Yangtze River Port and Logistics Limited, formerly Yangtze River
Development Limited, incorporated on December 23, 2009, is a
holding company. The Company conducts its operations through its
subsidiary Energetic Mind Limited (Energetic Mind), which operates
through its subsidiary Ricofeliz Capital (HK) Ltd (Ricofeliz
Capital), which operates through its subsidiary Wuhan Yangtze River
Newport Logistics Co., Ltd (Wuhan Newport), an enterprise that
primarily engages in the business of real estate and
infrastructural development with a port logistics center located in
Wuhan, Hubei Province of China. The company is based in New York,
New York.
YOGAWORKS INC: Dec. 9 Hearing on Bid to Dismiss Federal Court Suit
------------------------------------------------------------------
YogaWorks, Inc. said in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2019, that hearing on the Defendants' motions to dismiss
the Inter-Local Pension Fund GCC/IBT class action suit is set for
December 9, 2019 at 1:30 p.m.
Four substantially similar putative class action complaints were
filed in the Superior Court of the State of California, County of
Los Angeles, captioned Salazar v. YogaWorks, Inc., et al. (filed
November 26, 2018); Johnson v. YogaWorks, Inc., et al. (filed
December 19, 2018); Lowinger v. YogaWorks, Inc. et al. (filed
December 21, 2018); and Mirza v. YogaWorks, Inc., et al. (filed
January 17, 2019).
These four state court actions were consolidated into the Salazar
case by the Court on April 17, 2019 and assigned to Judge Maren
Nelson for all purposes. ("State Court Action").
Additionally, two putative class action complaints, substantially
similar to the state court securities actions, captioned Cohen v.
YogaWorks, Inc., et al. (filed December 27, 2018) and Dellinger v.
YogaWorks, Inc., et al. (filed February 8, 2019) were filed in the
United States District Court for the District of Central
California.
On March 21, 2019, the federal court actions were consolidated, and
Inter-Local Pension Fund GCC/IBT's were appointed as Lead Plaintiff
("Federal Court Action)". The State Court Action and Federal Court
Action were brought by purported stockholders of YogaWorks alleging
violations of the Securities Act of 1933 for alleged misstatements
and omissions in offering documents related to YogaWorks' IPO that
took place on August 11, 2017. The lawsuits name as defendants
YogaWorks, certain of its current and former officers and
directors, YogaWorks' majority shareholder, and certain
underwriters of YogaWorks' IPO.
On July 31, 2019, the Court conducted a case management conference
in the State Court Action in which it denied each of the
plaintiffs' dueling motions to appoint lead counsel, and ordered
that plaintiffs' counsels work together. The Court also ordered
plaintiffs to file a consolidated complaint on or before August 20,
2019, and that Defendants may file a motion to stay the case.
Pending further order of the court, Defendants do not need to file
a response to any complaint in the State Court Action.
In the Federal Court Action, Lead Plaintiff filed an Amended
Consolidated Complaint on May 21, 2019 and Defendants filed motions
to dismiss on July 23, 2019. Plaintiffs' opposition(s) to the
motion(s) to dismiss is due by September 24, 2019; Defendants'
reply/replies in support of their motion(s) to dismiss are due by
November 21, 2019; and the hearing on Defendants' motion(s) to
dismiss is set for December 9, 2019 at 1:30 p.m.
The Company said, "The outcomes of the legal proceedings are
inherently unpredictable, subject to significant uncertainties, and
could be material to YogaWorks' financial condition, results of
operations, and cash flows for a particular period. YogaWorks
intends to vigorously defend the claims asserted against it."
YogaWorks, Inc. operates yoga studios under the YogaWorks and Yoga
Tree brand names in the United States. It primarily provides yoga
classes, workshops, teacher training programs, and yoga-related
retail merchandise. The company was formerly known as YWX Holdings,
Inc. and changed its name to YogaWorks, Inc. in April 2017.
YogaWorks, Inc. was founded in 1987 and is headquartered in Culver
City, California.
ZOGENIX INC: Lake Class Action in California Ongoing
----------------------------------------------------
Zogenix, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 6, 2019, for the
quarterly period ended June 30, 2019, that the company continues to
defend a class action suit entitled, Lake v. Zogenix, Case No.
3:19-cv-01975-RS.
On April 12, 2019, a plaintiff stockholder filed a class action
lawsuit against the company and certain of its executive officers
alleging violations of Sections 10(b) and 20(a) of the Securities
Exchange Act in the United States District Court for the Northern
District of California captioned Lake v. Zogenix, Case No.
3:19-cv-01975-RS.
The plaintiff seeks to represent a class of investors who purchased
our stock between February 6, 2019 and April 8, 2019, and alleges
that certain statements made during this period regarding the
prospects for the company's New Drug Application for Fintepla were
false or misleading.
The plaintiff seeks damages, interest, costs, attorneys' fees, and
other unspecified equitable relief.
Zogenix said, "We and our executive officers believe the claims
alleged in the complaint are without merit and intend to vigorously
defend against them."
No further updates were provided in the Company's SEC report.
Zogenix, Inc., a pharmaceutical company, develops and
commercializes therapies for the treatment of transformative
central nervous system disorders in the United States. The company
was formerly known as SJ2 Therapeutics, Inc. and changed its name
to Zogenix, Inc. in August 2006. Zogenix, Inc. was founded in 2006
and is headquartered in Emeryville, California.
[*] Russian President Signs Class Action Law
--------------------------------------------
Yaroslav Moshennikov, Esq. -- yaroslav.moshennikov@dlapiper.com --
Veronika Demidova, Esq. -- veronika.demidova@dlapiper.com -- and
Danila Kelin, Esq., of DLA Piper, in an article for Mondaq, report
that on 18 July 2019, the President of Russia signed a law whereby
lawsuits can be filed to protect groups of people in civil disputes
(so-called "class action suits").
The main aim of the new law is to simplify and strengthen the
protection of the rights of citizens in the most common disputes in
such areas as:
-- consumer protection (actions against a seller regarding the
sale of defective or dangerous goods, actions against a tour
operator)
-- labour relations (actions against an employer regarding
unfair dismissal, actions for recovery of wages)
-- damages (for example, actions regarding transport (for
example, aircraft, train) accidents, pollution of the environment)
-- real estate, housing utility services and shared
participation construction (actions of participants in shared
construction against a developer, tenants' actions against a
property management company)
The new rules also provide for a number of additional guarantees to
protect the rights of citizens in whose interest a lawsuit is
brought.
A lawsuit will be considered under the new rules if all of the
following are present:
-- the same respondent
-- common or similar claims of persons comprising the group
-- similar factual circumstances
-- the same method of protecting violated rights
Information on a class action lawsuit will be published in the mass
media, and any interested person whose claims meet the
abovementioned criteria will be able to join the initiated
lawsuit.
The institution of civil class action is quite well developed in
the US and is successfully applied to protect large groups of
citizens in various types of disputes, including those against
major manufacturers and corporations. This significantly reduces
the cost and duration of legal proceedings, and reduces the number
of cases of the same type.
It was also possible to bring such suits in Russian arbitrazh
courts, but only for specific categories of claims such as
corporate disputes, disputes relating to operations of securities
intermediaries, etc. However now the list of categories of disputes
has been significantly expanded, and they can be also considered by
courts of general jurisdiction.
DLA Piper has organised an international group on class actions
consisting of lawyers of various specialisations, in order to
exchange experience and provide comprehensive support to clients
facing the problem of class action lawsuits, whether actually
brought or threatened to be brought. [GN]
[*] Supreme Court Decided 5-10 Cases Started as Class Actions
-------------------------------------------------------------
Adam Feldman, writing for SCOTUSBlog, reports that Supreme Court
decisions tend to impact more than just the individuals named in a
lawsuit. Supreme Court Rule 10, the one official written
description of factors that may lead to a higher likelihood of a
cert grant, focuses primarily on areas with inconsistent court
decisions across the country. One of the rationales behind this
theory is to assure that a Supreme Court decision affects people
beyond the parties to the particular lawsuit in question. Another
secondary means for the court to assure that its decisions affect a
diverse population is by adjudicating cases starting as class
actions (and the rules governing them). Class actions, by
definition, involve more than just individual plaintiffs, and so
clarifying correct class-action procedures can have an exponential
outward effect. Although class actions are seldom discussed as a
distinct area of Supreme Court adjudication, the court grants cert
in multiple cases that started as class-action lawsuits each term.
Between the 2010 and 2018 terms, the court decided between five and
10 cases per term that started as class actions (these cases were
coded based on Supreme Court opinions describing the case origin as
a class action).
The types of class-action lawsuits that eventually are heard by the
Supreme Court arise in a multitude of subject areas ranging from
consumer actions to criminal, employment and securities cases
(Westlaw and the Supreme Court Database were both used to help
classify subject area.
There are predictable aspects to Supreme Court review in these
cases. Many class actions that the court reviews, for instance, are
heard by a narrow range of lower courts.
Since 2010, the U.S. Court of Appeals for the 9th Circuit heard
over four times as many of these cases before Supreme Court review
than any other appeals-court circuit. At the trial-court level, the
District Court for the Central District of California (part of the
9th Circuit) heard twice as many of these cases as the next most
prolific trial court, the District Court for the Northern District
of California (also part of the 9th Circuit). The next set of trial
courts with three class actions apiece includes another federal
district court from California -- the District Court for the
Southern District of California.
The Supreme Court overturns almost 70 percent of class action
decisions made by appeals courts by either reversing or vacating
these decisions.
The Supreme Court, for instance, reversed or vacated 22 class
actions decided by the 9th Circuit while only affirming five.
Although the court did not adjudicate nearly as many class actions
from any other appeals circuit, the court did overturn the majority
of class-action decisions heard by several other circuits as well.
The court, for example, only vacated or reversed decisions from the
U.S. Court of Appeals for the 6th Circuit and vacated the one class
action it decided after adjudication by the U.S. Court of Appeals
for the Federal Circuit.
Looking at the Supreme Court's decisions in these cases based upon
the lower court is only one way to slice these cases. Along with
the various subject areas of these class actions, we can also look
at the outcomes in these cases and the parties the court ruled for
in its decisions.
Although many of the outcomes across subject areas only garnered a
decision or two, some of the outcomes and differentials in outcomes
are more pronounced. The differentials are also often notable
within particular subject areas. For example, the court between the
2010 and 2018 terms favored the defendant companies in the vast
majority of consumer class actions. The court was much more
balanced in securities class actions between ruling for investors
and the corporate entities in question. One of the common outcomes
across the board was for the court to vacate the decision and
clarify the law for the appeals court. Many of these decisions did
not favor either party but left room for the court to rule on the
cases' merits based on such legal clarification. We see this
propensity to clarify the law most frequently in employment class
actions, but we also see in such cases that the court ruled in
favor of companies more often than in favor of employees.
The justices have taken different roles in deciding cases beginning
as class actions, with Justice Ruth Bader Ginsburg the clear
leader.
With 19 opinions (10 majority opinions and nine dissents), Ginsburg
authored four more opinions in total than Justice Stephen Breyer,
who came in second. Justice Anthony Kennedy had a high ratio of
majority to dissenting opinions, with eight majority opinions to
only one dissent. Chief Justice John Roberts had a slimmer ratio
than Kennedy, at four majority opinions to one dissent. Justice
Sonia Sotomayor was the only justice to write more dissents than
majority opinions in these cases, with four dissents to three
majority opinions.
The justices specialized in different types of resolutions for
these cases. When case resolutions were broken into five types --
clarifying class action procedures, ruling on jurisdiction,
justiciability (whether the Supreme Court should hear the case at
all), or deciding based on precedent or through statutory
interpretation -- the justices each had particular focuses.
Ginsburg was the leading justice for clarifying class-action
procedures, with four such decisions. A bevy of justices decided
one case apiece based on jurisdiction or justiciability factors.
Justice Antonin Scalia decided the most cases based on precedent,
while Justice Clarence Thomas was the leading justice deciding
cases through statutory interpretation (note that not every case
neatly fell into one of these categories).
Four justices in particular dominated decisions in certain areas of
law. The bulk of Thomas' decisions were in the employment
class-action arena, where he decided more cases than any of the
other justices. Similarly, Scalia decided the most consumer class
actions, with five. Ginsburg decided more securities class actions
than any other type, with four. Finally, Kennedy wrote majority
opinions in more criminal class actions than any other type and
more of this type than any other justice.
Kennedy was also a leader among justices covered in this dataset
for another reason. As with much of the Supreme Court's
jurisprudence over the last decade and a half, Kennedy authored the
majority opinion in more close class-action cases than any other
justice.
Scalia wrote for the court in more 5-4 and 5-3 cases than cases
decided by any other type of split vote, while Thomas wrote an
equal number of opinions for the court in 5-4 and unanimous cases.
The more liberal justices on the court all wrote opinions for the
court more often in unanimous cases than in cases with split
votes.
Certain attorneys, especially prominent repeat players before the
Supreme Court, most frequently argued these cases.
The most frequent oral advocates include David Frederick with nine
arguments, Tom Goldstein and Paul Clement with eight, and Neal
Katyal, Malcolm Stewart, and Carter Phillips with four each. These
attorneys specialized within this case set, as several argued
multiple cases within the same class-action subject areas.
Tom Goldstein and David Frederick argued the most cases in the
securities area, with five and four arguments respectively. David
Frederick also had two arguments in employment-related cases. One
other attorney, Paul Clement, had several arguments in multiple
subject areas: two each in consumer, employment and securities
cases.
With Kennedy now retired, the dimensions of these cases have
shifted. No longer will attorneys look to swing Kennedy's vote in
close cases, as they will instead have to look towards another
justice for decisive votes. Some of the attorneys who argued
several of these cases no longer argue before the Supreme Court as
frequently, while others still regularly argue multiple cases each
term. Certain trends in the types of cases the court has heard over
the last several terms may help indicate the types of class-action
disputes the court is likely to hear in upcoming terms. Areas like
employment arbitration, for example, might be high on the list, as
the court has heard several of these cases in each of the last two
terms. Other cases that started as class actions are already on the
slate for the court's 2019 term. Among these, Retirement Plans
Committee of IBM v. Jander will be argued during the court's
November sitting. Other such cases are already in the court's
pipeline. [GN]
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