/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190926.mbx C L A S S A C T I O N R E P O R T E R Thursday, September 26, 2019, Vol. 21, No. 193 Headlines 800 GINZA SUSHI: Workers Seek Unpaid Minimum, Overtime Wages ACTIVEHOURS INC: Faces Perks et al Suit in N.D. California AFSCME: Mattos et al. Sue over Collection of Agency Fees ANTHEM HEALTH: Court OKs Leave to Supplement Motion in Wilson ARTEX RISK: Shivkov Appeals D. Arizona Decision to Ninth Circuit BARNEY'S INC: Sheikh Seeks Unpaid Minimum and Overtime Wages BROADCOM INC: Bid to Dismiss Varjabedian Suit Ongoing BUDDHA ENTERTAINMENT: Zimmerman Suit Settlement Has Final Approval CACHET FINANCIAL: Simmons Sues Over Misappropriated Payroll Funds CADENCE BANCORPORATION: Miller Files Suit Over Share Price Drop CAPITAL ONE: Curtis et al. Sue over Information Data Breach CAPITAL ONE: Faces Zimprich Suit in Central District of California CARON BLACK: Wolf Files Class Suit Over Sale to VMWare CHARTER COMMUNICATIONS: Can Compel Arbitration in Olsen Suit CHIPOTLE MEXICAN: Pays $6.5MM to Settle Non-GMO Class Suit CJ MAHAN: Betzner Suit Remanded to Prairie County Circuit Court COLGATE-PALMOLIVE: Court Denies Certification in De Lacour Suit CONDUENT BUSINESS: Direct Express(R) Cards Not Safe, Says Carnley CONTEXTLOGIC INC: Choon Sues Over Ilegal Sale of Rubber Band Craft CORTIVA INSITUTE: Class Suit Over Loop Campus Closure Filed COVANTA HOLDING: Brown Sues BOD Over Unauthorized Payments COWORX STAFFING: Galvez Seeks Minimum & Overtime Wages CVS PHARMACY: Court Grants Stay in Ferguson DEARBORN PANTHEION: Underpays Exotic Dancers, Briggs Alleges EPDUSA INC: Garcia Hits Illegal Tip Pool, Seeks Overtime Pay FACEBOOK INC: Bid to Amend Consolidated Adkins Complaint Partly OKd FEDEX CORP: Continues to Defend Securities Class Suits in New York FIELDWORK CHICAGO: Has Made Unsolicited Calls, Dixie Alleges FINANCIAL MANAGEMENT: Haye Suit Moved to District of Maryland FIRST TECHNOLOGY: N.C. App. Affirms Counterclaims Dismissal FITNESS EQUIPMENT: Bechtel Sues over Mislabeled Treadmill Product FORD MOTOR: Appeals Court Orders Review of Class-Action Settlement FRANKLIN COLLECTION: Bailey Sues over Debt Collection Practices FREE FLY: Galitz Hits Illegal Telemarketing SMS Ads FREEDOM MORTGAGE: 4th Cir. Affirms UDTPA Dismissal FRIENDS HEALTH: Violates FLSA Overtime Provisions, Says Kim Suit GANNETT CO: Scarantino Challenges Sale to New Media GAP INC: Has $2.28MM Settlement of Class Suit Over Pricing GENERAL MOTORS: Uyenoyama Says Car Entertainment Hub Defective GENESCO INC: Settlement Reached in Chen & Salas Suit GLASS MOUNTAIN: Has Made Unsolicited Calls, Dolemba Suit Alleges GOLDEN 1: Faces Burgardt Suit in California Superior Court GREENLANE HOLDINGS: Bragar Eagel Files Class Action Lawsuit GREENLANE HOLDINGS: Brodsky & Smith Probes Securities Claims GREENLANE HOLDINGS: Rosen Law Files Class Action Lawsuit GREYSTAR REAL: Court Narrows Claims in J. Young Suit H. D. SMITH: Asks Court to Extend Time to Reply to Hestrup Suit HAYT HAYT: Class Action Over Fake Depositions Certified HC WAINWRIGHT: Final Judgment Entered in Prodanova Securities Suit HEADWAY TECH: Glover Sues Over HDD Suspension Assembly Price-fixing HEADWAY TECHNOLOGIES: Apex Computers Alleges HDD Price-Fixing HEALTHSPARK FOUNDATION: Harley Appeals Order to Pa. Super. Ct. HOMEJAB LLC: Chamely Hits Unsolicited SMS Ads IMPAX LAB: NY Pension Fund Appeals N.D. Cal. Ruling to 9th Cir. JUST ENERGY: Faces Brodeur Suit Over Securities Law Violations KAMKAD AUTOMOTIVE: Faces Harris Suit in Dallas State Court LOOMIS ARMORED: Class in Myers FLSA Suit Conditionally Certified LOUISIANA REGIONAL: Court Denies Bid to Remand Addison Suit LUMBER LIQUIDATORS: $4.75MM Settlement Reached in Kramer Suit MALLINCKRODT ARD: Plumbers Suit Moved to New Jersey Federal Court MAPLE & ASH: Food Tainted with Pathogens, Ashkar et al. Allege MDL 2641: Christensen v. CR Bard over IVC Filters Consolidated MDL 2641: Creech v. CR Bard over IVC Filters Consolidated MEREDITH CORP: Faces Securities Class Suit in New York and Iowa MID-SOUTH TRANSPORTATION: Boyland Seeks to Recover Unpaid OT Wages MIDLAND CREDIT: R&R on Dismissal/Arbitration Bid in Barbosa Adopted MINOS DINER: Boos Sues Over Underpaid Minimum and Overtime Wages MISSISSIPPI: Hosemann Appeals Hopkins Suit Ruling to 5th Cir. MONOTYPE IMAGING: Faces Smith Class Action over Marvel Merger MONSANTO CO: Glackin Sues Over Herbicide Side Effects MONSANTO COMPANY: Kubacki Sues over Sale of Herbicide Roundup NORWOOD SUBARU: Heckman Seeks Overtime Pay for Sales Staff NOVUS THERAPEUTICS: Jackie888 Class Suit Underway ORACLE CORP: Oral Argument in Calif. Class Suit Set for Oct. 17 OREGON: Court Sets Hours for Deposition Testimonies in ADA Suit PARADIS TO GO: Does not Properly Pay Workers, Ortega Suit Says PEAK RESORTS: Faces Wheby Class Suit Related to Vail Merger PIZZA HUT: $500K Settlement in Hobon FLSA Suit Has Prelim Approval PRIDE CHEVROLET: Goodwin Seeks Overtime Pay for Sales Staff Q CLUB: Back-Charging & Shared Costs Ruling in Dear Suit Affirmed RADIANT LOGISTICS: Dismissal of Barahona Class Suit Under Appeal RENSSELAER POLYTECHNIC: Court Dismisses Workers' Parking Cost Suit RESTAURANT MGT: McDonald's Franchisee Sued Over Sick Leave Law REXALL SUNDOWN: Nielsen's Protective Order Bid in Seegert Nixed RODENBURG LLP: 8th Cir. Affirms Dismissal of Carroll FDCA Suit SAFELITE FULFILLMENT: Court Stays M. Young Suit SANOFI SA: Hagens Berman Files Class Action Over Zantac Risks SANTANDER CONSUMER: Court Dismisses J. Price FLSA Suit SCANA CORP: Bid to Vacate Voluntary Dismissal of Warren Suit Nixed SIMMONS FIRST: Fails to Pay Overtime Wages Under FLSA, Clark Says SMARTPAY LEASING: Court Enters $11K Judgment in Esparza SOUTHERN COMPANY: Appeals Class Cert. Order in Securities Suit SPORTS RESEARCH: Protective Order in Capaci Suit Over Fraud Issued ST. ANN, MO: Court Refuses Dismissal of Q. Thomas Suit ST. CLOUD STATE UNIV: Seeks 8th Cir. Review of Ruling in Portz Suit STEVEN B. KATZ: Anderson Sues over Debt Collection Practices STORM WATER: Taplin Seeks to Recover Unpaid Wages and Damages STURM FOODS: Court Overrules $25MM Allocation Plan Objection TAILORED BRANDS: Continues to Defend Twin Hill Suit TEK-COLLECT INC: Berardi Sues over Debt Collection Practices TEXAS: Removal of 37 Cole Class Members from LeBlanc Unit Ordered TEXTRON INC: Zhang Investor Files Class Action Lawsuit TITAN LOGISTICS: Court Partly OKs Certification in G. Johnston Suit TOP SHELF PROVISIONS: Seeks 2nd Cir. Review of Order in Piccolo TRANS WORLD: Discovery in Consolidated Spack Suit Ongoing TRANS WORLD: New Suit over VIP Backstage Pass Memberships Ongoing UBER TECHNOLOGIES: $20M Deal in Calif. & Mass. Drivers Suit Okayed ULTA BEAUTY: Smith-Brown et al. Seek to Certify Class UNITED STATES: Navy Sued Over Aircraft Noise in Whidbey VENATOR MATERIALS: Kessler Topaz Files Class Action VIEWRAY INC: Robbins Geller Files Class Action Lawsuit VIRTUOSO SOURING: Court Dismisses FDCPA Claims in Gottesman Suit WELLNESS SOLUTIONS: Krawczyk et al Seek to Certify Class WILMA PENNINGTON-THURMAN: Sansone Suit Remanded to State Court ZUORA INC: MTA and Hagens Berman to Lead Securities Suit ********* 800 GINZA SUSHI: Workers Seek Unpaid Minimum, Overtime Wages ------------------------------------------------------------ Gelasio Espinobarros Galvez, Salvador Galvez Garcia, Eugenio Luna Reyes, Placido Galvez Narvaez, Vicente Galindo, and Alexander Hernandez Vicente, individually and on behalf of other similarly-situated employees, Plaintiffs, v. 800 GINZA SUSHI INC. d/b/a GINZA JAPANESE RESTAURANT, XIU LAN HUANG, and CHUN YONG CHEN, Defendants, Case No. 1:19-cv-08549 (S.D. N.Y., Sept. 13, 2018) is an action seeking monetary, declaratory and injunctive relief to redress violations of the Fair Labor Standards Act, the New York Labor Law, and supporting regulations. The complaint asserts that Defendants willfully engaged in violations of the FLSA and NYLL by: (a) failing to pay Plaintiffs and other similarly-situated employees wages at the minimum hourly rate required under federal and state law, (b) failing to pay Plaintiffs and other similarly-situated employees overtime compensation at one and one-half times their regular rate of pay for time worked in excess of 40 hours, (c) making unlawful deductions from Plaintiffs' wages and receiving a "kickback" because Plaintiffs were required to purchase and maintain bicycles and accessories, (d) failing to pay Plaintiffs and other similarly-situated employees "spread of hours pay" as required by N.Y. Comp. Codes R. & Regs, for each day of work which Plaintiffs and other similarly-situated employees' spread of hours exceeded ten, and (e) failing to provide wage notices and wage statements as required by NYLL. Plaintiffs were employed by Defendants at the Ginza Japanese Restaurant. 800 Ginza Sushi Inc. d/b/a Ginza Japanese Restaurant ("Ginza") is a restaurant located at 800 Lexington Avenue, New York, New York, 10065.[BN] The Plaintiffs are represented by: Hope Pordy, Esq. Elizabeth Sprotzer, Esq. SPIVAK LIPTON LLP 1700 Broadway, 21st Floor New York, NY 10019 Phone: (212) 765-2100 Fax: (212) 765-8954 Email: hpordy@spivaklipton.com esprotzer@spivaklipton.com ACTIVEHOURS INC: Faces Perks et al Suit in N.D. California ---------------------------------------------------------- Mary Perks and Stanley Alexander, individually, and on behalf of all others similarly situated, the Plaintiff, vs. Activehours, Inc., the Defendant, Case No. 5:19-cv-05543-NC (N.D. Cal., Sept. 3, 2019). The suit alleges fraud-related violation. The case is assigned to the Hon. Judge Nathanael M. Cousins. Activehours. Inc. designs and develops application software. The company offers a smartphone-based application that enables users to get paid for the hours worked when they need it.[BN] The Plaintiffs are represented by: Jeffrey Douglas Kaliel, Esq. KALIEL PLLC 1875 Connecticut Avenue NW, 10th Floor Washington, DC 20009 Telephone: (202) 350-4783 E-mail: jkaliel@kalielpllc.com AFSCME: Mattos et al. Sue over Collection of Agency Fees -------------------------------------------------------- Gary Mattos, Doris Beegle, Vickie Boggs, Bradley French, Carla Gurganus, Kimberly Griffith, Steven Hale, John Hill, Benjamin Ickes, Michelle Lambert, Jessica Merritt, John Meyers, Carole Miller, Melissa Potter, Jim Rieman, Laurie Rubin, Joyce Stoner, Russell Stott, and Larry Teets, on behalf of themselves and all those similarly situated, the Plaintiffs, vs. American Federation of State, County and Municipal Employees, AFL-CIO, Council 3, the Defendant, Case No. 1:19-cv-02539-GLR (D. Md., Sept. 3, 2019), asks the Court to compel the Defendant to return wrongfully seized agency fees. The lawsuit notes that the U.S. Supreme Court has held that unions violated the constitution when they deducted tens of millions of dollars from non-member public-sector employees. The Plaintiffs are non-member employees who had their constitutional rights violated when the Defendant deducted agency fees from them without their affirmative consent. AFSCME is a labor union representing public sector employees across Maryland, headquartered at 190 W Ostend St No. 101, Baltimore, MD 21230 in Baltimore City, Maryland.[BN] Attorneys for the Plaintiffs are: Reilly Stephens, Esq. Brian K. Kelsey, Esq. LIBERTY JUSTICE CENTER 190 South LaSalle Street, Suite 1500 Chicago, IL 60603 Telephone (312) 263-7668 Facsimile (312) 263-7702 E-mail: rstephens@libertyjusticecenter.org bkelsey@libertyjusticecenter.org - and - Aaron Solem, Esq. C/O NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION 8001 Braddock Rd., Suite 600 Springfield, VA 22160 Telephone (703) 321-8510 Facsimile (703) 321-9319 E-mail: abs@nrtw.org ANTHEM HEALTH: Court OKs Leave to Supplement Motion in Wilson ------------------------------------------------------------- The United States District Court for the Western District of Kentucky, Louisville Division, issued a Memorandum Opinion and Order granting Plaintiff leave to supplement the Motion for Preliminary Approval of Class Settlement, Approval of Notice to the Class, and Scheduling Final Fairness Hearing in the case captioned MARGARET WILSON, individually and on behalf of a Class of persons similarly situated, v. ANTHEM HEALTH PLANS OF Defendant KENTUCKY, INC., Defendant. Civil Action No. 3:14-cv-743. (W.D. Ky.). Plaintiff Margaret Wilson brings this action against Defendant Anthem Health Plans of Kentucky (Anthem) seeking relief for alleged violations of Employee Retirement Income Security Act of 1974 (ERISA) and the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). Whether the Settlement is Not Fair, Reasonable, and Adequate under Rule 23 (e)(2) The Court needs more information to determine whether the Settlement is fair, reasonable, and adequate and meets the because the requirements of Rule 23(e)(2)(C) and 23(e)(2)(D). Notice to the class members is thus not appropriate at this time. Under Rule 23(e)(2), a settlement is fair, reasonable, and adequate if: (A) the class representatives and class counsel have adequately represented the class (B) the proposal was negotiated at arm's length (C) the relief provided for the class is adequate, taking into account: (i) the costs, risks, and delay of trial and appeal (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class member claims (iii) the terms of any proposed award of attorney's fees, including timing of payment and(iv) any agreement required to be identified under Rule 23(e)(3) and(D) the proposal treats class members equitably relative to each other. Here, based on the parties' insufficient showing in the Motion, the Court cannot find, under 23(e)(2)(C), that the relief provided for the class is adequate. The Court cannot determine whether the $175,000 in the net settlement fund wholly or partially compensates the class because, it is unclear how much money members of the class spent on ABA treatment. Without this information, the Court cannot determine whether the net settlement fund is adequate. Given these issues, the Court will grant the Plaintiff leave to supplement this Motion with the requested information. For these reasons, and being otherwise sufficiently advised, the Court ORDERS that Plaintiff is granted leave to supplement the Motion for Preliminary Approval of Class Settlement, Approval of Notice to the Class, and Scheduling Final Fairness Hearing by no later than. The Motion for Preliminary Approval of Class Settlement, Approval of Notice to the Class, and Scheduling Final Fairness Hearing is ADMINISTRATIVELY REMANDED pending supplementation. A full-text copy of the District Court's September 3, 2019 Memorandum Opinion and Order is available at https://tinyurl.com/yyoyycvv from Leagle.com. Margaret Wilson, individually and on behalf of a Class of persons similarly situated, Plaintiff, represented by Robert R. Sparks - rrsparks@strausstroy.com - Strauss Troy Co., LPA. Anthem Health Plans of Kentucky, Inc., Defendant, represented by Darryl William Durham , Weber & Rose, PSC, 471 W Main St. 3400, Louisville, KY 40202, Martin J. Bishop , Reed Smith LLP, Rebecca R. Hanson - rhanson@reedsmith.com - Reed Smith LLP & Timothy R. Carwinski - tcarwinski@reedsmith.com - Reed Smith LLP. ARTEX RISK: Shivkov Appeals D. Arizona Decision to Ninth Circuit ---------------------------------------------------------------- Plaintiffs Dimitri Shivkov, et al., filed an appeal from a Court ruling entered in their lawsuit titled Dimitri Shivkov, et al. v. Artex Risk Solutions, Inc., et al., Case No. 2:18-cv-04514-SMM, in the U.S. District Court for the District of Arizona, Phoenix. As previously reported in the Class Action Reporter, the class action lawsuit seeks recovery of damages that the Plaintiffs and the Class sustained in connection with their participation in Captive Insurance Strategies that the Defendants designed, developed, promoted, sold, implemented, and managed, in violation of the Racketeer Influenced and Corrupt Organizations Act. According to the complaint, the Defendants prepared federal tax returns in connection with the Captive Insurance Strategies, and the Defendants and Other Participants advised the Plaintiffs and the Class to sign and file individual federal tax returns using and reporting the deductions generated by the Captive Insurance Strategies. Even after the Defendants and Other Participants learned that the IRS had begun to audit and disallow deductions claimed through similar tax strategies, the Defendants and other Participants continued to advise, promote, and encourage the Plaintiffs and the Class to use the Captive Insurance Strategies to offset income and/or capital gains on their income tax returns. The appellate case is captioned as Dimitri Shivkov, et al. v. Artex Risk Solutions, Inc., et al., Case No. 19-16746, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellants 5T Capital Fund II LLC, 5T Capital Holdings LLC, 5T Capital LLC, AZ Storage 1 LLC, AZ Storage 2 LLC, Affilion of Cobre Valley LLC, Affilion of Huntsville PLLC, Affilion of Texas PLLC, Nadim B. Bikhazi, Blake Welling MD PC, Kimberly Blaser, Blaser Management LLC, Blue Horizon Holdings LLC, Boomerang Sonoran LLC, Boomerang WB LLC, Borsight, Inc., Bourne Tempe Land LLC, Brian Tiffany MD PC, Bradley S. Bullard, Cathleen M. Bullard, Keith Butler, Rebecca M. Butler, Butler Medical Group, Inc., Cation LLC, DVS Holdings LLC, Devotion Homes LLC, Florida Citrus Holdings LLC, Katherine S. Frank, Ryan P. Frank, Glass House LLC, Ingenuity Auto Leasing LLC, Ingenuity Aviation LLC, Ingenuity Equity Group II LLC, Ingenuity Equity Group III LLC, Ingenuity Equity Group LLC, Ingenuity Leasing Company II LLC, Ingenuity Leasing Company LLC, Ingenuity Matrix, Inc., Ingenuity Professional Services PLLC, Kamaole Luxury Rentals LLC, Kannapali Beach Holdings LLC, Karen A. Kostluk-Bikhazi, John Linder, Nina Linder, Maui Luxury Rentals LLC, Cynthia McHale, Paul M. McHale, McHale Capital Management LLC, Brenda Mae Miller, Robert C. Miller, Ogden Clinic Professional Corporation, Our Retirement LLC, PS Bailey LLC, Keith E. Pereira, RV Storage LLC, Resiliant LLC, Bruce G. Robinson, Dimitri Shivkov, Silver Meadow Investing LLC, Spectra Services, Inc., Stone Haven Lodge LLC, Symphony Development Corporation, Symphony Homes LLC, T&G Investments LLC, TW Management LLC, Taylor-Wilke Holdings LLC, Brian R. Tiffany, Traditions Emergency Medicine PA, Treadstone Core3 LLC, Treadstone Equity Group LLC, Kristina Tsonev, UTA Holdings LLC, UTA Investments LLC, Utah Spine Care LLC, Sara Van Alstyne Robinson, Blake G. Welling, Stephanie G. Welling, Western States Medical LLC, Eric K. Wilke, Julie T. Wilke, Wilke Medical Direction PLLC and Vassil Zhivkov's opening brief is due on November 8, 2019; -- Appellees AmeRisk Consulting LLC, Artex Risk Solutions, Inc., Arthur J. Gallagher & Company, Julie A. Ekdom, Epsilon Actuarial Solutions LLC, Jeremy Huish, Karl Huish, Debbie Inman, Provincial Insurance PCC, TBS LLC, TSA Holdings LLC, Jim Tehero, Tribeca Strategic Accountants LLC and Tribeca Strategic Accountants PLC's answering brief is due on December 9, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants DIMITRI SHIVKOV, individually and as a trustee of the Phoenix 2010 Revocable Trust, et al., are represented by: Jim L. Flegle, Esq. LOEWINSOHN FLEGLE DEARY, LLP 12377 Merit Drive Dallas, TX 75251 Telephone: (214) 572-1701 Facsimile: (214) 572-1717 E-mail: jimf@lfdlaw.com - and - Garrett Webster Wotkyns, Esq. SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 8501 North Scottsdale Road, Suite 270 Scottsdale, AZ 85253 Telephone: (480) 428-0142 E-mail: gwotkyns@schneiderwallace.com Defendants-Appellees ARTEX RISK SOLUTIONS, INC.; ARTHUR J. GALLAGHER & COMPANY; and DEBBIE INMAN are represented by: Joseph G. Adams, Esq. Barbara Dawson, Esq. SNELL & WILMER L.L.P. One Arizona Center 400 East Van Buren Street Phoenix, AZ 85004-2202 Telephone: (602) 382-6000 E-mail: jgadams@swlaw.com bdawson@swlaw.com - and - Lawrence M. Hill, Esq. WINSTON & STRAWN LLP 200 Park Avenue New York, NY 10166 Telephone: (212) 294-4763 E-mail: lhill@winston.com Defendants-Appellees TSA HOLDINGS LLC, FKA Tribeca Strategic Advisors LLC; TBS LLC, DBA PRS Insurance; KARL HUISH; JEREMY HUISH; JIM TEHERO; PROVINCIAL INSURANCE PCC; and TRIBECA STRATEGIC ACCOUNTANTS LLC are represented by: Karl M. Tilleman, Esq. DENTONS US LLP 2398 E. Camelback Road, Suite 850 Phoenix, AZ 85016 Telephone: (602) 508-3900 E-mail: karl.tilleman@dentons.com Defendants-Appellees EPSILON ACTUARIAL SOLUTIONS LLC and JULIE A. EKDOM are represented by: James Steven Sparks, Esq. SANDERS & PARKS, P.C. 3030 North Third Street, Suite 1300 Phoenix, AZ 85012 Telephone: (602) 432-5600 E-mail: steve.sparks@sandersparks.com Defendant-Appellee AMERISK CONSULTING LLC is represented by: Paul S. Gerding, Jr., Esq. KUTAK ROCK LLP 8601 N Scottsdale Road Scottsdale, AZ 85253-2742 Telephone: (480) 429-4843 E-mail: paul.gerding.jr@kutakrock.com Defendant-Appellee TRIBECA STRATEGIC ACCOUNTANTS PLC is represented by: Victoria Lea Buchinger, Esq. DICKINSON WRIGHT PLLC 1850 North Central Avenue, Suite 1400 Phoenix, AZ 85004 Telephone: (602) 220-4542 E-mail: vbuchinger@dickinsonwright.com BARNEY'S INC: Sheikh Seeks Unpaid Minimum and Overtime Wages ------------------------------------------------------------ MUQUIT SHEIKH, individually and on behalf of others similarly situated, Plaintiff, v. BARNEY'S, INC.; and any other related entities, Defendants, Case No. 1:19-cv-08603 (S.D. N.Y., Sept. 16, 2019) is an action brought pursuant to the Fair Labor Standards Act, New York Labor Law, and 12 NYCRR Part 146 to recover unpaid minimum wages, unpaid overtime compensation, and unpaid tips and gratuities, owed to Plaintiff and other similarly situated persons who are presently or were formerly employed by Defendants. Beginning in approximately September 2013 and continuing through the present, the Defendants have engaged in a policy and practice of unlawfully compensating their food service employees for all hours worked at a wage rate lower than the applicable minimum wage rate; and for overtime hours worked at a wage rate lower than the applicable overtime wage rate, asserts the complaint. When the Plaintiff and other members of the putative class worked in excess of 40 hours in a given workweek, they received overtime at a rate typically equal to one and one-half times the applicable New York State "reduced tip credit rate," the complaint adds. The complaint says Defendants failed to distribute all monies collected as gratuities, or charges purported to be gratuities--including charges designated as for "service"--in full to the Plaintiff and other members of the putative class, including but not limited to monies collected in connection with the administration of banquet or catered events, and instead retained the proceeds from these charges for their own benefit. Relatedly, Defendants failed to maintain accurate records pertaining to both their collection of, and any alleged distribution of these gratuities, or charges purported to be gratuities. MUQUIT SHEIKH is an individual who currently resides in Queens County, New York, and has been employed as a food service worker--in particular, as a bartender--by Defendants. BARNEY'S, INC. is domestic business corporation organized and existing under the laws of the State of New York and is engaged in the Hospitality Industry.[BN] The Plaintiff is represented by: Brett R. Cohen, Esq. Jeffrey K. Brown, Esq. Michael A. Tompkins, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Phone: (516) 873-9550 BROADCOM INC: Bid to Dismiss Varjabedian Suit Ongoing ----------------------------------------------------- Broadcom Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on September 13, 2019, for the quarterly period ended August 3, 2019, that the U.S. District Court for the Central District of California has set a briefing schedule for defendants' motion to dismiss the remanded class action suit initiated by Gary Varjabedian. On April 8, 2015, a putative class action complaint was filed in the District Court, entitled Gary Varjabedian, et al. v. Emulex Corporation, et al., No. 8:15-cv-554-CJC-JCG. The complaint names as defendants Emulex Corporation ("Emulex"), its directors, AT Wireless and Emerald Merger Sub, and purported to assert claims under Sections 14(d), 14(e) and 20(a) of the Exchange Act. The complaint alleged, among other things, that the board of directors of Emulex failed to provide material information and/or omitted material information from the Solicitation/Recommendation Statement on Schedule 14D-9 filed with the Securities and Exchange Commission (SEC) on April 7, 2015 by Emulex, together with the exhibits and annexes thereto. The complaint sought to enjoin the tender offer to purchase all of the outstanding shares of Emulex common stock, as well as certain other equitable relief and attorneys' fees and costs. On July 28, 2015, the District Court issued an order appointing the lead plaintiff and approving lead counsel for the putative class. On September 9, 2015, plaintiff filed a first amended complaint seeking rescission of the merger, unspecified money damages, other equitable relief and attorneys' fees and costs. On October 13, 2015, defendants moved to dismiss the first amended complaint, which the District Court granted with prejudice on January 13, 2016. Plaintiff filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit (the "Ninth Circuit Court") on January 15, 2016. The appeal is captioned Gary Varjabedian, et al. v. Emulex Corporation, et al., No. 16-55088. On June 27, 2016, the Plaintiff-Appellant filed his opening brief, on August 17 and August 22, 2016, the Defendants-Appellees filed their answering briefs, and on October 5, 2016 Plaintiff-Appellant filed his reply brief. The Ninth Circuit Court heard oral arguments on October 5, 2017. On April 20, 2018, the Ninth Circuit Court issued an opinion affirming in part and reversing in part the decision of the U.S. Central District Court and remanding Plaintiff-Appellant's claims under Sections 14(e) and 20(a) of the Exchange Act to the U.S. Central District Court for reconsideration. On May 4, 2018, the Defendants-Appellees filed a Petition for Rehearing En Banc with the Ninth Circuit Court. On July 13, 2018, Plaintiff-Appellant filed an Opposition to the Petition for Rehearing En Banc. On September 6, 2018, the Ninth Circuit Court issued an order denying the Petition for Rehearing En Banc. On October 11, 2018, Defendants-Appellees filed a Petition for a Writ of Certiorari to the United States Supreme Court (the "U.S. Supreme Court"). On January 4, 2019, the U.S. Supreme Court granted certiorari. On April 23, 2019, the U.S. Supreme Court dismissed the writ of certiorari as having been improvidently granted. On May 28, 2019, the Ninth Circuit Court remanded the case back to the U.S. Central District Court. On August 6, 2019, the U.S. Central District Court issued an order setting the briefing schedule for defendants' motion to dismiss. Broadcom said, "We believe these claims are all without merit and intend to vigorously defend these actions." Broadcom Inc. designs, develops, and supplies a range of semiconductor devices with a focus on complex digital and mixed signal complementary metal oxide semiconductor based devices and analog III-V based products worldwide. The company operates through four segments: Wired Infrastructure, Wireless Communications, Enterprise Storage, and Industrial & Other. Broadcom Inc. is based in San Jose, California. BUDDHA ENTERTAINMENT: Zimmerman Suit Settlement Has Final Approval ------------------------------------------------------------------ In the case, JENNIFER ZIMMERMAN, on behalf of herself and all others similarly situated; Plaintiff, v. BUDDHA ENTERTAINMENT, LLC d/b/a and a/k/a TAO GROUP also d/b/a and a/k/a TAO NIGHTCLUB also d/b/a and a/k/a TAO LV NIGHTCLUB; ASIA LAS VEGAS, LLC d/b/a and a/k/a TAO GROUP also d/b/a and a/k/a TAO ASIAN BISTRO; STRIP VIEW ENTERTAINMENT LLC d/b/a and a/k/a TAO GROUP also d/b/a and a/k/a LAVO LAS VEGAS; DOES 1 through 50, inclusive, Defendants, Case No. 2:18-cv-01460-JAD-CWH (D. Nev.), Judge Jennifer A. Dorsey of the U.S. District Court for the District of Nevada granted the Motion for Final Order Approving Class Action Settlement and Judgment. The putative class action was before the Court on Aug. 9, 2019, for a hearing and the Court's Final Order and Judgment, consistent with the Court's Preliminary Approval Order, filed and entered April 22, 2019, and as set forth in the Joint Stipulation of Settlement and Release Between Plaintiff and Defendant in the Action. Due and adequate notice have been given to all the Class Members as required in the Preliminary Approval Order. Judge Dorsey has considered all papers filed and proceedings had therein. Consistent with the definitions provided in the Stipulation of Settlement, the term "Class Member" means those individuals that are within the Settlement Class which includes all persons who have previously been or currently are employed by one or more of the Defendants, in the State of Nevada, as an hourly-paid employee, and who were paid less than $8.25 per non-overtime hour worked and/or less than $12.38 per overtime hour worked, at any time during the Class Period. For purposes of the Settlement and the Court's Final Order and Judgment, the term "Class Period" means July 11, 2016 through the date the Court granted preliminary approval of the Settlement. The term "Released Claims" collectively means those claims to be released by the Settlement Class identified in Paragraph 21 of the Stipulation of Settlement. The term "Class Representative" will mean Plaintiff Jennifer Zimmerman. The term "Class Counsel" will mean "Mark Thierman, Esq., Joshua Buck, Esq, and Leah Jones, Esq. of Thierman Buck, LLP of Reno, Nevada, and Christian Gabroy, Esq. and Kaine Messer, Esq. of Gabroy Law Offices of Henderson, Nevada." The Judge approved the Settlement set forth in the Stipulation of Settlement and finds the Settlement is, in all respects, fair, adequate and reasonable, and directs the Parties to effectuate the Settlement according to its terms. She entered judgment in the Action, as of the date of entry of the Court's Final Order and Judgment, pursuant to the terms set forth in the Stipulation of Settlement. She namef Mark Thierman, Esq., Joshua Buck, Esq, and Leah Jones, Esq. of Thierman Buck, LLP and Christian Gabroy, Esq. and Kaine Messer, Esq. of Gabroy Law Offices as the Class Counsel. Pursuant to the terms of the Settlement, and the authorities, evidence and argument submitted by the Class Counsel, the Judge awarded the Class Counsel attorneys' fees in the amount of $166,666.67, and attorney costs in the amount of $5,000, to be deducted and paid from the Maximum Settlement Amount, as final payment for and complete satisfaction of any and all attorneys' fees and costs incurred by and/or owed to the Class Counsel and any other person or entity related to the Action. She further ordered that the award of attorneys' fees and costs set forth will be administered pursuant to the terms of the Stipulation of Settlement, and transferred and/or made payable to the Class Counsel in the Action. She also approved and ordered (i) an Enhancement Award to Class Representative Plaintiff Jennifer Zimmerman in the amount of $5,000; and (ii) payment from the Class Settlement Amount for actual claims administration expenses incurred by the Claims Administrator, CPT Group, both to be paid from the Maximum Settlement Amount as set forth in the Stipulation of Settlement. Provided the Settlement becomes effective under the terms of the Stipulation of Settlement, the Judge also ordered the deadline for mailing the Court-approved Settlement Awards, attorneys' fees and costs, and Enhancement Award is as set forth in the Implementation Schedule within the Preliminary Approval Order. A full-text copy of the Court's Aug. 9, 2019 Final Order is available at https://is.gd/b0Cyls from Leagle.com. Jennifer Zimmerman, Plaintiff, represented by Christian James Gabroy, Gabroy Law Offices, Joshua D. Buck, Thierman Buck, LLP, Kaine M. Messer, Gabroy Law Offices, Leah Lin Jones, Thierman Buck, LLP & Mark R. Thierman, Thierman Buck, LLP. Buddha Entertainment, LLC, doing business as Tao Group, Tao LV Nightclub, Asia Las Vegas, LLC, doing business as Tao Asian Bistro & Strip View Entertainment, LLC, doing business as Tao Group, Lavo Las Vegas, Defendants, represented by Joshua A. Sliker -- Joshua.Sliker@jacksonlewis.com -- Jackson Lewis P.C.. CACHET FINANCIAL: Simmons Sues Over Misappropriated Payroll Funds ----------------------------------------------------------------- SARAH SIMMONS, an individual; AARON MCALLISTER, an individual; ROI-IT, LLC, a Nevada limited liability company on behalf of themselves and all others similarly situated, Plaintiffs, v. CACHET FINANCIAL SERVICES, a California corporation; FINANCIAL BUSINESS GROUP HOLDINGS, a California corporation; MYPAYROLLHR LLC, a Delaware limited liability company; CLOUD PAYROLL, LLC, a Delaware limited liability company; VALUEWISE CORP., a Delaware corporation; MICHAEL MANN, an individual; NATIONAL PAYMENT CORPORATION, a Florida corporation, Defendants, Case No. 2:19-cv-01624-KJD-VCF (D. Nev., Sept. 16, 2019) is an action arising out of the misappropriation of nearly $35,000,000.00 in payroll funds and related payroll taxes across the United States by payroll processing firms and their agents. The Defendants have individually and collectively misappropriated funds belonging to both employers and employees who have utilized services provided by the Defendants, asserts the complaint. Prior to, and at the time of the events giving rise to this action, ROI-IT utilized MyPayroll to provide payroll processing services. MyPayroll utilized Cloud Payroll and/or ValueWise as part of the payroll services provided to ROI-IT. On August 29, 2019, ROI-IT completed its customary company payroll in the amount of $8,759.60, with $6,397.46 representing employee payroll and $2,362.14 representing employer and employee payroll taxes. The $8,756.60 included employee payroll payments to both Simmons and McAllister. In turn, on August 30, 2019, MyPayroll, Cloud Payroll and/or ValueWise deducted $8,756.60 from ROI-IT's bank account. ROI-IT employees Simmons and McAllister, were paid on August 30, 2019 via direct deposit. However, on September 5, 2019, the August 30, 2019 payroll payments to both Simmons and McAllister were withdrawn from their respective personal bank accounts. It was only later determined that the payroll payments were withdrawn by Cachet and/or FBG. Plaintiffs assert that MyPayroll, Cloud Payroll and/or ValueWise contracted with Cachet and/or FBG for purposes of processing electronic payroll fund transfers. On the same day, ROI-IT and Simmons received an e-mail from MyPayroll identifying that the payroll account used by MyPayroll had been frozen, which prevented it from generating transactions and causing reversals on recent transactions. The e-mail indicated that MyPayroll would be updating its clients as to the situation as more information became available. Later that day, ROI-IT and Simmons received a second e-mail from MyPayroll identifying that it was no longer able to process any further payroll transactions and to find an alternative method for processing payroll. The e-mail identified that employers should be prepared to find an alternative way to pay employees including for any payroll reversals that took place. The e-mail further stated that MyPayroll was working to release any funds that were in transit as a result of the situation. Because Simmons and McAllister had their payroll payments withdrawn from their personal bank accounts, ROI-IT thereafter issued manual checks to both of them totaling $6,397.46. As a result, countless instances of employers and employees' financial hardship have been reported. For instance, many have complained of being incapable of making mortgage or rent payments. A multitude of others have been hit with various account fees after the reversal of payroll payments left their bank accounts with negative balances. Others have described difficulties maintaining their quality of life, as they are unable to feed their families, pay their bills, or purchase gas to make it to and from work. Put simply, the effect of Defendants' fraud and Cachet and/or FGB's conduct has rippled nationwide, putting many of those affected in precarious financial situations as a result. Plaintiffs also assert that MyPayroll, Cloud Payroll and/or ValueWise contracted with NatPay for purposes of handling employers' tax withholdings. Therefore, NatPay, not Cachet and/or FBG, was apparently responsible for the payment of payroll tax payments for MyPayroll, says the complaint. Plaintiff Simmons is both a majority owner of ROI-IT and employee of ROI-IT. Plaintiff McAllister is an employee of ROI-IT. ROI-IT is a Nevada limited liability company conducting business in Clark County, Nevada. Cachet is a California corporation conducting business across the United States, and is a subsidiary of FBG. Cachet is not a bank or banking institution.[BN] The Plaintiffs are represented by: Lawrence J. Semenza, III, Esq. Christopher D. Kircher, Esq. Jarrod L. Rickard, Esq. Katie L. Cannata, Esq. SEMENZA KIRCHER RICKARD 10161 Park Run Dr., Ste. 150 Las Vegas, NV 89145 Phone: (702) 835-6803 Facsimile: (702) 920-8669 Email: ljs@skrlawyers.com cdk@skrlawyers.com jlr@skrlawyers.com klc@skrlawyers.com CADENCE BANCORPORATION: Miller Files Suit Over Share Price Drop --------------------------------------------------------------- FRANK MILLER, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. CADENCE BANCORPORATION, PAUL B. MURPHY, and VALERIE C. TOALSON, Defendants, Case No. 4:19-cv-03492 (S.D. Tex., Sept. 16, 2019) is a class action on behalf of persons and entities that purchased or otherwise acquired Cadence securities between July 23, 2018 and July 22, 2019, inclusive, seeking to pursue remedies under the Securities Exchange Act of 1934. Cadence is a financial holding company that focuses on middle-market commercial lending, complemented by retail banking and wealth management services, and purportedly provides banking services to businesses, high net worth individuals, and business owners. Frank Miller purchased Cadence securities during the Class Period. On July 22, 2019, the Company disclosed that "higher credit costs including net charge-offs of $18.6 million and loan provisions of $28.9 million" negatively impacted its second quarter 2019 financial results. On this news, the Company's stock price fell $3.75 per share, or over 19%, to close at $15.86 per share on July 22, 2019, thereby injuring investors. The Plaintiff alleges that 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 lacked adequate internal controls to assess credit risk; (2) that, as a result, certain of the Company's loans posed an increased risk of loss; (3) that, as a result, the Company was reasonably likely to incur significant losses for certain loans; (4) that the Company's financial results would suffer a material adverse impact; 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. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages, says the complaint.[BN] The Plaintiff is represented by: Joe Kendall, Esq. KENDALL LAW GROUP, PLLC 3811 Turtle Creek Blvd., Suite 1450 Dallas, TX 75219 Phone: 214-744-3000 Facsimile: 214-744-3015 Email: jkendall@kendalllawgroup.com - and - Lionel Z. Glancy, Esq. Robert V. Prongay, Esq. Lesley F. Portnoy, Esq. Charles H. Linehan, Esq. Pavithra Rajesh, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Phone: (310) 201-9150 Facsimile: (310) 201-9160 CAPITAL ONE: Curtis et al. Sue over Information Data Breach ----------------------------------------------------------- DUSTIN CURTIS; URSULA N. RILEY; HOWARD CHEN, and JAROD THRUSH, individually and on behalf of all others similarly situated, Plaintiffs v. CAPITAL ONE FINANCIAL CORPORATION; and AMAZON WEB SERVICES, INC., Defendants, Case No. 2:19-cv-01366-BAT (W.D. Wash., Aug. 29, 2019) is an action against the Defendants for failure to take reasonable care and use adequate measures to protect the personal information of the Plaintiffs and members of the class. The Plaintiffs alleges in the complaint that as a result of the Defendants' unfair, inadequate, and unreasonable data security, at least one cyber-criminal and unknown others now possess the personal and financial information of the Plaintiffs and the Class. With account numbers, names, addresses, birthdates, and credit information, criminals can open entirely new credit accounts and bank accounts, and garner millions through fraud that victims will not be able to detect until it is too late. Victims' credit profiles can be destroyed and they will lose the ability to legitimately borrow money, obtain credit, or even open bank accounts. Capital One Financial Corporation provides commercial banking services. The Bank accepts deposits and offers personal credit cards, investment products, loans, and online banking services. Capital One serves customers in the State of Virginia. [BN] The Plaintiffs are represented by: Thomas E. Loeser, Esq. Shelby R. Smith, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Second Avenue, Suite 2000 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 E-mail: toml@hbsslaw.com shelby@hbsslaw.com - and - Detra Shaw-Wilder, Esq. KOZYAK TROPIN & THROCKMORTON LLP 2525 Ponce de Leon Boulevard, 9th Floor Miami, FL 33134 Telephone: (305) 372-1800 Facsimile: (305) 372-3508 E-mail: dps@kttlaw.com CAPITAL ONE: Faces Zimprich Suit in Central District of California ------------------------------------------------------------------ A class action lawsuit has been filed against Capital One Financial Corporation. The case is captioned as Randy Zimprich, individually, and on behalf of all others similarly situated, the Plaintiff, vs. Capital One Financial Corporation and Does 1 through 10, the Defendants, Case No. 8:19-cv-01689-JVS-DFM (C.D. Cal., Sept. 4, 2019). The case is assigned to the Hon. Judge James V. Selna. Capital One is a bank holding company specializing in credit cards, auto loans, banking, and savings accounts, headquartered in McLean, Virginia.[BN] Attorneys for the Plaintiff are: Daniel S Robinson, Esq. Michael Willard Olson, Esq. Wesley K Polischuk, Esq. ROBINSON CALCAGNIE INC 19 Corporate Plaza Drive Newport Beach, CA 92660 Telephone: (949) 720-1288 Facsimile: (949) 720-1292 E-mail: drobinson@robinsonfirm.com molson@robinsonfirm.com wpolischuk@robinsonfirm.com CARON BLACK: Wolf Files Class Suit Over Sale to VMWare ------------------------------------------------------ JACK WOLF, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. CARON BLACK, INC., PATRICK MORLEY, JEFFREY FAGNAN, TOM KILLALEA, RONALD NORDIN, VANESSA PEGUEROS, JOSEPH TIBBETTS, JR., JILL WARD, ANTHONY ZINGALE, VMWARE, INC., and CALISTOGA MERGER CORP., Defendants, Case No. 1:19-cv-01739-UNA (D. Del., Sept. 16, 2019) is an action stemming from a proposed transaction announced on August 22, 2019, pursuant to which Carbon Black, Inc. will be acquired by VMware, Inc. and Calistoga Merger Corp. On August 22, 2019, Carbon Black's Board of Directors caused the Company to enter into an agreement and plan of merger with VMware. Pursuant to the terms of the Merger Agreement, Calistoga commenced a tender offer to acquire all of Carbon Black's outstanding common stock for $26.00 per share in cash. The Tender Offer is scheduled to expire on October 3, 2019. On September 6, 2019, defendants filed a Solicitation/Recommendation Statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Plaintiff asserts that the Solicitation Statement omits material information with respect to the Proposed Transaction, which renders the Solicitation Statement false and misleading. Accordingly, the Plaintiff alleges that Defendants violated Sections 14(e), 14(d), and 20(a) of the Securities Exchange Act of 1934 in connection with the Solicitation Statement. Plaintiff is the owner of Carbon Black common stock. Carbon Black is a leader in cloud-native endpoint protection.[BN] The Plaintiff is represented by: Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Phone: (302) 295-5310 Facsimile: (302) 654-7530 Email: bdl@rl-legal.com gms@rl-legal.com - and - Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Phone: (484) 324-6800 Facsimile: (484) 631-1305 Email: rm@maniskas.com CHARTER COMMUNICATIONS: Can Compel Arbitration in Olsen Suit ------------------------------------------------------------ In the cases, KEN OLSEN, JEFF BREGMAN, CHUCK TRAMONTOZZI and JUSTEN LESLIE, Plaintiffs, v. CHARTER COMMUNICATIONS, INC., CHARTER COMMUNICATIONS HOLDINGS, LLC and SPECTRUM MANAGEMENT HOLDING COMPANY, LLC (f/k/a TIME WARNER CABLE, INC.), Defendants. WOLFSON & CARROLL, LLC, LUKE VICENS and DAVID GOMEZ, Plaintiffs, v. CHARTER COMMUNICATIONS, INC., CHARTER COMMUNICATIONS HOLDINGS, LLC and SPECTRUM MANAGEMENT HOLDING COMPANY, LLC (f/k/a TIME WARNER CABLE, INC.), Defendants, Case Nos. 18cv3388 (JGK), 18cv4972 (JGK) (S.D. N.Y.), Judge Joel G. Koeltl of the U.S. District Court for the Southern District of New York granted the Defendants' motion to compel arbitration and to stay these cases. The Plaintiffs were customers of Charter or one of its former subsidiaries, Time Warner Cable ("TWC"). Between 2009 and 2016, all of the Plaintiffs, with the exception of Mr. Vicens, signed up and paid for TWC's "business class" internet services. Other than Plaintiff Wolfson & Carroll, LLC, each of the Plaintiffs subscribed in an individual capacity, but appear to have used TWC's services for their businesses. As subscribers, the Plaintiffs all received similar one-page Service Agreements that were subject to a separate set of "Terms and Conditions." Each Service Agreement notified the customer of the Terms and Conditions and of a specific provision for arbitration of disputes relating to the agreement. Each Plaintiff signed a Service Agreement. As the Service Agreements stated, customers could view the separate "Terms and Conditions" document on TWC's website. These Terms and Conditions (the "Legacy Terms") remained largely unchanged until 2017. Every version of the Legacy Terms provided that some of its sections, including the arbitration provision of Section 21, will survive the termination or expiration of the Legacy Agreement. In May 2016, TWC merged into Charter, and was renamed Spectrum Management Holding Co., LLC. In 2017, as part of its post-merger organization, Charter replaced TWC's Legacy Terms with new terms and conditions for all new and existing business class customers. Charter notified existing customers about the Updated Terms through the customers' monthly billing statements, sent by U.S. mail, in June or July 2017. The Plaintiffs do not dispute that they received these billing statements. Like the Legacy Terms, the Updated Terms were available on Charter's website. All of the Plaintiffs who received a June or July 2017 billing statement paid their bills, and continued to use Charter's internet services afterwards. Meanwhile, on July 26, 2017, Plaintiff Vicens signed up for the same internet services that Charter now provided to all of the other Plaintiffs. As a new customer, Vicens did not receive notice of the Updated Terms through a monthly billing statement. Instead, the Defendants allege -- and the Plaintiffs do not dispute -- that Vicens received a business customer "Welcome Kit" brochure, which directed Vicens to review the Updated Terms on Spectrum's website. Vicens also began receiving monthly billing statements that continuously reminded customers to view the Updated Terms on Spectrum's website. Like the Legacy Terms, the Updated Terms contained a provision for arbitrating disputes. A warning located near the beginning of the Updated Terms highlighted the existence of the arbitration provision within the document. Section 18 of the Updated Terms contained the arbitration provision itself. Section 22(g) designated New York law as governing the Updated Terms, and designated venue for "any legal action" in the U.S. District Court for the Southern District of New York. In their amended complaints, the Plaintiffs allege that Charter (and before Charter, TWC) misled customers by overcharging them for internet services that failed to deliver the speedy services promised. They assert claims for breach of contract and violation of state deceptive trade practices and consumer protection laws. They also seek declaratory and injunctive relief finding that any arbitration agreement is unenforceable, and enjoining the Defendants from enforcing any arbitration agreement. Finally, the Plaintiffs seek restitution, disgorgement, cancellation of amounts due on accounts, accreditation of past amounts paid on accounts, and a prohibition against cancelling services for reason of nonpayment. The Defendants notified the Plaintiffs in both matters of their intent to arbitrate. The Plaintiffs have refused to arbitrate. Judge Koeltl finds that while the Updated Terms were not physically included with the billing statements, customers had options to access the arbitration provision. The billing statements listed a short address to access the Defendants' website, where the Updated Terms were constantly available. The billing statements also provided customers with a phone number for ordering a print copy of the Updated Terms. The Updated Terms themselves also provided sufficient notice of the arbitration provision. In any event, the Judge holds that the Legacy Terms also provided for arbitration for all of the Plaintiffs besides Vicens. The Plaintiffs do not allege that they failed to assent to the Legacy Terms. Nor do they allege that such terms were fraudulently induced. The Legacy Terms specifically explained that the arbitration provision would survive termination or expiration of the Legacy Terms. Accordingly, an arbitration provision would remain in effect if the Updated Terms were somehow to be found unenforceable. Therefore, whether under the Updated Terms or the Legacy Terms, the parties entered into valid agreements to arbitrate. Having found agreements to arbitrate, the second step is to determine whether the Plaintiffs' claims are arbitrable. The Judge finds that the clear and unmistakable terms of the Charter agreements require the arbitrator, not the Court, to determine the scope of arbitration. Both the Updated Terms and the Legacy Terms delegate this authority explicitly. Moreover, both sets of terms also incorporate the AAA Commercial Arbitration Rules that delegate the issue of arbitrability to the arbitrator. Therefore, under either the Updated or Legacy Terms, the scope of arbitrability must be decided by the arbitrator. Given this broad delegation, the Judge holds that the Plaintiffs' remaining arguments concerning arbitrability are for the arbitrator to decide, including the effect of the class action waiver and the degree to which their' "injunctive" claims should be excluded from arbitration. Therefore, all of the plaintiffs' claims must be sent to arbitration as provided by the Updated Terms. It is for the arbitrator to decide whether any of the parties' disputes are excluded from arbitration. Both actions are stayed pending arbitration. Judge Koeltl has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the reasons explained, he granted the Defendants' motion to compel arbitration. Pursuant to 9 U.S.C. Sections 3 and 4, the parties are directed to proceed to arbitration in the manner provided for in the Updated Terms. These cases are stayed pending the conclusion of the arbitration. The Clerk of Court is directed to close these cases on the active docket of the Court subject to reinstatement depending on any developments in the arbitration. A full-text copy of the Court's Aug. 9, 2019 Memorandum Opinion and Order is available at https://is.gd/0nqSw4 from Leagle.com. Wolfson & Carroll, LLC, Luke Vicens & David Gomez, Plaintiffs, represented by Joseph Ralph Santoli -- josephsantoli@aol.com -- Joseph R. Santoli, Esq., Kara A. Elgersma, Wexler Wallace LLP, Kenneth A. Wexler, Wexler Toriseva Wallace LLP & Olimpio Lee Squitieri -- lee@sfclasslaw.com -- Squitieri & Fearon LLP. Charter Communications, Inc., Charter Communications Holdings LLC & Spectrum Management Holding Company LLC, formerly known as Time Warner Cable, Inc., Defendants, represented by Andrew D. Prins -- andrew.prins@lw.com -- Latham & Watkins LLP, Matthew A. Brill -- matthew.brill@lw.com -- Latham & Watkins LLP, Alexander Stout -- alexander.stout@lw.com -- Latham & Watkins LLP & Nicholas L. Schlossman -- alexander.stout@lw.com -- Latham & Watkins LLP. CHIPOTLE MEXICAN: Pays $6.5MM to Settle Non-GMO Class Suit ---------------------------------------------------------- Heather Lalley, writing for Restaurant Business Online, reports that Chipotle Mexican Grill will pay $6.5 million to settle a class-action suit that accused the fast casual of falsely advertising that its food is free of genetically modified ingredients, according to documents filed this week in California federal court. The settlement, in which Chipotle admits no wrongdoing, ends three years of litigation against the 2,500-unit chain. It entitles anyone who purchased food from any Chipotle unit in the U.S. from April 27, 2015, until June 30, 2016, to $2 back on each qualifying pu rchase, with the ability to claim up to five qualifying purchases without documentation. Those with proof of purchase can be awarded up to $20 for 10 qualifying purchases during the period, with a $30 per-household cap, according to the settlement. In 2015, Chipotle became the first major restaurant chain to announce it would start serving food entirely free of genetically engineered ingredients, after becoming the first national restaurant company to disclose GMO ingredients two years earlier. At the time, Chipotle said most of the genetically modified ingredients in its food were found in soybean oil and tortillas. But in the class-action suit, the plaintiffs allege that Chipotle's food products "may have been sourced from livestock that consumed GMO animal feed." The $6.5 million settlement could serve as a point of caution for other brands as they consider their marketing messages. For its part, Chipotle said its GMO-related marketing campaigns are "true, are substantiated through science, and are therefore not deceptive or misleading as a matter of law," according to the court filing. Earlier this week, Chipotle became the first restaurant chain to be targeted under New York City's Fair Workweek Law, with the city accusing the chain of violating its predictable scheduling rule. [GN] CJ MAHAN: Betzner Suit Remanded to Prairie County Circuit Court --------------------------------------------------------------- Judge Billy Roy Wilson of the U.S. District Court for the Eastern District of Arkansas, Western Division, remanded the case, PAUL BETZNER, on behalf of all others similarly situated, Plaintiffs, v. CJ MAHAN CONSTRUCTION COMPANY LLC, et al., Defendants, Case No. 4:17-CV-00778-BRW (E.D. Ark.), to the Circuit Court of Prairie County, Arkansas. A question of subject-matter jurisdiction may be raised sua sponte at any time. Federal court diversity jurisdiction requires an amount in dispute over $75,000 and all parties on one side of the controversy must be citizens of different states from all of the parties on the other side. An affidavit attached to the Plaintiffs' First Amended Complaint noted that the counsel was still attempting to identify the "employees, servants, and agents of the named defendants and any other subcontractors, other partnerships, individuals, limited liability companies, and corporations" that might have been involved. When the Defendants removed the case on Nov. 27, 2017, John Doe Defendants were still listed in the complaint. After removal, the Plaintiffs requested leave to file an amended complaint. They noted that the Defendants knew, or should have known, the identity of all John Does involved in the events, but the Plaintiffs only recently discovered their names after conducting depositions. For good cause shown, the Plaintiffs' motion for leave to amend complaint was granted. In the Second Amended Complaint, the Plaintiffs named four new Defendants -- Scott Richardson (construction superintendent), Chris Gentry (labor foreman), Bryan Hoffman (laborer), and Scott Wells (machine operator) -- all of whom are Arkansas residents. Typically, diversity jurisdiction is determined at the time of removal and when determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) the citizenship of defendants sued under fictitious names will be disregarded. However, 28 U.S.C. Section 1447(e) provides that if after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court. Judge Wilson holds that the Plaintiffs were permitted leave to amend their complaint to add previously unknown, non-diverse Defendants. In instances like this, he must consider diversity at the time of the amendment. Accordingly, complete diversity is lacking and remand is mandatory. Alternatively, the Defendants removed the case claiming jurisdiction under the Class Action Fairness Act (which requires a class of over 100 and damages of over $5 million). However, it seems to him that the local controversy exception prevents removal. He finds that all of the class members and four Defendants are from Arkansas, and the events took place in Arkansas. Additionally, the Plaintiffs seek joint and several relief from all the Defendants. Based on the findings of fact and conclusions of law, Judge Wilson directed the Clerk of the Court to remand the case to the Circuit Court of Prairie County, Arkansas. However, remand may not be issued until two weeks after the date of the Order so that the Defendants have a chance to comply with 28 U.S.C. Section 1453(c)(1), if they so choose. A full-text copy of the Court's Aug. 9, 2019 Order is available at https://is.gd/Q4ILGP from Leagle.com. Calvin Fred Betzner Revocable Trust, originally named as Paul Betzner and Rhonda Betzner, on behalf of all others similarly situated, James Alberson, on behalf of all others similarly situated, Tiffani Alberson, individually and as a parent and next friend of M J, a minor; on behalf of all others similarly situated, Kelley Kelly, on behalf of all others similarly situated, Tony Patterson, on behalf of all others similarly situated & City of Fredonia, on behalf of all others similarly situated, Plaintiffs, represented by John Doyle Nalley -- johndoylenalley@hotmail.com -- Lovell & Nalley, Mattie A. Taylor, Hall & Taylor Law Partners & Randall I. Hall -- randy@littlerocktriallawyers.com -- Hall & Taylor Law Partners. CJ Mahan Construction Company LLC & Parsons-Mahan Joint Venture, Defendants, represented by Gary D. Marts, Jr. -- gmarts@wlj.com -- Wright, Lindsey & Jennings, Jaimie Grunert Moss -- jmoss@wlj.com -- Wright, Lindsey & Jennings, Kyle Ray Wilson -- kwilson@wlj.com -- Wright, Lindsey & Jennings & Stephen R. Lancaster -- slancaster@wlj.com -- Wright, Lindsey & Jennings. Parsons Construction Group Inc, Defendant, represented by Jaimie Grunert Moss, Wright, Lindsey & Jennings, Gary D. Marts, Jr., Wright, Lindsey & Jennings & Kyle Ray Wilson, Wright, Lindsey & Jennings. John Does, 1-30, Defendant, represented by Gary D. Marts, Jr., Wright, Lindsey & Jennings & Kyle Ray Wilson, Wright, Lindsey & Jennings. COLGATE-PALMOLIVE: Court Denies Certification in De Lacour Suit --------------------------------------------------------------- The United States District Court for the Southern District of New York issued an Opinion and Order denying Plaintiffs' Motion for Class Certification in the case captioned ANNE DE LACOUR, ANDREA WRIGHT, and LOREE MORAN, individually and on behalf of all others similarly situated, Plaintiffs, v. COLGATE-PALMOLIVE CO., and TOM'S OF MAINE, INC., Defendants. No. 16-CV-8364 (KMW). (S.D.N.Y.). Plaintiffs bring this consumer class action against Defendants Tom's of Maine, Inc. and its parent company, Colgate-Palmolive Co., asserting several causes of action related to Defendants' use of the word natural on the labels and packages of its products, including deodorants and toothpastes. Plaintiffs claim that Defendants breached an express warranty and violated several state statutes by falsely and misleadingly advertising its products. Plaintiffs now move to certify a nationwide class of consumers who purchased Tom's of Maine products on or after September 24, 2015 in the United States, and three subclasses consisting of members of that class who purchased Tom's of Maine products in California, Florida, and New York, respectively. For these reasons, Plaintiffs' motion is denied without prejudice to Plaintiffs refiling with adequate evidence and analysis of: (1) the choice of law considerations for the breach of express warranty claim. (2) material variations in state laws of express warranty, or lack thereof. (3) the impact of material variations in state laws of express warranty, if any, on a finding that questions of law or fact common to the members of the proposed class predominate over questions affecting only individual members. Class Certification Requirements Under Rule 23 Federal Rule of Civil Procedure 23 sets forth a two-step process for determining whether a court may certify a case as a class action. The party seeking class certification bears the burden of proving each of the requisite elements of Rule 23 by a preponderance of the evidence. Failure to prove any of the elements precludes class certification. First, under Rule 23(a), Plaintiffs must show that: (1) the proposed class is so numerous that joinder of all class members is impracticable (2) there are questions of law or fact common to the class (3) Plaintiffs' claims or defenses are typical of the claims or defenses of the class and (4) the Plaintiffs will fairly and adequately protect the interests of the class. Second, Plaintiffs must establish that the proposed class fits within one of the three subsections of Rule 23(b). Here, Plaintiffs rely alternatively on the second and third subsections. Under the second subsection, Plaintiffs must demonstrate that the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief is appropriate respecting the class as a whole. Under the third subsection, Plaintiffs must show that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Defendants raise challenging questions about whether Plaintiffs have satisfied Rule 23(a). The Court need not address those arguments, however, because Plaintiffs have failed to meet the requirements of Rule 23(b). Class Certification Under Rule 23(b)(2) This putative class is not suitable for certification under Rule 23(b)(2). Subsection (b)(2) provides a vehicle for broad injunctive or declaratory relief to redress group-wide injury. Claims for individualized monetary damages bar class certification under Rule 23(b)(2) unless they are merely incidental to requested declaratory or injunctive relief. Here, Plaintiffs have made no effort to demonstrate that monetary damages are incidental the injunctive relief they seek. Their claimed injury is economic. The crux of their complaint is that they paid a price premium for Tom's of Maine products because the products were described as natural. Plaintiffs submitted two expert reports related to price premium calculations in support of their motion to certify this case as a class action an indication, although not dispositive, that damages figure centrally in the case and involve substantial and complex analyses. The balance of persuasive case law also presents a standing problem under Rule 23(b)(2). Plaintiffs here are unlikely to buy the products again and may, therefore, lack standing to pursue a forward-looking injunction. But the Court need not decide the standing question at this stage because it finds that Plaintiffs have failed to meet their burden to demonstrate that the damages they seek are incidental to their requested declaratory and injunctive relief. Class Certification Under Rule 23(b)(3) Subsection (b)(3) allows for class certification where movants seek relief primarily in the form of damages. A class certified under Rule 23(b)(3) must be sufficiently cohesive to warrant adjudication by representation. In reaching this determination, courts consider whether the putative class members could establish each of the required elements of their claims using common evidence. Although a movant need not establish the exclusivity of common questions, it must show at least their predominance. Predominance is a particularly thorny condition where, as here, movants seek to certify a nationwide class. Plaintiffs assert a breach of express warranty claim on behalf of every person who purchased Tom's of Maine products in the United States. Defendants argue that New York choice of law rules apply and, according to those rules, the substantive law of the state where each class member resides governs that class member's breach of express warranty claim thus implicating the laws of all fifty states. If Defendants are correct, and if the various state laws differ materially, common questions of law will not predominate. Several courts have arrived at that conclusion under similar circumstances. Indeed, few warranty cases ever have been certified as class actions let alone as nationwide classes, with the additional choice-of-law problems that complicate such a venture. Here, Plaintiffs have neglected their burden. Plaintiffs have not conducted a choice of law analysis. Plaintiffs have not presented or analyzed any differences in state laws of breach of express warranty. And Plaintiffs have not examined how any material differences in those laws bear on predominance. Plaintiffs acknowledge the issue only in a brief, conclusory footnote. In neglecting their burden, Plaintiffs have impaired the Court's ability to assess whether common questions of law predominate over individual ones. Plaintiffs' motion for class certification is therefore denied without prejudice to refiling as set forth below. A full-text copy of the District Court's September 12, 2019 Opinion and Order is available at https://tinyurl.com/yxfhdnyx from Leagle.com. Anne de Lacour, individually and on behalf of all others similarly situated, Andrea Wright, individually and on behalf of all others similarly situated & Loree Moran, Plaintiffs, represented by Frederick John Klorczyk - fklorczyk@bursor.com - Bursor & Fisher, P.A., Neal Jamison Deckant - ndeckant@bursor.com - Bursor & Fisher, P.A., Sarah Westcot, I - swestcot@bursor.com - Bursor & Fisher, P.A., Yitzchak Kopel - ykopel@bursor.com - Bursor & Fisher, P.A. & Joshua David Arisohn - jarisohn@bursor.com - Bursor & Fisher P.A. Colgate-Palmolive Co. & Tom's of Maine Inc., Defendants, represented by Blake Thomas Denton- blake.denton@lw.com - Latham & Watkins LLP, David Callahan - david.callahan@lw.com - Latham & Watkins LLP, Kathleen Elsner - kathleen.elsner@lw.com - Latham & Watkins LLP & Kathleen Lally - kathleen.lally@lw.com - Latham & Watkins LLP. CONDUENT BUSINESS: Direct Express(R) Cards Not Safe, Says Carnley ----------------------------------------------------------------- JON CARNLEY, JACKIE DENSMORE, PAUL KATYNSKI, JENNIFER KREEGAR, HAROLD MCPHAIL, KATHLEEN PAGLIA, JB SIMMS, and KENNETH TILLMAN, on behalf of themselves and all others similarly situated v. CONDUENT BUSINESS SERVICES, LLC d/b/a DIRECT EXPRESS(R), COMERICA, INC., and COMERICA BANK, Case No. 5:19-cv-01075 (W.D. Tex., Sept. 5, 2019), alleges that the Defendants misrepresent to their customers that their Direct Express(R) program is completely safe. The complaint relates that the Plaintiffs and the members of the proposed classes reasonably rely on the Defendants' statements regarding the safety of their Direct Express(R) cards. In reality, Direct Express(R) cards are unsafe, having negligible security protections or fraud alert capabilities, and the Defendants' systems are rife with fraudulent transactions, the Plaintiffs allege. The Plaintiffs receive federal benefits, which are provided to them via their Direct Express(R) Debit MasterCard Card issued by Comerica Bank and the program is operated by Conduent. The Plaintiffs contend that many of them have experienced fraudulent transactions that the Defendants failed to address. The Plaintiffs originally filed a lawsuit against the Defendants on February 12, 2019 in the United States District Court for the Northern District of Georgia, in the case styled Almon v. Conduent Business Services, LLC, et al., Case No. 1:19-cv-00746-LMM. On August 9, 2019, the District Court in Almon issued an order allowing only the Georgia customers to proceed in Georgia. The claims of Plaintiffs in this action--all of whom live outside of Georgia--were dismissed for lack of jurisdiction. The Plaintiffs promptly renew their claims against Defendants in this lawsuit. Conduent Business Services, LLC is a limited liability company organized under the laws of Delaware with its principal place of business located in Dallas, Texas. Conduent has substantial operations in San Antonio, including an office building housing hundreds of employees at 2822 General Hudnell Drive. Conduent uses the Direct Express(R) trademark to administer federal benefit payments across the country to benefit recipients of at least nine federal agencies. When Direct Express(R) customers contact Conduent, they are instructed to write to Conduent at a post office box located in San Antonio, Texas. Conduent's San Antonio office houses substantial operations for the Direct Express(R) program. Comerica, Inc. is an entity incorporated under the laws of Delaware with its principal place of business located in Dallas, Texas. Comerica is a financial services company that serves millions of customers nationwide. Comerica was among the 25 largest commercial bank holding companies in the United States. Comerica Bank offers a broad array of retail, small business, and commercial banking products.[BN] The Plaintiffs are represented by: Allen R. Vaught, Esq. VAUGHT FIRM, LLC 6122 Palo Pinto Ave. Dallas, TX 75214 Telephone: (214) 675-8603 Facsimile: (214) 261-5159 E-mail: allen@vaughtfirm.com - and - E. Adam Webb, Esq. G. Franklin Lemond, Jr., Esq. WEBB, KLASE & LEMOND, LLC 1900 The Exchange, S.E., Suite 480 Atlanta, GA 30339 Telephone: (770) 444-9325 Facsimile: (770) 217-9950 E-mail: Adam@WebbLLC.com Franklin@WebbLLC.com CONTEXTLOGIC INC: Choon Sues Over Ilegal Sale of Rubber Band Craft ------------------------------------------------------------------ Choon's Design, LLC, Individually and on Behalf of a Class of Similarly Situated Individuals, Plaintiffs, v. Contextlogic Inc., Defendant, Case No. 19-cv-05300, (N.D. Cal., August 23, 2019), seeks an order requiring Contextlogic to immediately cease and desist from selling Choon's merchandise without their authority; compensatory damages; disgorgement or payment of restitution of Defendant's ill-gotten gains; prejudgment and post-judgment interest; attorneys' fees and costs; and such further relief for violation of the Lanham Act for false association and trademark infringement, violation of the California Unfair Competition Law and False Advertising Law. Choon's Design is the maker of Rainbow Loom (R), an educational rubber band craft for children with U.S. Patent No. 8,485,565 and Trademark Registration Numbers 4768248, 4768101, 4762955, 4753133, 4726514, 4714893, 4714891 and 4345796. ContextLogic operates as "Wish.com," an online retail site. Plaintiff claims that their products are for sale on Wish's website despite not having any business with them. [BN] Plaintiff is represented by: Lisa J. Frisella, Esq. Kimberly D. Neilson, Esq. FRISELLA LAW, APC 2139 First Ave., Suite 200 San Diego, CA 92101 Telephone: (619) 260-3500 Facsimile: (619) 260-3600 Email: lisa@frisellalaw.com kim@frisellalaw.com - and - Dean Gresham, Esq. Bruce Steckler, Esq. Stuart Cochran, Esq. L. Kirstine Rogers, Esq. STECKLER GRESHAM COCHRAN PLLC 12720 Hillcrest Road, Suite 1045 Dallas, TX 75230 Telephone: (972) 387-4040 Facsimile: (972) 387-4041 Email: dean@stecklerlaw.com bruce@steckerlaw.com stuart@stecklerlaw.com krogers@stecklerlaw.com CORTIVA INSITUTE: Class Suit Over Loop Campus Closure Filed ----------------------------------------------------------- Carrie Bradon, writing for Cook County Record, reports that a woman has filed a class action lawsuit against the company that operates Cortiva Insitute, alleging she and other students were defrauded and exploited. Lanetta M. Thomas, individually and on behalf of all others similarly situated, filed a complaint on Aug. 20 in Cook County Circuit Court against Seg. Cort LLC, which does business as Cortiva Institute, alleging unjust enrichment and fraud. According to the complaint, the plaintiff enrolled in December 2018 to attend Cortiva's Chicago Loop campus as a full-time student in their Professional Massage Therapy diploma program. The plaintiff said she expected to graduate in August 2019. The plaintiff said she received subsidized loans from the U.S. Department of Education, which totaled $17,250. The plaintiff said she regularly attended classes, but in March 2019 the defendant failed to provide the services that were required for the program's study, including failing to provide instructors for classes, and cancelling and rescheduling classes without advance notice. The plaintiff said she received an email from Cortiva in April 2019, stating the campus would be closing on June 20, 2019 and that her options were to expedite the education and complete it early; withdraw and transfer to another school; or withdraw and receive a full refund. The plaintiff said she has tried to withdraw and transfer her credits to another school, but the credits were not accepted by the transfer school. The plaintiff attempted to get a refund from the defendant, but the defendant allegedly has failed to honor their promise. The plaintiff is seeking declaratory judgment against the defendant, compensatory damages, attorneys' fees and court costs, interest and just relief. The plaintiff is represented by attorneys Larry D. Drury, Esq. and Thomas M. Rebholz, Esq. of Larry D. Drury Ltd., in Chicago. [GN] COVANTA HOLDING: Brown Sues BOD Over Unauthorized Payments ----------------------------------------------------------- JERRY BROWN, individually and on behalf of himself and all other similarly situated stockholders of COVANTA HOLDING CORPORATION, and derivatively on behalf of COVANTA HOLDING CORPORATION, Plaintiff, v. COVANTA HOLDING CORPORATION, a Delaware Corporation, Defendant-Nominal Defendant, and DAVID M. BARSE, RONALD J. BROGLIO, C.B. BYNOE, LINDA J. FISHER, JOSEPH M. HOLSTEN, OWEN MICHAELSON, ANTHONY J. ORLANDO, DANIELLE PLETKA, MICHAEL W. RANGER, ROBERT S. SILBERMAN, JEAN SMITH, AND SAMUEL ZELL, Defendants, Case No. 2019-0735- (Chancery Ct., Del., Sept. 12, 2019) is an action brought because Covanta's board of directors has violated the Delaware General Corporation Law and the Company's Amended and Restated Bylaws by making unauthorized payments to the Board's non-employee directors. Section 141(h) of the DGCL authorizes directors to fix their own compensation subject to the limitations and restrictions, if any, imposed by the company's certificate of incorporation and bylaws. Corporate bylaws are the legal instrument used to set forth the rules by which the company's directors conduct business. In its Bylaws, Covanta has long imposed restrictions on the Board's ability to engage in self-dealing. Specifically, the Bylaws permit Covanta's directors to pay themselves a fixed fee for each Board meeting that they attend, and reimbursement of expenses for attending such meetings (e.g., travel expenses). The Bylaws expressly prohibit directors from taking any other payments or compensation for their service on the Board. Contrary to the DGCL, the Bylaws, and their fiduciary duty to the Company and its stockholders, the Board has established a non-employee director compensation program that includes numerous unauthorized payments, asserts the complaint. The Board awards its non-employee directors an annual cash retainer, an annual equity award, and additional cash retainers for directors who chair Board committees. None of these payments are permitted by the Bylaws. Prior to filing this action, Plaintiff sent a letter to the Board demanding that the Board recover these wrongful payments for the benefit of the Company and bring Covanta's director compensation program into compliance with the Bylaws. The Board rejected Plaintiff's demand in its entirety, says the complaint. Plaintiff Jerry Brown has owned Covanta common stock continuously since 2017. Covanta is a holding company that conducts operations through subsidiaries engaged predominantly in the business of waste and energy services.[BN] The Plaintiff is represented by: Steven J. Purcell, Esq. Douglas E. Julie, Esq. Robert H. Lefkowitz, Esq. Kaitlyn T. Devenyns, Esq. PURCELL JULIE & LEFKOWITZ LLP 708 Third Avenue, 6th Floor New York, NY 10017 Phone: 212-725-1000 Facsimile: 212-725-0270 - and - David A. Jenkins, Esq. Neal C. Belgam, Esq. Jason Miller, Esq. SMITH KATZENSTEIN & JENKINS LLP 1000 West Street, Suite 1501 Wilmington, DE 19801 Phone: 302-652-8400 Email: daj@skjlaw.com ncb@skjlaw.com jm@skjlaw.com COWORX STAFFING: Galvez Seeks Minimum & Overtime Wages ------------------------------------------------------ LYSETTE GALVEZ, INDIVIDUALLY AND ON BEHALF OF THOSE SIMILARLY SITUATED, the Plaintiff, vs. COWORX STAFFING SERVICES LLC, A DELAWARE CORPORATION; MICHAEL EPSTEIN, AN INDIVIDUAL; AND DOES 1 THROUGH 10, INCLUSIVE, the Defendants, Case No. CGC-19-578983 (Cal. Super., Sept. 4, 2019), alleges that Defendants failed to pay overtime wages, failed to pay minimum and regular wages, failed to make timely final wage, failed to reimburse expenses, and failed to provide proper itemized wage statements under the California Labot Code. The Plaintiff was a non-exempt employee of Defendants. Coworx Staffing Services LLC provides staffing solutions. The company offers temporary staffing, direct hire, pay rolling, diversity, and managed services. Coworx Staffing Services serves customers in the United States.[BN] Attorneys for the Plaintiff are: Kevin Woodall, Esq. WOODALL LAW OFFICES 100 Pine Street, Suite 1250 San Francisco, CA 94111 Telephone: (415) 413-4629 Facsimile: (866) 937-4109 E-mail: kevin@kwoodalllaw.com CVS PHARMACY: Court Grants Stay in Ferguson ------------------------------------------- The United States District Court for the Southern District of California issued an Order granting Defendant's Motion to Stay in the case captioned LES FERGUSON, an individual, Plaintiff, v. CVS PHARMACY, INC., a corporation, Defendant. Case No. 18-CV-1529 JLS (MDD). (S.D. Cal.). Plaintiff filed a punitive class action alleging that Defendant falsely claimed that the Algal-900 DHA supplement was clinically shown to improve memory. The factual allegations in Plaintiff's complaint are nearly identical to the factual allegations in the complaint in Worth v. CVS Pharmacy, Inc., No. 16-CV-498 SMG, a punitive class action filed on February 1, 2016, in the Eastern District of New York (Worth Action). LEGAL STANDARD Courts have the discretionary power to stay proceedings. In determining whether to grant a motion to stay, the competing interests that will be affected by the granting or refusal to grant a stay must be weighed. Those interests include: (1) the possible damage which may result from the granting of a stay (2) the hardship or inequity which a party may suffer in being required to go forward and (3) the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay. In its Motion, Defendant requests the court to grant a one hundred and twenty day stay pending final approval of the proposed settlement in the Worth Action (Worth Settlement). Consequently, by virtue of Civil Local Rule 7.1(f)(3)(c), Plaintiff has consented to the relief requested in Defendant's Motion. Nonetheless, the Court addresses Defendant's Motion on the merits and briefly analyzes each of the Landis factors below. Possible Damage from Granting of a Stay When a district court approves a class action settlement, a federal court may release not only those claims alleged in the complaint, but also a claim based on the identical factual predicate as that underlying the claims in the settled class action. Defendant contends that Plaintiff will not suffer any damage if the requested stay is granted because this action and the Worth Action are based on the same alleged misrepresentations regarding the same product, meaning that the Worth Settlement, if approved, will necessitate dismissal of this action despite the differing theories of liability. The Court agrees with Defendant that the requested stay will not damage Plaintiff because a stay will ensure Hardship to Defendant Absent a Stay For the same reasons, not granting a stay would harm Defendant because it would be burdensome for both parties to spend time, energy, and resources on pretrial and discovery issues when this case may be dismissed upon final approval of the Worth Settlement. Consequently, this factor also favors granting the requested stay. The Orderly Course of Justice Finally, the Court concludes that judicial economy would not be served by having the Court expend resources on a case that may be dismissed. Accordingly, the final Landis factor also weighs in favor of granting a stay. Because all three Landis factors weigh in favor of granting Defendant the requested stay, the Court concludes that a limited stay pending the Worth Settlement is appropriate. The Court grants Defendant's Motion. A full-text copy of the District Court's September 12, 2019 Order is available at https://tinyurl.com/y592uxvo from Leagle.com. Les Ferguson, individually and on behalf of all others similarly situated, Plaintiff, represented by Trenton R. Kashima - jrk@classactionlaw.com - Finkelstein & Krinsk, LLP. CVS Pharmacy, Inc., Defendant, represented by Frank Thomas Spano - fspano@polsinelli.com - Polsinelli LLP, pro hac vice, Ilana Gabriella Zelener - izelener@polsinelli.com - Polsinelli LLP, Jennifer Joan Axel - jaxel@polsinelli.com - Polsinelli PC, pro hac vice & Noel S. Cohen - ncohen@polsinelli.com - Polsinelli LLP. Jeffrey Worth & Robert Burns, Intervenors, represented by Michael R. Reese - michael@reeserichman.com - Reese Richman LLP. DEARBORN PANTHEION: Underpays Exotic Dancers, Briggs Alleges ------------------------------------------------------------ JADA BRIGGS, individually and on behalf of all others similarly situated, Plaintiff v. DEARBORN PANTHEION, LLC; MARWAN HAIDAR; and MELISSA HASHEM, Defendants, Case No. 2:19-cv-12549-MOAB-APP (E.D. Mich., Aug. 29, 2019) is an action against the Defendants for failure to pay minimum wage. The Plaintiff was employed by the Defendants as exotic dancer. Dearborn Pantheion, LLC owns and operates an adult entertainment club.[BN] The Plaintiff is represented by: Jennifer Lossia McManus, Esq. FAGAN MCMANUS, P.C. 25892 Woodward Ave. Royal Oak, MI 48067 Telephone: (248) 658-8951 EPDUSA INC: Garcia Hits Illegal Tip Pool, Seeks Overtime Pay ------------------------------------------------------------ Esther B. Garcia, and other similarly-situated individuals, Plaintiff, v. EPDUSA, Inc., Erick De La Torre and Yanelquis O. De La Torre, Defendants, Case No. 19-cv-02118, (M.D. Fla., August 22, 2019), seeks to recover regular wages, overtime compensation, retaliatory damages, liquidated damages, costs and reasonable attorney's fees under the provisions of the Fair Labor Standards Act. Defendants operate as La Giraldilla Restaurant, a Cuban cafeteria located at 1003 W Hillsborough Avenue, Tampa 33603 where Garcia worked as a tipped waitress. She claims to have worked 6 days with a minimum of 42 hours, or double shifts with more than 42 hours but was not paid for overtime hours. Garcia also claims that the Defendants took out a tip despite not having a valid tip pooling agreement. [BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com FACEBOOK INC: Bid to Amend Consolidated Adkins Complaint Partly OKd ------------------------------------------------------------------- In the case, STEPHEN ADKINS, an individual and Michigan resident, on behalf of himself and all others similarly situated, Plaintiff, v. FACEBOOK, INC., Defendant, Case No. C 18-05982 WHA, Consolidated with No. C 19-00117 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California granted in part and denied in part Adkins' motion for leave to amend the consolidated complaint. In September 2018, Facebook discovered it had been hacked. According to Facebook, the hackers stole information from approximately 29 million Facebook users worldwide, including 3.9 million users in the United States. Eleven putative class action lawsuits followed. In January 2019, an order consolidated the 11 lawsuits. In February 2019, five named Plaintiffs filed a consolidated complaint. Subsequently, all but one of the remaining named Plaintiffs from the 11 putative class actions voluntarily withdrew without prejudice. In March 2019, Facebook moved to dismiss the consolidated complaint, attacking the Plaintiffs' Article III standing as well as the sufficiency of their claims. A hearing on the motion to dismiss was held in May 2019. At the hearing, depositions of the named Plaintiffs were ordered. Supplemental briefing on the depositions followed. Abruptly, three of the five named Plaintiffs voluntarily withdrew without prejudice. In June 2019, an order granted Facebook's motion in part, dismissing one Plaintiff entirely for lack of standing and dismissing seven of 10 alleged claims. The order further consolidated two of the three surviving claims (negligence and negligence per se) into two separate theories of a single claim. The dismissed Plaintiff, William Bass, did not seek leave to amend his claims. Now, the sole remaining named Plaintiff, Adkins, seeks to amend six of the seven dismissed claims as well as one of his surviving claims. Facebook opposes. The primary issues remain twofold. First, whether or not the limitation-of-liability clause in Facebook's terms of service should be enforced. Second, whether or not an economic injury sufficient to bring a claim under Section 17200 exists. In addition, Plaintiff Adkins requests leave to amend his surviving claim of negligence to add newly alleged facts, a new theory of harm, and punitive damages. Facebook also opposes thw amendment. Judge Alsup denied leave to amend in part and granted leave to amend in part. First, he again refuses to invalidate the limitation-of-liability clause agreed to by the parties. He holds that there was no procedural unconscionability. Accordingly, leave to amend the four claims for breach of contract (claims 1-4) and the claim for breach of confidence (claim 7) is denied. Second, the Judge finds that the Plaintiff still has not alleged standing under Section 17200. The value of the Plaintiff's personal information has not diminished to the Plaintiff since the data breach. Leave to amend the claim under Section 17200 (Claim 6) is also denied. Third, because the negligence claim has already been deemed plausible, the amendments to the negligence claim, including the newly alleged theory of credit-monitoring harm and newly sought remedy of punitive damages, are permitted. All unopposed amendments and all amendments related to the negligence claim (claim 5) are permitted to proceed. All amendments related to the claims for breach of contract (claims 1-4), violation of Section 17200 (claim 6), and the claim for breach of confidence (claim 7) are not permitted. Those claims are dismissed without leave to amend. The Plaintiff must file an amended consolidated complaint consistent with the Order within seven calendar days. The answer is due within 14 calendar days thereafter. Rule 12 practice will now cease and yield to discovery. The deadline to move for class certification remains Auggust 29 at noon. The hearing scheduled for August 22 is vacated. A full-text copy of the Court's Aug. 9, 2019 Order is available at https://is.gd/wncIKx from Leagle.com. Stephen Adkins, Plaintiff, represented by Andrew N. Friedman -- afriedman@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC, pro hac vice, Ariana J. Tadler -- atadler@TadlerLaw.com -- Milberg Tadler Phillips Grossman LLP, John A. Yanchunis -- jyanchunis@ForThe People.com -- Morgan & Morgan Complex Litigation Group, Henry J. Kelston, Milberg Tadler Phillips Grossman LLP, Jeremy Keith Robinson, Casey Gerry Schenk Francavilla Blatt and Penfield, Karina Grace Puttieva, Cohen Milstein Sellers & Toll PLLC & Kate M. Baxter-Kauf, Lockridge Grindal Nauen P.L.L.P. Luis Licea, Consol Plaintiff, represented by Ebby Shahrokh Bakhtiar, Livingston Bakhtiar, Keith David Griffin, Girardi & Keese, Thomas V. Girardi, Girardi & Keese, Andrew N. Friedman, Cohen Milstein Sellers & Toll PLLC, Ariana J. Tadler, Milberg Tadler Phillips Grossman LLP & Jeremy Keith Robinson, Casey Gerry Schenk Francavilla Blatt and Penfield. Facebook, Inc., Defendant, represented by Elizabeth L. Deeley -- elizabeth.deeley@lw.com -- Latham & Watkins LLP, Alexander E. Reicher -- alexander.reicher@lw.com -- Latham & Watkins LLP, Andrew Brian Clubok, Latham & Watkins LLP, pro hac vice, Melanie Marilyn Blunschi, Latham & Watkins LLP, Michael H. Rubin, Latham & Watkins LLP, Serrin A. Turner -- serrin.turner@lw.com -- Latham & Watkins LLP, pro hac vice & Susan E. Engel -- susan.engel@lw.com -- Latham & Watkins LLP, pro hac vice. Scott Schinder, Interested Party, represented by Andrew N. Friedman, Cohen Milstein Sellers & Toll PLLC, Jeremy Keith Robinson, Casey Gerry Schenk Francavilla Blatt and Penfield & Lesley Elizabeth Weaver, Bleichmar Fonti & Auld LLP. FEDEX CORP: Continues to Defend Securities Class Suits in New York ------------------------------------------------------------------ FedEx Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on September 17, 2019, for the quarterly period ended August 3, 2019, that the company continues to defend two putative class action securities lawsuits pending in the U.S. District Court for the Southern District of New York. On June 26, 2019 and July 2, 2019, FedEx and certain present and former officers were named as defendants in two putative class action securities lawsuits filed in the U.S. District Court for the Southern District of New York. The complaints allege violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder relating to alleged misstatements or omissions in FedEx's public filings with the Securities and Exchange Commission (SEC) and other public statements during the period from September 19, 2017 to December 18, 2018. FedEx said, "We are not currently able to estimate the probability of loss or the amount or range of potential loss, if any, at this stage of the litigation." No further updates were provided in the Company's SEC report. FedEx Corporation provides transportation, e-commerce, and business services worldwide. FedEx Corporation was founded in 1971 and is headquartered in Memphis, Tennessee. FIELDWORK CHICAGO: Has Made Unsolicited Calls, Dixie Alleges ------------------------------------------------------------ DIXIE PLUMBING SPECIALTIES, INC., individually and on behalf of all others similarly situated, Plaintiff v. FIELDWORK CHICAGO-SCHAUMBURG, INC.; FIELDWORK CHICAGO, INC.; FIELDWORK CHICAGO DOWNTOWN, INC.; and FIELDWORK, INC., Defendants, Case No. 1:19-cv-05821 (N.D. Ill., Aug. 29, 2019) seeks to stop the Defendants' practice of making unsolicited calls. Fieldwork Chicago-Schaumburg, Inc. is engaged in the business of providing market research. [BN] The Plaintiff is represented by: Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: rkelly@andersonwanca.com FINANCIAL MANAGEMENT: Haye Suit Moved to District of Maryland ------------------------------------------------------------- The case is captioned as Jhordan Haye, Individually, and on behalf of all others similarly situated, Plaintiff, vs. Financial Management Solutions, LLC; Monica Guilarte; and Russell Thomas, the Defendant, Case No. C-10-CV-19-000526, was removed from the Circuit Court for Frederick County, to the U.S. District Court for District of Maryland (Baltimore) on Sept. 4, 2019. The District of Maryland Court Clerk assigned Case No. 1:19-cv-02557-ELH to the proceeding. The suit demands $75,000 in damages for alleged violation of the Fair Debt Collection Practices Act. The case is assigned to the Hon. Judge Ellen L. Hollander. FMS is a professional debt collection agency.[BN] The Plaintiff is represented by: Emanwel Josef Turnbull, Esq. THE HOLLAND LAW FIRM PC 914 Bay Ridge Rd, Suite 230 Annapolis, MD 21401 Telephone: (410) 280-6133 Facsimile: (410) 280-8650 E-mail: eturnbull@hollandlawfirm.com - and - Scott C. Borison, Esq. LEGG LAW FIRM LLP 1900 S. Norfolk St., Suite 350 San Mateo, CA 94403 Telephone: (301) 620-1016 Facsimile: (301) 620-1018 E-mail: usdc@legglaw.com The Defendants are represented by: Alvin I. Frederick, Esq. ECCLESTON AND WOLF PC Baltimore Washington Law Center 7240 Parkway Dr Fourth Fl Hanover, MD 21076 Telephone: (410) 752-7474 Facsimile: (410) 752-0611 E-mail: frederick@ewmd.com - and - M. Olivia Haarz, Esq. ECCLESTON & WOLF, PC 7240 Parkway Drive, Fourth Fl. Hanover, MD 21076 Telephone: (410) 752-7474 E-mail: haarz@ewmd.com - and - Ronald S. Canter, Esq. THE LAW OFFICES OF RONALD S CANTER LLC 200A Monroe St Ste 104 Rockville, MD 20850 Telephone: (301) 424-7490 Facsimile: (301) 424-7470 E-mail: rcanter@roncanterllc.com FIRST TECHNOLOGY: N.C. App. Affirms Counterclaims Dismissal ------------------------------------------------------------ The Court of Appeals of North Carolina issued an Opinion affirming the District Court’s judgment dismissing the Defendant’s Counterclaims in the captioned FIRST TECHNOLOGY FEDERAL CREDIT UNION, Plaintiff/Counterclaim Defendant, v. RONNIE LEE SANDERS, Defendant/Counterclaim Plaintiff. No. COA19-187. (N.C. App.) Defendant Ronnie Sanders appeals from the trial court's order dismissing his counterclaims for violations of the notice provisions under Article 9 of the Uniform Commercial Code (UCC) against Plaintiff First Technology Federal Credit Union (Credit Union). Defendant and seller entered into a Retail Installment Sale Contract for the purchase and finance of a vehicle, which the seller assigned to the Credit Union shortly after execution. Defendant then returned the vehicle to the seller upon discovering that the seller had made various misrepresentations concerning the vehicle's features and condition. The Credit Union sold the vehicle for $11,829.41 less than the amount owed under the installment agreement, and commenced the instant action for recovery of the deficiency. Defendant filed an answer asserting various affirmative defenses, including (1) that he was fraudulently induced into signing the installment agreement and, thus, was not liable for any sum owing thereunder, and (2) that the Credit Union was not entitled to recover the deficiency, in that its Notice of Intent to Sell Property was insufficient under N.C. Gen. Stat. Section 25-9-614. Defendant also filed a class action counterclaim against the Credit Union, in which he challenged the Credit Union's unlawful and harassing practices related to its use of a standardized post-repossession notice, which fails to contain the required information under N.C. Gen. Stat. Section 25-9-614, prior to selling vehicles repossessed from consumers. The Credit Union filed a motion to dismiss Defendant's counterclaims, which came on for hearing before the Honorable Jonathan Kreider in Guilford County District Court. At the hearing, the parties stipulated that the installment agreement was not a valid and binding contract. On the basis that there existed no valid and binding contract between the parties, the trial court concluded that the Credit Union's complaint for deficiency judgment failed as a matter of law. The trial court also concluded that Defendant's counterclaims failed as a matter of law, in that, absent a valid and binding security agreement, the Credit Union was not a secured party subject to enforcement of the UCC's notice provisions. The trial court dismissed with prejudice all claims between the parties. Defendant timely appealed from the trial court's order dismissing his counterclaims. On appeal, Defendant argues: (1) that the trial court abused its discretion in declining to continue the hearing in order for Defendant to research and brief the issue of whether the Credit Union had a duty to comply with Article 9 of the UCC in light of the installment agreement having been canceled. (2) that the trial court erred in dismissing Defendant's counterclaims, in that the duty to comply with Article 9's notice provisions is not dependent upon the existence of a valid and binding contract and (3) that the trial court erred in holding that Defendant failed as a class representative in the absence of a pending class certification motion. The Uniform Commercial Code is codified in Chapter 25 of North Carolina's General Statutes. Article 9, Part 6, Subpart 1 governs the default and enforcement of security interests. In the event that a debtor defaults on his obligations under a security agreement, the secured party is permitted to take possession of the collateral, N.C. Gen. Stat. Section 25-9-609(a)(1) (2017), and thereafter, to sell or otherwise dispose of the collateral in order to satisfy the outstanding debt owed under the terms of the security agreement. Before disposing of collateral pursuant to N.C. Gen. Stat. Section 25-9-610, the secured party must send to the debtor a reasonable authenticated notification of disposition. In the instant case, the Credit Union's notice of intent sought to notify Defendant of his liability for any deficiency following the sale by including a verbatim recitation of the above form language, without electing between the bracketed alternative language, as follows: The money that we get from the sale, after paying our costs, will reduce the amount you owe. If we get less than you owe, you will or will not, as applicable, still owe us the difference. If we get more than you owe, you will get the extra money, unless we must pay it to someone else. Defendant asserted as an affirmative defense to the Credit Union's complaint for deficiency judgment that this language failed to provide Defendant with sufficient notice that the Credit Union would seek to hold him liable for a deficiency. Defendant also asserted the same as the basis for a class action counterclaim on behalf of the other individuals to whom the Credit Union had sent the inadequate notice, pursuant to N.C. Gen. Stat. Section 25-9-625. The trial court, however, dismissed Defendant's counterclaims, concluding that the Credit Union was not a secured party subject to enforcement of the UCC's notice provisions. The Court agrees. The notice requirements under Article 9 apply only to secured parties. A secured party is defined as a person in whose favor a security interest is created or provided for under a security agreement, whether or not any obligation to be secured is outstanding. A security interest' means an interest in personal property which secures payment or performance of an obligation. Thus, a plain reading of the applicable definitions quite plainly reveals that there can be no secured party in the absence of an enforceable security interest, and where the parties' security agreement is canceled, so too is the security interest that was created thereunder. Accordingly, in that the parties conceded that the only security agreement between them was no longer valid and enforceable, the trial court correctly concluded that the Credit Union was not a secured party subject to liability for its failure to comply with the notice provisions under Article 9. The Court therefore affirms the trial court's order dismissing Defendant's counterclaims. Because we affirm the trial court's dismissal of Defendant's counterclaims, the Court do not address Defendant's remaining argument that this Court should vacate the district court's holding and remand for further proceedings including, in due course, a motion for class certification by Defendant. The trial court's order dismissing Defendant's counterclaims is affirmed. AFFIRMED. A full-text copy of the N.C. App.'s September 3, 2019 Opinion is available at https://tinyurl.com/y3xqadb6 from Leagle.com. McAngus, Goudelock & Courie, PLLC, by Jeffrey B. Kuykendal - jeffrey.kuykendal@mgclaw.com- for plaintiff-appellee. Law Office of Jonathan R. Miller, PLLC , d/b/a Salem Community Law Office, by Jonathan R. Miller , 186 Joralemon St, Ste 1202, Brooklyn, NY 11201, for defendant-appellant. FITNESS EQUIPMENT: Bechtel Sues over Mislabeled Treadmill Product ----------------------------------------------------------------- LAURA BECHTEL, individually and on behalf of all others similarly situated, Plaintiff v. FITNESS EQUIPMENT SERVICES, LLC, dba SOLE FITNESS, Defendant, Case No. 1:19-cv-00726-MRB (S.D. Ohio, Aug. 30, 2019) alleges that the Defendant misrepresented the horsepower capabilities of its treadmill product. The Plaintiff alleges in the complaint that the Defendant misleads consumers into believing that the treadmills sold by the Defendant can generate and maintain the represented continuous horsepower, even though in fact the horsepower misrepresentations can never be obtained during actual household use by the Plaintiff and consumer Class members. As a result, consumers have overpaid for the treadmills instead of buying competitor manufacturers' treadmills or less expensive models. Fitness Equipment Services LLC was founded in 2001. The company's line of business includes the manufacturing of sporting and athletic goods. [BN] The Plaintiff is represented by: Terence R. Coates, Esq. W.B. Markovits, Esq. Paul M. De Marco, Esq. Justin C. Walker, Esq, MARKOVITS STOCK & DEMARCO, LLC 3825 Edwards Road, Suite 650 Cincinnati, OH 45209 Telephone: (513) 651-3700 Facsimile: (513) 665-0219s E-mail: bmarkovits@msdlegal.com pdemarco@msdlegal.com tcoates@msdlegal.com jwalker@msdlegal.com FORD MOTOR: Appeals Court Orders Review of Class-Action Settlement ------------------------------------------------------------------ Phoebe Wall Howard, writing for The Neighbor, reports that the U.S 9th Circuit Court of Appeals on Sept. 13, 2019, declined to approve a class-action settlement involving Ford Motor Co. and nearly 2 million owners and former owners of Focus and Fiesta vehicles with defective dual-clutch transmissions known as DPS6. The judges vacated "final settlement approval" after Public Citizen, a nonprofit consumer advocacy group, challenged how much money would be awarded to consumers and the fact that the vast majority of the car owners would have received nothing. The entry-level Fiesta and Focus vehicles, built over the past decade, have a history of costly repair for failing clutches and other problems. A Detroit Free Press "Out of Gear" investigation published in July revealed for the first time internal company documents and emails showing that the Dearborn automaker knew the transmissions were defective from the start and continued building and selling them anyway. The court decision means the terms of the settlement must now go back to U.S. district court for "more searching inquiry." The 2-1 decision questioned the district court's scrutiny of the class-action attorneys and the terms of the settlement, suggesting that the lawyers didn't adequately represent consumers but rather pushed through the settlement based on their own financial interests. The agreement called for them to get $8,856,000 in fees. Ryan H. Wu, lead class counsel at Capstone Law, in April urged the Court of Appeals to keep the settlement. He declined to comment September 13. Ford spokesman T.R. Reid said, "The proposed settlement was not changed by the opinion. As we have all along, we think the proposed settlement is fair. We look forward to the court's final action on the settlement." Ford had agreed not to object to the plaintiffs attorneys' fees, the decision noted. The Ninth Circuit "has warned district courts to be alert for certain 'subtle signs that class counsel have allowed pursuit of their own self interests and that of certain class members to infect the negotiations.' At least two of those signs are present in this settlement, which includes a fee award disproportionate to the class recovery and a 'clear sailing' provision whereby (Ford) agreed not to object to the fee award sought by class counsel." The judges questioned whether the court adequately scrutinized the calculation of the settlement amount. "The court adopted the estimate of class counsel's expert that the cash payments were worth around $35 million." But that calculation was based on total payments to every eligible vehicle owner, while the actual claims rate was expected to be much lower, resulting in an even smaller payment by Ford, the judges noted. The original lawsuit alleges Ford lied to unload cars with faulty transmissions on unsuspecting buyers and then blamed the drivers for problems they experienced. Ford customers claim in legal filings their 2012-16 Focus and 2011-16 Fiesta sedans were built with dual-clutch transmissions prone to "shuddering, slipping, bucking, jerking, hesitation while changing gears, premature internal wear, delays in downshifting and, in some cases, sudden or delayed acceleration." Ford in April warned its shareholders of legal exposure related to the DPS6 in a Securities and Exchange Commission filing under the subhead, "Consumer Matters." "We are currently a defendant in a significant number of litigation matters relating to the performance of vehicles equipped with DPS6 transmissions," said the last item on a 70-page document dated April 25 and signed by Cathy O'Callaghan, Ford vice president and controller. "We are a defendant in numerous actions in state and federal courts alleging damages based on state and federal consumer protection laws and breach of warranty obligations. Remedies under these statutes may include repurchase, civil penalties, and plaintiff's attorney fees. In some cases, plaintiffs also include an allegation of fraud." Wu argued to the court in April that if the settlement was thrown out, Ford could face a potential $4 billion liability. If the settlement ultimately is rejected, it may create an opportunity for consumers to file individual claims against Ford that were restricted until now. Under the terms of the class-action settlement, individuals were required to opt out of the deal or be subject to its terms with no further recourse. Michael Kirkpatrick, who argued in court against both Ford and the class-action firm on behalf of Public Citizen, said September 13, "We are confident that, once the district judge takes a closer look and considers further the evidence about the value of the claims that would be released by the settlement, the district court will agree ... that the settlement is not fair, reasonable and adequate, and will not grant final approval." It could take up to a year or more for this issue to be resolved. Ford has tried, repeatedly, to repair the vehicles, and continues those efforts. In 2014, it extended the warranties on transmission-related parts to seven years and 100,000 miles on Focuses and Fiestas built before mid-2013. A month after Free Press publication of "Out of Gear," the automaker extended the warranty for 2014-16 Focuses and 2014-15 Fiestas built after that. Federal safety regulators have reviewed the transmission troubles twice - once in 2014 and again this summer, and have found no "unreasonable" safety risk, the legal standard that triggers a recall. The agency has received a minimum of 4,377 consumer complaints about the cars that include reports of 50 injuries, a Free Press analysis found. [GN] FRANKLIN COLLECTION: Bailey Sues over Debt Collection Practices --------------------------------------------------------------- MICHAEL BAILEY, individually and on behalf of all others similarly situated, Plaintiff v. FRANKLIN COLLECTION SERVICE, INC., Defendant, Case No. 0:19-cv-62189 (S.D. Fla., Aug. 31, 2019) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The Law Office of Steven B. Katz, P.A. is a law firm engaged as a debt collection agency. [BN] The Plaintiff is represented by: Jibrael S. Hindi, Esq. Thomas J. Patti, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th Street, Suite 1744 Fort Lauderdale, FL 33301 Tel: (954) 907-1136 Fax: (855) 529-9540 E-mail: jibrael@jibraellaw.com tom@jibraellaw.com FREE FLY: Galitz Hits Illegal Telemarketing SMS Ads --------------------------------------------------- Zoe Galitz, individually and on behalf of all others similarly situated, Plaintiff, v. Free Fly, Inc., Defendant, Case No. 19-cv-23517 (S.D. Fla., August 22, 2019), seeks statutory damages, punitive damages, costs and attorney fees for violation of the Telephone Consumer Protection Act. Free Fly, Inc. operates as EXIT Realty Florida, a full-service real estate franchisor based in Canada. To promote its services, it engages in unsolicited SMS ads sent en masse via an auto dialer. Galitz did not give his express written consent to be contacted in such manner, notes the complaint. [BN] The Plaintiff is represented by: Scott Edelsberg, Esq. Jordan D. Utanski, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd #607 Aventura, FL 33180 Telephone: (305) 975-3320 Email: scott@edelsberglaw.com utanski@edelsberglaw.com - and - Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 400 Miami, FL 33132 Telephone: 305-479-2299 Email: ashamis@shamisgentile.com gberg@shamisgentile.com FREEDOM MORTGAGE: 4th Cir. Affirms UDTPA Dismissal -------------------------------------------------- The United States Court of Appeals, Fourth Circuit, issued an Opinion affirming the District Court's judgment granting Defendant’s Motion to Dismiss in the case captioned RICARDO FLOREZ; ELIZABETH PAGANO, Plaintiffs-Appellants, v. FREEDOM MORTGAGE CORPORATION, Defendant-Appellee. No. 18-2085. (4th Cir.). In this breach of contract action arising out of a mortgage agreement, Ricardo Florez and Elizabeth Pagano, alleged that Freedom Mortgage Corporation violated the terms of their note and deed of trust by holding certain mortgage payments in an Unapplied Funds account (UFA), rather than immediately applying these payments to the note's remaining balance. The district court granted Freedom's Fed. R. Civ. P. 12(b)(6) motion to dismiss, finding that Freedom fully complied with the terms of the agreement. On appeal, Plaintiffs argue that the court erroneously interpreted the agreement, overlooked one of their central arguments, and improperly concluded that their claim under the Unfair and Deceptive Trade Practices Act (UDTPA), necessarily depended on a showing that Freedom breached the contract. The Court reviews de novo the grant of a motion to dismiss for failure to state a claim under Rule 12(b)(6). To state a breach of contract claim under North Carolina law, a plaintiff must allege (1) existence of a valid contract and (2) breach of the terms of the contract. And to state a UDTPA violation, a plaintiff must allege that (1) the defendants committed an unfair or deceptive act or practice, or an unfair method of competition (2) in or affecting commerce (3) which proximately caused actual injury to the plaintiff or to the plaintiff`s business. Plaintiffs' claim fails under a plain reading of the deed of trust, which explicitly permitted Freedom to hold partial payments in the UFA until Plaintiffs tendered enough money to constitute a full periodic payment. As its name implies, a Half Payment was not a full periodic payment, thus, Freedom was entitled to wait until receipt of a second Half Payment before applying both to Plaintiffs' outstanding balance. Undeterred, Plaintiffs insist that, because the biweekly payment plan restricted eligibility to borrowers who were paid ahead by one month, each of their Half Payments was a prepayment, and, under the terms of the agreement, Freedom was required to apply prepayments immediately. However, by relying on the colloquial meaning of prepayment, Plaintiffs ignore the clear, unambiguous definition supplied by the note, which placed multiple conditions on which payments constituted Prepayments. Because the Half Payments did not satisfy each of these requirements, we agree with the district court's conclusion that none of the contested payments was a Prepayment under the terms of the parties' agreement. The Court also agree with the district court that the 13th and 26th Half Payments were Prepayments, but, as the district court stated, were directly applied to principal without delay. The Court affirms the judgment of the district court. AFFIRMED. A full-text copy of the Fourth Circuit's September 3, 2019 Opinion is available at https://tinyurl.com/yyj5vazh from Leagle.com. Aaron C. Hemmings , HEMMINGS & STEVENS, P.L.L.C., 5540 McNeely Drive, #202, Raleigh, NC, 27612; Kenneth Jay Grunfeld , GOLOMB & HONIK, P.C., 1515 Market St., Ste 1100, Philadelphia, PA 19102, Philadelphia, Pennsylvania; Joseph H. Aughtman – jay@aughtmanlaw.com - AUGHTMAN LAW FIRM, LLC, Montgomery, Alabama, for Appellants. David F. Abernethy - david.abernethy dbr.com - Katie B. Garayoa -katie.garayoa@dbr.com - DRINKER, BIDDLE & REATH, Philadelphia, Pennsylvania; Charles E. Raynal - charlesraynal@parkerpoe.com - Scott E. Bayzle - scottbayzle@parkerpoe.com - PARKER, POE, ADAMS & BERNSTEIN, LLP, Raleigh, North Carolina, for Appellee. FRIENDS HEALTH: Violates FLSA Overtime Provisions, Says Kim Suit ---------------------------------------------------------------- Jong Hoon Kim, Plaintiff, v. Friends Health Care Team, Inc. doing business as and also known as Friends Health Care or Friends Health, and Dae J. LEE, Defendants, Case No. 1:19-cv-01187-AJT-TCB (E.D. Va., Sept. 13, 2019) alleges that Defendants intentionally and willfully violated the overtime provisions of the Fair Labor Standards Act. Plaintiff is filing this FLSA claim as an individual action for himself and other non-exempt similarly situated employees. Plaintiff says he regularly worked more than 40 hours a week while employed by Defendants but was never paid the proper amount of overtime wages. The Defendants manipulated the pay stubs to hide the true regular rate and hours worked. Furthermore, Defendants told Plaintiff that they would reimburse Plaintiff if he used his car to pick up and return the adults to and from their residences. Despite their promises, they did not fully reimburse Plaintiff for mileages and other expenses incurred by Plaintiff for the benefit of Defendants. This unpaid reimbursement cut into Plaintiff's wage, says the complaint. Plaintiff Jong Hoon Kim worked at Friends Health from October 20, 2018, until April 2, 2019 as helper (called coordinator). Friends Health was in the business of adult day care center services and adult home care services.[BN] The Plaintiff is represented by: Michael Hyunkweon Ryu, Esq. Ryu & Ryu, PLC 301 Maple Ave West, Suite 620 Vienna VA 22180 GANNETT CO: Scarantino Challenges Sale to New Media --------------------------------------------------- RICHARD SCARANTINO, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. GANNETT CO., INC., JOHN JEFFRY LOUIS, PAUL BASCOBERT, JOHN E. CODY, STEPHEN W. COLL, DONALD FELSINGER, LILA IBRAHIM, LAWRENCE S. KRAMER, DEBRA A. SANDLER, CHLOE SLADDEN, NEW MEDIA INVESTMENT GROUP INC., ARCTIC HOLDINGS LLC, and ARCTIC ACQUISITION CORP., Defendants, Case No. 1:19-cv-01740-UNA (D. Del., Sept. 16, 2019) is an action stemming from a proposed transaction announced on August 5, 2019, pursuant to which Gannett Co., Inc. will be acquired by New Media Investment Group Inc., Arctic Holdings LLC, and Arctic Acquisition Corp. On August 5, 2019, Gannett's Board of Directors caused the Company to enter into an agreement and plan of merger with New Media. Pursuant to the terms of the Merger Agreement, Gannett's stockholders will receive $6.25 in cash and 0.5427 of a share of New Media stock for each share of Gannett common stock they own. On August 29, 2019, defendants filed a Form S-4 Registration Statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Plaintiff alleges that the Registration Statement omits material information with respect to the Proposed Transaction, which renders the Registration Statement false and misleading. Accordingly, the Plaintiff alleges that the Defendants violated Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 in connection with the Registration Statement. Plaintiff is the owner of Gannett common stock. Gannett is a digitally focused media and marketing solutions company.[BN] The Plaintiff is represented by: Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Phone: (302) 295-5310 Facsimile: (302) 654-7530 Email: bdl@rl-legal.com gms@rl-legal.com - and - RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Phone: (484) 324-6800 Facsimile: (484) 631-1305 GAP INC: Has $2.28MM Settlement of Class Suit Over Pricing ---------------------------------------------------------- ARENT FOX wrote in JDSupra.com that The Gap, Inc. recently settled a class action lawsuit alleging that the retailer employed a misleading pricing scheme in The Gap and Banana Republic outlets and factory stores. The plaintiffs claimed that the company, which owns both The Gap and Banana Republic brands, used deceptive reference prices to produce "phantom" sales. The settlement, worth up to $2.28 million in total, resolved four putative class actions pending in state and federal court in California and New Jersey. This development is yet another cautionary tale for retailers to exercise caution when advertising price reductions, as the plaintiffs' bar continues to closely monitor pricing practices for potential class action opportunities. The Details The four putative class actions were filed against The Gap and several subsidiaries between 2016 and 2018. The complaints alleged that The Gap adopted a system of reference prices in The Gap and Banana Republic factory stores and outlets that created the misleading impression that certain items were marked down. Specifically, the plaintiffs alleged that the retailer listed "base" prices on price tags that were designed to indicate the item's regular, non-discounted price. According to the plaintiffs, though, these items were either never sold at the base price or were only sold at the base price for a handful of days, making the advertised savings illusory. The plaintiffs claimed that the company posted "50% off" signs in stores and presented customers with their "savings" on receipts, both of which were premised on the same base prices. The Gap sought to dismiss the cases, but soon afterwards the parties began settlement talks. This summer, a California Superior Court judge presiding over one of the four cases approved a settlement agreement that would resolve all four of the pending class actions. Under the settlement terms, The Gap, while admitting no wrongdoing, agreed to offer all class members up to two $6.00 vouchers to be used at any Gap or Banana Republic factory store or outlet. The settlement is worth up to $2.28 million. Practical Advice This case is another reminder that retailers must be careful when advertising discounts on items, and especially when doing so through references to "former" or "base" prices. This is an acceptable practice when done accurately, but retailers should exercise caution with an active plaintiffs' bar monitoring pricing practices for possible discrepancies. Under the Federal Trade Commission's Guides Against Deceptive Pricing, a former price referenced to indicate a price reduction is acceptable if the referenced price is an "actual, bona fide price at which the article was offered to the public on a regular basis for a reasonably substantial period of time," and in the "recent, regular course of business." 16 CFR Section 223.1. Importantly, items cannot be temporarily sold at a higher price just so that they can then be marked down. While state laws largely echo the FTC's requirements, some prescribe specific rules in terms of how recently and/or long an item must have been offered at the former price. These considerations are especially important for retailers with factory stores and outlets. While items offered at such locations were traditionally overstock or out of season items originally produced for the brand's main stores, more and more companies are manufacturing items exclusively for sale at factory stores and outlets. Retailers should be careful not to create the impression that items were previously sold at the brand's main stores if they were, in fact, manufactured specifically for the factory store or outlet. Placing a visible notice in stores and online can be an effective way to notify shoppers that items were manufactured directly for the factory store or outlet. [GN] GENERAL MOTORS: Uyenoyama Says Car Entertainment Hub Defective -------------------------------------------------------------- Cindy Uyenoyama; Vanessa Rodriguez; Benito Guzman; William Braden; Norman Ganon; Crystal Robinson; Maxine Glenn; Mariano Lorenzo Macaisa; Gini Michelle Cox; Shelia Cauthen; April Bradley; Richard Schellhammer; Shon Reeves; Earl Kladke; David Conroe; and John Toda, on behalf of themselves and a class of all others similarly situated, the Plaintiffs, vs. General Motors, LLC, the Defendant, Case No. 2:19-cv-07668-SVW-MRW (C.D. Cal., Sept. 4, 2019), seeks equitable relief and damages resulting from Defendant's defective "Cadillac User Experience". Cadillac is an iconic American automobile brand and a division of Defendant GM. GM not only touts Cadillac as "a leading luxury auto brand," but also claims it is an innovative one. In an apparent attempt to live up to Cadillac's self-proclaimed mantle of innovation, GM developed the "Cadillac User Experience" or "CUE," which GM described as "a very elegant in-vehicle hub of all the information and entertainment in your life." GM boasted of several industry firsts with the CUE, including, proximity sensing, haptic feedback, multi-touch hand gestures, natural speech recognition and a Linux operating system. What GM failed to disclose was the CUE possesses an innate and serious defect that causes it to spontaneously delaminate or "spider-web," rendering its self-proclaimed state-of-the-art technology useless. When this happens, the unit ceases to function properly. Even more concerning, the Defect poses a serious safety risk to drivers, who can become dangerously distracted. GM has known about the Defect for years. But instead of fixing it, GM continued to sell new Cadillac vehicles with the defect to customers without disclosing it and has forced its customers to spend upwards of $1,500.00 -- if not more -- to replace the CUE once the defect fully manifests. Adding insult to injury, when a customer does bring in a vehicle for replacement of the CUE, GM replaces the broken CUE with the same defectively designed and manufactured product. Consequently, the defective replacement CUE will eventually suffer the same delamination and spider-webbing issues, the lawsuit says.[BN] Attorneys for the Plaintiffs are: David S. Casey, Jr., Esq. Gayle M. Blatt, Esq. Jeremy Robinson, Esq. P. Camille Guerra, Esq. Seth Barron, Esq. David S. Casey III, Esq. CASEY GERRY SCHENK FRANCAVILLA BLATT & PENFIELD, LLP 110 Laurel Street San Diego, CA 92101 Telephone: (619) 238-1811 Facsimile: (619) 544-9232 E-mail: dcasey@cglaw.com gmb@cglaw.com jrobinson@cglaw.com camille@cglaw.com sbarron@cglaw.com caseyd@cglaw.com - and - Christopher D. Moon, Esq. Kevin O. Moon, Esq. MOON LAW APC 600 West Broadway, Suite 700 San Diego, CA 92101 Telephone: (619) 915-9432 Facsimile: (650) 542-8432 E-mail: chris@moonlawapc.com kevin@moonlawapc.com GENESCO INC: Settlement Reached in Chen & Salas Suit ---------------------------------------------------- Genesco Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on September 12, 2019, for the quarterly period ended August 3, 2019, that the Company has reached an agreement in principle in the "Chen and Salas Action", and "Massachusetts lawsuits". On May 19, 2017, two former employees of the Company's former Hat World subsidiary filed a putative class and collective action, Chen and Salas v. Genesco Inc., et al., in the U.S. District Court for the Northern District of Illinois alleging violations of the Fair Labor and Standards Act (FLSA) and certain Illinois and New York wages and hours laws, including, among others, failure to pay overtime to store managers, and also seeking back pay, damages, statutory penalties, and declaratory and injunctive relief. On March 8, 2018, the court granted the Company's motion to transfer venue to the U.S. District Court for the Southern District of Indiana. On March 9, 2018, a former employee of the Company's former Hat World subsidiary filed a putative class action in the Superior Court of the Commonwealth of Massachusetts claiming violations of the Massachusetts Overtime Law, M.G.L.C. 151 Section 1A, by failing to pay overtime to employees classified as store managers, and seeking restitution, an incentive award, treble damages, interest, attorneys' fees and costs. The Company has reached an agreement in principle to settle the Chen and Salas and Massachusetts matters for payment of attorneys' fees and administrative costs totaling $0.4 million plus total payments to members of the plaintiff class who opt to participate in the settlement of up to $0.8 million. The proposed settlement is subject to approval by the court. Genesco said, "The Company does not expect that the proposed settlement will have a material adverse effect on its financial condition or results of operations." No further updates were provided in the Company's SEC report. Genesco Inc. sell shoes and hats. It operates Journeys, Journeys Kidz, and Shi by Journeys stores that offer footwear for young men, women, and children. It also operates Underground Station, Jarman, Hat World, Lids, Hat Shack, Hat Zone, Head Quarters, Cap Connection, Lids Kids, and Johnston & Murphy. The company was founded in 1925 and is based in Nashville. GLASS MOUNTAIN: Has Made Unsolicited Calls, Dolemba Suit Alleges ---------------------------------------------------------------- SCOTT DOLEMBA, individually and on behalf of all others similarly situated, Plaintiff v. GLASS MOUNTAIN CAPITAL, LLC, Defendants, Case No. 1:19-cv-05811 (N.D. Ill., Aug. 29, 2019) seeks to stop the Defendants' practice of making unsolicited calls. Glass Mountain Capital LLC was founded in 2005. The company's line of business includes collection and adjustment services on claims and other insurance related issues. [BN] The Plaintiff is represented by: Daniel A. Edelman, Esq. EDELMAN COMBS LATTURNER & GOODWIN, LLC 20 S. Clark Street, Suite 1500 Chicago, IL 60603 Telephone: (312) 739-4200 Facsimile: (312) 419-0379 GOLDEN 1: Faces Burgardt Suit in California Superior Court ---------------------------------------------------------- A class action lawsuit has been filed against The Golden 1 Credit Union. The case is captioned as Dwaine Burgardt, on behalf of all others similarly situated, the Plaintiff, vs. The Golden 1 Credit Union and Does 1-100, the Defendants, Case No. 34-2019-00263962-CU-BC-GDS (Cal. Super., Sept. 3). The suit alleges breach of contract/warranty. The Golden 1 Credit Union is a credit union headquartered in Sacramento, California. There are currently 80 branches located throughout the State of California. Golden 1 currently serves 38 of the 58 counties in California.[BN] Attorneys for the Plaintiff are: Roy Karngwon Suh, Esq. THE KICK LAW FIRM, APC 815 Moraga Dr Los Angeles, CA 90049-1633 Telephone: (310) 395-2988 Facsimile: (310) 929-2046 GREENLANE HOLDINGS: Bragar Eagel Files Class Action Lawsuit ----------------------------------------------------------- Bragar Eagel & Squire, P.C. announces that a class action lawsuit has been filed in the United States District Court for the Southern District of Florida on behalf of all investors that purchased Greenlane Holdings, Inc. securities between April 15, 2019 and September 11,2019 ("the "Class Period"). Investors have until November 12, 2019 to apply to the Court to be appointed as lead plaintiff in the lawsuit. In April 2019, the Greenlane held its initial public offering ("IPO") in which it sold more than 6 million common shares at $17.00 per share. On June 18, 2019, the San Francisco Board of Supervisors unanimously approved the ban on the sale and distribution of e-cigarette products within the city. It also endorsed a ban on the manufacturing of e-cigarette products on city property. On this news, the Company's share price fell $2.27, or over 17%, to close at $11 per share on June 19, 2019, on unusually heavy trading volume. Since the IPO, shares of Greenlane has traded as low as $5.39, a nearly 68% decline from the $17 per share IPO price. The complaint, filed September 11,2019, alleges that the IPO registration statement was materially false and misleading and omitted to state: (1) that the City of San Francisco had introduced a major initiative to ban the sale of e-cigarette products across three major cities and prohibit the manufacture of products at the headquarters of Greenlane's key partner, JUUL Labs; (2) that, if approved, the initiative would materially and adversely impact the company's financial results and prospects; and (3) 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 Greenlane securities during the Class Period, are a long-term stockholder, have information, would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Brandon Walker or Melissa Fortunato by email at investigations@bespc.com, or telephone at (212) 355-4648, or by filling out this contact form. There is no cost or obligation to you. Bragar Eagel & Squire, P.C. is a New York-based law firm concentrating in commercial and securities litigation. For additional information concerning the Greenlane lawsuit, please go to https://bespc.com/gnln. For additional information about Bragar Eagel & Squire, P.C. please go to www.bespc.com. Contact: Brandon Walker, Esq. Melissa Fortunato, Esq. Bragar Eagel & Squire, P.C. Tel: (212) 355-4648 Website: www.bespc.com E-mail: investigations@bespc.com walker@bespc.com fortunato@bespc.com [GN] GREENLANE HOLDINGS: Brodsky & Smith Probes Securities Claims ------------------------------------------------------------ Law office of Brodsky & Smith, LLC is investigating claims against Greenlane Holdings, Inc. (GNLN) for possible breaches of Federal Securities law. In April 2019, Greenlane held its initial public offering ("IPO") in which it sold more than 6 million common shares at $17.00 per share. Shortly thereafter, on June 18, 2019, the San Francisco Board of Supervisors unanimously approved the ban on the sale and distribution of e-cigarette products within the city. It also endorsed a ban on the manufacturing of e-cigarette products on city property. On the release of this news, Greenlane's share price fell $2.27, or over 17%, closing at $11 per share on June 19, 2019. Since the April 2019 IPO, shares of Greenlane have traded as low as $5.39, a nearly 68% decline from the $17 per share IPO price. The complaint alleges that throughout the Class Period, defendants made false and/or misleading statements and/or failed to disclose that: (1) the City of San Francisco had introduced a major initiative to ban the sale of e-cigarette products across three major cities and prohibit the manufacture of products at the headquarters of Greenlane's key partner, JUUL Labs; (2) if approved, the initiative would materially and adversely impact the Company's financial results and prospects; and (3) as a result of the foregoing, defendants' positive statements about Greenlane's business, operations, and prospects, were materially misleading and/or lacked a reasonable basis. When the true details entered the market, the lawsuit claims that investors suffered damage. If you purchased shares of Greenlane pursuant or traceable to Greenlane's April 2019 IPO and wish to discuss the legal ramifications of the investigation, or have any questions, you may e-mail or call the law office of Brodsky & Smith, LLC who will, without obligation or cost to you, attempt to answer your questions. The deadline for filing is November 12, 2019. You may contact Marc Ackerman, Esquire or Jordan Schatz, Esquire at Brodsky & Smith, LLC, Two Bala Plaza, Suite 510, Bala Cynwyd, PA 19004, or by calling toll free 877-534-2590. For additional information, go to http://www.brodskysmith.com/cases/greenlane-holdings-inc-gnln/. Brodsky & Smith, LLC is a litigation law firm with extensive expertise representing shareholders throughout the nation in securities and class action lawsuits. The attorneys at Brodsky & Smith have been appointed by numerous courts throughout the country to serve as lead counsel in class actions and have successfully recovered millions of dollars for our clients and shareholders. Attorney advertising. Prior results do not guarantee a similar outcome. [GN] GREENLANE HOLDINGS: Rosen Law Files Class Action Lawsuit -------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, announces the filing of a class action lawsuit on behalf of purchasers of the securities of Greenlane Holdings, Inc. (GNLN) pursuant or traceable to Greenlane's initial public offering of ordinary shares conducted in April 2019. The lawsuit seeks to recover damages for Greenlane investors under the federal securities laws. To join the Greenlane class action, go to https://www.rosenlegal.com/cases-register-1671.html or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that (1) the City of San Francisco had introduced a major initiative to ban the sale of e-cigarette products across three major cities and prohibit the manufacture of products at the headquarters of Greenlane's key partner, JUUL Labs; (2) if approved, the initiative would materially and adversely impact the Company's financial results and prospects; and (3) as a result of the foregoing, defendants' positive statements about Greenlane's business, operations, and prospects, were materially misleading and/or lacked a reasonable basis. When the true details entered the market, the lawsuit claims that investors suffered damage A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than November 12, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to https://www.rosenlegal.com/cases-register-1671.html or to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or cases@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. Rosen Law Firm has secured hundreds of millions of dollars for investors. Contact: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 Website: www.rosenlegal.com Email: lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com [GN] GREYSTAR REAL: Court Narrows Claims in J. Young Suit ---------------------------------------------------- The United States District Court for the Southern District of California issued an Order granting Defendant's Motion to Dismiss Counts One and Three in the case captioned JONATHON YOUNG, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. GREYSTAR REAL ESTATE PARTNERS, LLC d/b/a DYLAN POINT LOMA APARTMENTS, Defendant. Case No. 3:18-cv-02149-BEN-MSB. (S.D. Cal.). Plaintiff Jonathon Young on behalf of himself and all others similarly situated, brings the instant action against Defendant Greystar Real Estate Partners, LLC. The gravamen of Plaintiff's First Amended Complaint is Defendant harvested a personal photograph of Plaintiff from Plaintiff's personal Instagram page and subsequently reposted it on Defendant's Instagram and Facebook pages without the Plaintiff's consent. Defendant moves to dismiss count one and three of the FAC under Federal Rule of Civil Procedure 12(b)(6) because (1) the Plaintiff is not readily identifiable in the photograph for purposes of the statutory right of publicity claim (2) the Plaintiff failed to plausibly allege statutory standing necessary to pursue a UCL claim (3) the Plaintiff failed to state any claim for injunctive relief or restitution, the only two remedies available under the UCL and (4) the Plaintiff does not and cannot allege that he actually relied on any purported misrepresentation under the UCL's fraudulent prong. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief. A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12.The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Plaintiff Fails to State a Statutory Right to Publicity Claim Section Section 3344 provides, in part: Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner for purposes of advertising without such person's prior consent shall be liable for any damages sustained by the person. The section also provides for statutory damages in the alternative to proving actual damages, and for an award of attorney fees to a prevailing party. Here, Plaintiff alleges Defendant, without Plaintiff's permission, reposted on an apartment complex's Facebook and Instagram webpages a photograph of Plaintiff. The photograph depicted an unidentified male wearing a hat and sunglasses, bending over and scratching a dog's belly at the beach together with the caption Welcome to doggy heaven emoji Your pup will love nearby Ocean Beach Dog Beach, a leash-free haven for pets, people and sandy belly rubs emojis: @dumb_and_dunder. As a result of Defendant's unconsented act, Plaintiff, a police officer, alleges he had his personal photograph exposed to over sixty-thousand Instagram users and countless Facebook views on Defendant's social media webpages. Plaintiff contends he received no compensation for the Defendant's use of his personal photograph for financial gain. Plaintiff's allegations fall short of stating a plausible claim for relief under the heightened pleading standards of Twombly and Iqbal. First, the photograph from which Plaintiff's claim arises makes clear that Plaintiff is not readily identifiable as is required under Section 3344. In the FAC, Plaintiff contends the photograph shows that Plaintiff's entire frame is depicted, and Plaintiff is readily identifiable. However, the Court notes that the only visible facial characteristic is a small, shadowy sliver of the individual's chin. The remainder of the face and all the individual's hair is not discernable It is clear: the Plaintiff is not readily identifiable in the subject photograph or in the screenshots from the Defendant's Instagram and Facebook webpages. Second, Plaintiff's own allegations show that Defendant was unaware of the Plaintiff's identity. Here, Plaintiff asserts Defendant knew the photograph belonged to him Plaintiff because the Defendant tagged him to the photographs on both social media accounts using the tag dumb_and_dunder. However, the FAC contains no allegations that dumb_and_dunder is Plaintiff's name or that the dumb_and_dunder tag would cause the public to readily identify the photograph as depicting Plaintiff. Thus, Plaintiff has failed to plead enough facts to state a claim to relief that is plausible on its face, and Plaintiff's cause of action for statutory relief under Secdtion 3344 is dismissed. Accordingly, Defendant's Motion to Dismiss as to claim one is GRANTED without prejudice. Plaintiff Fails to State a UCL Claim Plaintiff's third cause of action alleges that the Defendant violated California Business & Professions Code Section 17200 (UCL claim). To state a claim for unfair competition pursuant to Cal. Bus. & Prof. Code Section 17200 et seq., a plaintiff must allege an unlawful, unfair, or fraudulent business act or practice or unfair, deceptive, untrue or misleading advertising. California's UCL borrows violations of other laws and treats them as unlawful business practices independently actionable under section 17200. Here, Plaintiff has withdrawn his claim under the UCL and requests this Court to dismiss count three without prejudice. Accordingly, Plaintiffs request to dismiss count three is GRANTED without prejudice. Accordingly, Defendant's Motion to Dismiss Count's 1 and 3 is granted. A full-text copy of the District Court's September 3, 2019 Order is available at https://tinyurl.com/y67f68o3 from Leagle.com. Jonathon Young, Individually and on Behalf of all Others Similarly Situated, Plaintiff, represented by Abbas Kazerounian - ak@kazlg.com - Kazerounian Law Group, APC & Matthew M. Loker - ml@kazlg.com - Kazerouni Law Group, APC. Greystar Real Estate Partners, LLC, doing business as Dylan Point Loma Apartments, Defendant, represented by Matthew Orr - MORR@CALLJENSEN.COM - Call & Jensen APC & William Paul Cole - wcole@calljensen.com - Call & Jensen APC. H. D. SMITH: Asks Court to Extend Time to Reply to Hestrup Suit --------------------------------------------------------------- In the class action lawsuit styled as ERIC HESTRUP, individually and on behalf of all others similarly situated, the Plaintiff, v. H. D. SMITH, LLC; SMITH MEDICAL PARTNERS, LLC, the Defendants, Case No. 1:19-cv-05905 (N.D. Ill., Filed July 24, 2019), the Defendants ask the Court to extend the time by which they are required to answer, move, or otherwise respond to Plaintiffs' Complaint until the later of 30 days after: (1) the Court's ruling on any motion to remand (if one is filed); or (2) the entry of a decision by the Judicial Panel on Multidistrict Litigation ("JPML") granting a motion to vacate a conditional transfer order covering this action (or otherwise finally denying transfer of this action to the opioid-related Multidistrict Litigation ("MDL"), Case No. 2804.[BN] Attorneys for the Plaintiffs are: Seth Meyer, Esq. Ashley Keller, Esq. KELLER LENKNER LLC 150 N. Riverside Plaza, Suite 4270 Chicago, IL 60606 Telephone: (312) 741-5220 E-mail: ack@kellerlenkner.com sam@kellerlenkner.com Counsel for the Defendants are: Mark P. Miller, Esq. Brandon Bridges, Esq. BARNES & THORNBURG LLP One North Wacker Drive, Suite 4400 Chicago, IL 60606 Telephone: (312) 357-1313 Facsimile: (312) 759-5646 E-mail: mark.miller@btlaw.com brandon.bridges@btlaw.com - and - William E. Padgett, Esq. BARNES & THORNBURG LLP 11 South Meridian Street Indianapolis, IN 46204 Telephone: (317) 236-1313 Facsimile: (317) 231-7433 E-mail: william.padgett@btlaw.com HAYT HAYT: Class Action Over Fake Depositions Certified ------------------------------------------------------- Max Mitchell, writing for The Legal Intelligence, reports that a Pennsylvania federal judge has certified a class action against a debt collection firm that allegedly sent out thousands of deposition notices to lure debtors into appearing for settlement talks. U.S. District Judge Berle Schiller of the Eastern District of Pennsylvania ruled in Barenbaum v. Hayt, Hayt & Landau to certify the class action against Eatontown, New Jersey-based firm Hayt, Hayt & Landau over allegations that the firm's practices violated the Fair Debt Collection Practices Act. The judge's ruling further granted summary judgment to the plaintiffs on allegations that the firm's conduct violations the FDCPA's ban against using false, deceptive or misleading means. The law firm, which also won summary judgment dismissals on the claims that the conduct was harassing and unconscionable, had argued the deposition notices were not misleading, since the attorneys had prepared questions for those who appeared for the supposed depositions. Placing the the party under oath and hiring a court reporter, the firm argued according to Schiller, were "incidental." Schiller, however, disagreed. "These 'procedural' features are not merely formalities, they ensure that the information learned at a deposition can be relied upon," Schiller said. "Thus, while HHL devised questions of counsel appearing at depositions to ask judgment debtors, this does not amount to an intention to take a deposition." In In Sep. 10's ruling, Schiller also waded into the question of whether defendants can invoke the bona fide error defense for misinterpreting state law—an issue left open following the U.S. Supreme Court's 2010 decision in Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, which has split district courts across the country. Ultimately, Schiller rejected the law firm's argument that the defense should be applied to misinterpretations of state law. "First, ignorance of a law almost never excuses its violation," he said. Yitzchak Zelman of Marcus & Zelman, who is representing plaintiff Daniel Barenbaum, said that with the class certification and summary judgment ruling, the case is now headed to the damages phase. "Using deposition subpoenas to get debtors to show up to an in-person meeting, just so they can then be pressured into settling their debts, is flat-out wrong," Zelman said in an emailed statement. "We applaud the court's finding that the such abusive practices are prohibited by the FDCPA." The law firm's counsel, Shannon Miller, Esq. of Maurice Wutscher -- smiller@MauriceWutscher.com -- did not return a call seeking comment. According to Schiller, Barenbaum's card account was charged off with a more than $1,000 balance in 2014. The account was eventually soled to Midland Funding, which then hired Hayt, Hayt & Landau to help collect. After the firm obtained a default judgment against Barenbaum in Bucks County court, the firm sent Barenbaum post-judgment interrogatories that included an offer to settle the debt, Schiller said. After Barenbaum did not reply, the firm sent Barenbaum a "Notice of Deposition in Aid of Execution," which directed him to "appear and testify at a deposition." Included in the package Barenbaum received was a page saying that, as an alternative to the deposition, Barenbaum could settle the debt at a 20% reduced rate. Barenbaum subsequently contacted the firm, and was told he was required to attend. Barenbaum appeared at the location with his brother, who is an attorney, and, according to Schiller, although the law firm's attorney was there, there was no court reporter or anyone else who could administer an oath. Although Schiller noted there was disagreement between the parties about what happened next, with the plaintiff contending there were discussions about possibly "writ[ing] off" the debt, Schiller said the lawyer reported back to the firm that Barenbaum had no assets to satisfy the debt. In resolving the summary judgment issue, Schiller noted that the firm regularly conducted these post-settlement "depositions," and that instructions the firm provided to its lawyers indicated that the purpose of the appearances was to "obtain payment for balance in full or enter a voluntary settlement with the defendant." The instructions also told attorneys not to administer an oath to the defendant, but to keep clear notes because the firm had not retained a court reporter. Schiller also noted the firm's employees were instructed to schedule between 30 and 90 depositions for every 2.5-hour time slot, since between 4% and 6% of those contacted typically appeared. Schiller said Barenbaum could not show that the conduct had been harassing, or that it was unfair or unconscionable, but when it came to the conduct being allegedly misleading, Schiller said here was no genuine dispute of fact. "The least sophisticated debtor -- and indeed, debtors of significantly greater sophistication -- would read the notice to say that HHL intended to conduct a deposition when at most HHL sought only an informal conversation regarding the debtor's ability to satisfy his or her debt," Schiller said. "The evidence uniformly shows that, as a matter of policy, HHL never intended to take any of the steps necessary to depose Barenbaum or any other recipients of the notice." [GN] HC WAINWRIGHT: Final Judgment Entered in Prodanova Securities Suit ------------------------------------------------------------------ Judge John A. Kronstadt of the U.S. District Court for the Central Distirct of California dismissed the case, DANIELA PRODANOVA, individually and on behalf of all others similarly situated, Plaintiff, v. H.C. WAINWRIGHT & Co., LLC, et al., Defendants, Case No. 2:17-cv-7926-JAK-AS (C.D. Cal.), in its entirety with prejudice. The Court has entered its Order re: the Defendants' Motion to Dismiss Second Amended Class Action Complaint, dismissing the action with prejudice as to Defendant Oren Livnat and without prejudice as to Defendants H.C. Wainwright & Co., LLC; Mark Viklund and Edward Silvera; and has considered the Lead Plaintiff's Notice of Intent Not to Amend the Second Amended Complaint. The Clerk is directed to enter final judgment in favor of the Defendants. A full-text copy of the Court's Aug. 9, 2019 Final Judgment and Order of Dismissal is available at https://is.gd/8XjG1U from Leagle.com. Daniela Prodanova, Individually and on behalf of all others similarly situated, Plaintiff, represented by Lesley F. Portnoy -- LPORTNOY@GLANCYLAW.COM -- Glancy Prongay and Murray LLP, Lionel Zevi Glancy, Glancy Prongay and Murray LLP, Ira M. Press -- ipress@kmllp.com -- Kirby McInerney LLP, pro hac vice, James R. Swanson -- jswanson@fishmanhaygood.com -- Fishman Haygood LLP, pro hac vice, Jason W. Burge, Fishman Haygood LLP, pro hac vice, Kathryn J. Johnson, Fishman Haygood LLP, pro hac vice, Peter S. Linden -- plinden@kmllp.com -- Kirby McInerney LLP, pro hac vice, Thomas W. Elrod, Kirby McInerney LLP, pro hac vice & Robert Vincent Prongay -- PPRONGAY@GLANCYLAW.COM -- Glancy Prongay and Murray LLP. Panthera Investment Fund L.P., Lead Plaintiff, Individually and on behalf of all others similarly situated, Plaintiff, represented by Jonathan M. Rotter, Glancy Prongay and Murray LLP, Lesley F. Portnoy, Glancy Prongay and Murray LLP, Lionel Zevi Glancy, Glancy Prongay and Murray LLP, Robert Vincent Prongay, Glancy Prongay and Murray LLP & Ira M. Press, Kirby McInerney LLP, pro hac vice. H.C. Wainwright and Co., LLC, Defendant, represented by Harmony Roselina Gbe -- harmony.gbe@hoganlovells.com -- Hogan Lovells US LLP, Paul Benedict Salvaty -- paul.salvaty@hoganlovells.com -- Hogan Lovells LLP, Adam Itzkowitz -- aitzkowitz@wilkauslander.com -- Wilk Auslander LLP, pro hac vice & Jay S. Auslander -- jauslander@wilkauslander.com -- Wilk Auslander LLP, pro hac vice. Mark Viklund & Edward D. Silvera, Defendants, represented by Harmony Roselina Gbe, Hogan Lovells US LLP & Paul Benedict Salvaty, Hogan Lovells LLP. HEADWAY TECH: Glover Sues Over HDD Suspension Assembly Price-fixing ------------------------------------------------------------------- Rhonda Glover, individually and on behalf of all others similarly situated, Plaintiff, 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. 19-cv-05268, (N.D. Cal., August 22, 2019), seeks damages, injunctive relief and other relief pursuant to the Sherman Act, federal antitrust laws, state antitrust, unfair competition, consumer protection laws and the laws of unjust enrichment. Defendants are manufacturers of hard disk drive suspension assemblies. Glover purchased at least one HDD suspension assembly indirectly from at least one Defendant and claims that they conspired to fix prices of and allocate market shares for these suspension assemblies. Suspension assemblies are a component of hard disk drives and are installed in a variety of electronic products. [BN] The Plaintiff is represented by: Eli R. Greenstein, Esq. Stacey Kaplan, Esq. Jenny Paquette, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP One Sansome Street, Suite 1850 San Francisco, CA 94104 Telephone: (415) 400-3000 Facsimile: (415) 400-3001 Email: egreenstein@ktmc.com skaplan@ktmc.com - and - Joseph H. Meltzer, Esq. Melissa L. Troutner, Esq. Natalie Lesser, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Facsimile: (610) 667-7056 Email: jmeltzer@ktmc.com mtroutner@ktmc.com nlesser@ktmc.com HEADWAY TECHNOLOGIES: Apex Computers Alleges HDD Price-Fixing ------------------------------------------------------------- APEX COMPUTERS, INC., individually and on behalf of itself and others similarly situated, Plaintiff v. HEADWAY TECHNOLOGIES, INC.; MAGNECOMP CORPORATION; MAGNECOMP PRECISION TECHNOLOGY PUBLIC COMPANY, 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.; TDK CORPORATION; and TDK CORPORATION—HUTCHINSON TECHNOLOGIES, INC., Defendants, Case No. 3:19-cv-05507 (N.D. Cal., Aug. 30, 2019) alleges that the Defendants engaged in a conspiracy to fix the prices and allocate market shares of suspension assemblies ("SAs") used in hard disk drives ("HDDs") in violation of various state antitrust, consumer protection, and equitable laws. 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 Plaintiff is represented by: Betsy C. Manifold, Esq. Rachele R. Byrd, Esq. Marisa C. Livesay, Esq. Brittany N. Dejong, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 750 B Street, Suite 1820 San Diego, CA 92101 Telephone: (619) 239-4599 Facsimile: (619) 234-4599 E-mail: manifold@whafh.com byrd@whafh.com999 livesay@whafh.com dejong@whafh.com - and - Fred Taylor Isquith, Esq. Thomas H. Burt, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Telephone: (212) 545-4600 Facsimile: (212) 545-4653 E-mail: isquith@whafh.com burt@whafh.com - and - Carl Malmstrom, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 111 West Jackson, Suite 1700 Chicago, IL 60604 Telephone: 312/984-0000 Facsimile: 312/212-4401 E-mail: malmstrom@whafh.com - and - Elizabeth C. Pritzker, Esq. Jonathan K. Levine, Esq. Caroline C. Corbitt, Esq. PRITZKER LEVINE LLP 180 Grand Avenue, Suite 1390 Oakland, CA 94612 Telephone: (415) 692-0772 Facsimile: (415) 366-6110 E-mail: ecp@pritzkerlevine.com jkl@pritzkerlevine.com ccc@pritzkerlevine.com - and - Richard J. Vita, Esq. VITA LAW OFFICES PC 100 State Street, Suite 900 Boston, MA 02109 Telephone: (617) 426-6566 Facsimile: (617) 429-2119 E-mail: RJV@VitaLaw.com HEALTHSPARK FOUNDATION: Harley Appeals Order to Pa. Super. Ct. -------------------------------------------------------------- Plaintiffs Patricia M. Harley, et al., filed an appeal from a lower court order dated July 17, 2019, in their lawsuit entitled Harley, P., et al. v. Healthspark Foundation, et al., Case No. 2405 EDA 2019, in the Montgomery County Court of Common Pleas. The case is a civil class action lawsuit arising from employment-related disputes. The appellate case is captioned as Patricia M. Harley R.N., Martha Moody R.N., Holly DiCarlo R.N., and Wendy Poynor, R.N., for themselves and as representatives of others similarly situated, Appellants v. Healthspark Foundation (f/k/a North Penn Community Health Foundation) and David T. Shannon, Defendants, and Josh Shapiro, Attorney General, Intervenor, Case No. 2512 EDA 2019, in the Superior Court of Pennsylvania.[BN] Plaintiffs-Appellants Patricia M. Harley R.N., Martha Moody R.N., Holly DiCarlo R.N., and Wendy Poynor, R.N., are represented by: Charles J. Weiss, Esq. Christine Marie Gordon TIMONEY KNOX, L.L.P. 400 Maryland Dr. PO Box 7544 Ft. Washington, PA 19034-7544 Telephone: (215) 540-2654 E-mail: CJWeiss@timoneyknox.com CGordon@timoneyknox.com Defendants-Appellees Healthspark Foundation (f/k/a North Penn Community Health Foundation), and David T. Shannon are represented by: James C. Sargent, Jr., Esq. Maureen Murphy McBride, Esq. LAMB MCERLANE, PC 24 E Market St. PO Box 565 West Chester, PA 19380 Telephone: (610) 430-8000 E-mail: jsargent@lambmcerlane.com mmcbride@lambmcerlane.com Intervenor Josh Shapiro, Attorney General, is represented by: Nancy Anne Walker, Esq. Mary Catherine Kenney, Esq. Ryan Blake Smith, Esq. PENNSYLVANIA OFFICE OF ATTORNEY GENERAL 1600 Arch St., Suite 300 Philadelphia, PA 19103 Telephone: (215) 560-2704 HOMEJAB LLC: Chamely Hits Unsolicited SMS Ads --------------------------------------------- Jason Chamely, individually and on behalf of all others similarly situated, Plaintiff, v. HomeJab, LLC, Defendant, Case No. 19-cv-62125 (S.D. Fla., August 23, 2019), seeks statutory damages, punitive damages, costs and attorney fees for violation of the Telephone Consumer Protection Act. HomeJab is a real estate photographer. To promote its services, it engages in unsolicited SMS ads sent en masse via an auto dialer. Chamely opted out of receiving notices from HomeJab yet continued to received their messages. [BN] The Plaintiff is represented by: Scott Edelsberg, Esq. Jordan D. Utanski, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd #607 Aventura, FL 33180 Telephone: (305) 975-3320 Email: scott@edelsberglaw.com utanski@edelsberglaw.com - and - Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 400 Miami, FL 33132 Telephone: 305-479-2299 Email: ashamis@shamisgentile.com gberg@shamisgentile.com IMPAX LAB: NY Pension Fund Appeals N.D. Cal. Ruling to 9th Cir. --------------------------------------------------------------- Lead Plaintiff New York Hotel Trades Council & Hotel Association of New York City, Inc. Pension Fund filed an appeal from a Court ruling in the lawsuit styled New York Hotel Trades Council, et al. v. IMPAX LABORATORIES, INC., et al., Case No. 4:16-cv-06557-HSG, in the U.S. District Court for the Northern District of California, Oakland. As previously reported in the Class Action Reporter, Judge Haywood S. Gilliam, Jr., granted Lead Plaintiff New York Hotel Trades Council & Hotel Association of New York City, Inc. Pension Fund's administrative motion to file a statement of recent decision. On May 20, 2019, the Plaintiff respectfully moved for permission to file a statement of recent decision in support of its Jan. 17, 2019 Memorandum of Points and Authorities in Opposition to Motion to Dismiss Plaintiff's Second Amended Complaint. Judge Gilliam, having considered the papers filed, granted the Plaintiff's administrative motion to file a statement of recent decision. The statement should not include any argument. The appellate case is captioned as New York Hotel Trades Council, et al. v. IMPAX LABORATORIES, INC., et al., Case No. 19-16744, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by October 7, 2019; -- Transcript is due on November 6, 2019; -- Appellant New York Hotel Trades Council & Hotel Association of New York City, Inc. Pension Fund's opening brief is due on December 16, 2019; -- Appellees Carole Ban-Maimon, Larry Hsu, IMPAX LABORATORIES, INC., Bryan M. Reasons and George Frederick Wilkinson's answering brief is due on January 16, 2020; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant NEW YORK HOTEL TRADES COUNCIL & HOTEL ASSOCIATION OF NEW YORK CITY, INC. PENSION FUND, Lead Plaintiff, on behalf of itself and all others similarly situated is represented by: Luke Orion Brooks, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway San Diego, CA 92101 Telephone: (619) 231-1058 E-mail: lukeb@rgrdlaw.com - and - Shawn Anthony Williams, Esq. ROBBINS GELLER RUDMAN & DOWD, LLP One Montgomery Street San Francisco, CA 94104 Telephone: (415) 288-4545 E-mail: shawnw@rgrdlaw.com Defendants-Appellees IMPAX LABORATORIES, INC.; GEORGE FREDERICK WILKINSON; LARRY HSU; CAROLE BAN-MAIMON; and BRYAN M. REASONS are represented by: Marcy Christina Priedeman, Esq. Peter A. Wald, Esq. Morgan E. Whitworth, Esq. LATHAM & WATKINS LLP 505 Montgomery Street, Suite 2000 San Francisco, CA 94111-6538 Telephone: (415) 646-7862 E-mail: marcy.priedeman@lw.com peter.wald@lw.com morgan.whitworth@lw.com JUST ENERGY: Faces Brodeur Suit Over Securities Law Violations -------------------------------------------------------------- ANDRE BRODEUR, Individually and On Behalf of All Others Similarly Situated v. JUST ENERGY GROUP INC., DEBORAH MERRIL, JAMES LEWIS, PATRICK MCCULLOUGH, and JIM BROWN, Case No. 1:19-cv-08286 (S.D.N.Y., Sept. 5, 2019), seeks to pursue remedies under the Securities Exchange Act of 1934 on behalf of the Plaintiff and other holders of the Company's securities. The Plaintiff contends that the Defendants failed to disclose to investors that the Company experienced customer enrollment and nonpayment issues, and as a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, the Plaintiff and other Class members have suffered significant losses and damages. Just Energy is incorporated under the laws of Canada with its principal executive offices located in Ontario, Canada. The Individual Defendants are directors and officers of the Company. Just Energy purports to be a consumer company focused on essential needs, including electricity and natural gas commodities; on health and well-being, through products such as water quality and filtration devices; and on utility conservation, including renewable energy options.[BN] The Plaintiff is represented by: Jeremy A. Lieberman, Esq. J. Alexander Hood, II, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com - and - Peretz Bronstein, Esq. BRONSTEIN, GEWIRTZ & GROSSMAN, LLC 60 East 42nd Street, Suite 4600 New York, NY 10165 Telephone: (212) 697-6484 Facsimile: (212) 697-7296 E-mail: peretz@bgandg.com KAMKAD AUTOMOTIVE: Faces Harris Suit in Dallas State Court ---------------------------------------------------------- A class action lawsuit has been filed against Kamkad Automotive Group. The case is captioned as Jessie Ray Harris, individually and on behalf of all other similarly situated, the Plaintiff, vs. Kamkad Automotive Group dba Kamkad Hyundai, the Defendant, Case No. DC-19-13832 (Dallas 298th Dist., Sept. 4, 2019).[BN] LOOMIS ARMORED: Class in Myers FLSA Suit Conditionally Certified ---------------------------------------------------------------- In the case, SHAKEERA MYERS, on behalf of herself and all others similarly situated, Plaintiff, v. LOOMIS ARMORED US, LLC, Defendant, Docket No. 3:18-cv-00532-FDW-DSC (W.D. N.C.), Judge Frank D. Whitney of the U.S. District Court for the Western District of North Carolina, Charlotte Division, granted the Plaintiff's Motion for Conditional Certification Pursuant to the Fair Labor Standards Act, Court-Authorized Notice to be Issued under 29 U.S.C. Section 216(B), Class Certification under Fed. R. Civ. P. 23, and Appointment of Class Counsel Under Fed. R. Civ. P. 23(G). On July 25, 2019, the Court granted the Plaintiff's motion to certify the FLSA/NCWHA actions but denied without prejudice her motion to authorize class notices. The Court directed parties to confer and agree upon the content and distribution of the notices (including appropriate forms), and jointly submit, within seven days of that Order, proposed notice and forms for the Court's approval. In the event parties were unable to agree, the parties were directed to brief the issues to be submitted within 10 days from its Order. The parties have briefed these issues. Consistent with the Order, Judge Whitney granted the Plaintiff's motion and approved the notice pursuant to Fed. R. Civ. P. 23(c)(2)(B) and 29 U.S.C. Section 216(b). However, the following modifications to her Proposed Notice are necessary: a. Modification of INTRODUCTION section in its entirety to read: "The purpose of this Notice is to: 1.) Inform you of the existence of a case in which you are potentially eligible to participate; 2.) Advise you of how your rights may be affected by this case; and 3.) Instruct you on the procedure for participating in this case, if you decide to join. Defendant Loomis Armored US, LLC's records reflect that you were employed by Defendant in one or more of the Armored Service Technician or other similar positions included in this case during on or after October 1, 2015. The Court has certified a class and conditionally certified collective action lawsuit that may affect you. A trial may be necessary to decide whether the claims Plaintiff makes against Defendant on your behalf are correct or whether Defendant's defenses to those claims are correct. The Honorable Frank D. Whitney, Chief District Court Judge in the United States District Court for the Western District of North Carolina is overseeing this lawsuit." b. Addition of a header that reads DESCRIPTION OF THE LAWSUIT. This section is to read: "On October 1, 2018, Plaintiff Shakeera Myers filed a lawsuit against Loomis Armored US, LLC (Defendant) in behalf of herself and others similarly situated, in the U.S. District Court for the Western District of North Carolina. Plaintiff alleges that Loomis violated the Fair Labor Standards Act (FLSA) by allegedly failing to pay its Armored Service Technicians, including, armed drivers, armed messengers, and armed guards, all wages owed, including overtime wages at a rate of one-and-one-half their regular rate of pay for work performed in excess of forty (40) hours per week. Plaintiff alleges that she, and others similarly situated, are entitled to recover all unpaid wages for such work performed from October 1, 2015 to the present. Plaintiff seeks back pay wages, prejudgment interest, liquidated damages, and attorney's fees and costs. Plaintiff also alleges violations of the North Carolina State Wage and Hour Act (NCWHA). In the state law part of this lawsuit, Plaintiff also asserts that, throughout the relevant period, Loomis allegedly maintained a corporate policy of deducting the costs of bulletproof vests and firearms from employees' wages, without obtaining the employees' prior written authorization as required by N.C. Gen. Stat. Section 95-25.8. Plaintiff claims that Defendant must pay back wages for the actual hours worked, including but not limited to, accrued and unpaid regular and overtime wages, unauthorized deductions, an equal amount in additional liquidated damages, interests, plus costs in attorney's fees. Loomis Armored US, LLC has denied Plaintiff's allegations that it violated the FLSA or North Carolina law, or failed to properly pay its employees for wages and overtime and has further denied Plaintiff's allegations that it is liable to Plaintiff under any circumstances. The Court has allowed the lawsuit to be certified as a class action under the NCWHA and conditionally certified a collective action under the FLSA on behalf of employees allegedly affected by Loomis's pay policies. Nothing in this Notice is intended as an expression of the Court's opinion about the merits of Plaintiff's claims or about whether you should join this lawsuit. There is no money available now, and no guarantee there will be any. However, your legal rights are affected, and you have a choice to make now, and you must act before September 16, 2019." c. Addition of the third party administrator information. d. Omission of WHY AM I GETTING THIS NOTICE?, WHAT IS THE LAWSUIT ABOUT-FLSA CLAIMS?, and WHAT IS THIS CASE ABOUT PURSUANT TO THE NORTH CAROLINA CLAIMS? sections because they are now duplicative. e. Modifification of HOW DO I JOIN THIS CASE AND WHAT HAPPENS NEXT? section in its entirety to read: "If you wish to join this case, you must complete and sign the attached Consent to Join form and return it via U.S. Mail in the business reply envelope included to the following address: Gilda A. Hernandez The Law Offices of Gilda A. Hernandez, PLLC 1020 Southhill Dr., Ste 130 Cary, NC 27513. This form must be postmarked no later than September 16, 2019. If you fail to return the Consent to Join form to Plaintiff's counsel on or before the above deadline date, you may not be able to participate in this lawsuit. If you decide to join this lawsuit, Plaintiff's counsel will keep you informed of the status of the case. The Joining this case does not guarantee that you will receive any money from the case because a monetary recovery is not certain. If you join this case, you will be bound by any settlement or judgment entered by the Court, whether favorable or unfavorable, and you will forfeit the right to sue Defendant as an individual for the same claims made in this case. While the suit is proceeding, you may be required to respond to written questions under oath, produce certain documents, appear for a deposition (at which point you will be asked questions by attorneys for Loomis Armored US, LLC under oath), or testify in court in Charlotte. If you choose to join the lawsuit, you will have an obligation to preserve documents and information related to the case." e. Omission IF THE EMPLOYEE IS SUCCESSFUL IN THIS CASE, WHAT MONEY MIGHT I RECEIVE? section because it is now duplicative. f. Modification YOUR LEGAL REPRESENTATION IF YOU JOIN header to read: "LEGAL REPRESENTATION. Omit header WHO WILL BE MY LAWYER? Modification of the text in its entirety to read: "Counsel representing the Plaintiff in this lawsuit are: Gilda A. Hernandez, Esq. Charles Robert Ash, IV, Charlotte Smith, Esq. Matthew L. Turner THE LAW OFFICES OF SOMMERS SCHWARTZ, P.C. GILDA A. HERNANDEZ, PLLC One Towne Square, Suite 1700 1020 Southhill Dr., Ste 130 Southfield, MI 48076 Cary, NC 27513 248-355-0300, Tel: (919) 741-8693 248-746-4001 (fax) Fax: (919) 869-1853 rkreuz@gildahernandezlaw.com. The Court ordered that Plaintiff's counsel may represent all class members related to Plaintiff's state law claims. As to the FLSA claims, unless you choose another lawyer (at your own expense), these attorneys will represent you in this lawsuit if you wish to join the lawsuit." g. Omission of the header HOW WILL THE LAWYERS BE PAID?. h. Omission of the THE TRIAL section in its entirety. The proposed opt-in/opt-out forms are agreed to by the parties and approved by the Court. The Plaintiff will file an electronic copy of the notice and consent forms with the Court through ECF within five days of the entry of the Order. The Defendant will post the notice to the prospective class members and putative Plaintiffs at each of the North Carolina warehouses in an area regularly and routinely available for review by Armored Service Technicians. The Judge declined to grant the Plaintiff's request to send additional notices by email and text messages. Given the timing of the Notice, he believes repetitive unsolicited contact with the potential party Plaintiffs after the initial Notice by First Class Mail may create the appearance of undue Court involvement in the solicitation of claims. Similarly, he finds duplicative notices inappropriate. Consistent with the Order, Judge Whitney set the deadline for opting into the action as Sept. 16, 2019. A full-text copy of the Court's Aug. 9, 2019 Order is available at https://is.gd/Er4IiP from Leagle.com. Shakeera Myers, on behalf of herself and all others similarly situated, Plaintiff, represented by Charles Robert Ash, IV -- crash@sommerspc.com -- Sommers Schwartz, P.C., pro hac vice, Charlotte Claire Smith -- csmith@gildahernandezlaw.com -- Law Offices of Gilda A. Hernandez, Matthew L. Turner -- mturner@sommerspc.com -- Sommers Schwartz, P.C., pro hac vice & Gilda Adriana Hernandez -- ghernandez@gildahernandezlaw.com -- The Law Offices of Gilda A. Hernandez. Loomis Armored US, LLC, Defendant, represented by Claire B. Deason -- cdeason@littler.com -- Littler Mendelson P.C., pro hac vice, Jerry Howard Walters, Jr. -- jwalters@littler.com -- Littler Mendelson, P.C. & Lyndsey M. Marcelino, Littler Mendelson P.C., pro hac vice. LOUISIANA REGIONAL: Court Denies Bid to Remand Addison Suit ----------------------------------------------------------- In the case, FREDERICK E. ADDISON, SR., ET AL., Plaintiffs, v. LOUISIANA REGIONAL LANDFILL COMPANY, ET AL., Defendants, Civil No. 19-11133 (E.D. La.), Judge Susie Morgan of the U.S. District Court for the Eastern District of Louisiana denied the Plaintiffs' motion to remand. Seven consolidated actions were removed to the Court from the Twenty-Fourth Judicial District Court for the Parish of Jefferson. The state court actions name as Defendants Jefferson Parish, Aptim Corp., and the following four affiliated entities: Louisiana Regional Landfill Company (formerly known as, and named in the caption as, IESI LA Landfill Corp.); Waste Connections Bayou, Inc. (formerly known as, and named in the caption as, Progressive Waste Solutions of LA, Inc.); Waste Connections US, Inc.; ("Waste Connections Defendants"). The Plaintiffs in each state court action list their addresses and allege they own or reside at property near the Jefferson Parish Landfill in Waggaman, Louisiana. They allege the Landfill emitted harmful and toxic odors and chemicals and caused them physical harm, diminution in property value, inconvenience, loss of enjoyment of property, and pain and suffering. The first action, Addison et al. v. La. Regional Landfill Co., et al., was filed in the State Trial Court on Dec. 13, 2018. Between February and May 2019, five additional actions involving different plaintiffs but largely identical factual allegations were filed in the State Trial Court. In all six cases, the same counsel enrolled for the Plaintiffs and the same Defendants are named. On April 11, 2019, Defendant Jefferson Parish moved to consolidate the six actions in the State Trial Court. On May 9, 2019, the counsel for the Plaintiffs in the six cases consented to consolidation. On May 22, 2019, the State Trial Court entered an order consolidating the actions. On May 20, 2019, a seventh action, Paul v. La. Regional Landfill Co., was filed in the State Trial Court by different plaintiffs. The same counsel enrolled for the plaintiffs, the same defendants were named, and the factual allegations are nearly identPical. On May 28, 2019, Defendant Jefferson Parish moved to consolidate the seventh action with the consolidated Addison action. The Plaintiffs consented. On June 10, 2019, the Waste Connections Defendants removed the consolidated actions to the Court. They invoke the Court's jurisdiction under the mass action provisions of the Class Action Fairness Act ("CAFA"). On June 17, 2019, the Plaintiffs filed the instant motion to remand. On July 1, 2019, the Defendants filed a joint opposition. The Plaintiffs filed a reply. On July 29, 2019, the Court heard oral argument on the motion. The Plaintiffs argue the Court does not have jurisdiction over the instant matter because the actions were "joined upon motion of a defendant," and they fall into the single event exception. Judge Morgan first addresses whether the action qualifies as a mass action under CAFA's general mass action provisions. She then turns to the applicability of the exception for actions "joined upon motion of a defendant" and the single event exception. In order for the Court to exercise jurisdiction over the action under CAFA's mass action provision, the action must meet the requirements of 28 U.S.C. Section 1332(d)(2)-(10). The Judge finds that (i) it is facially apparent that the aggregate amount in controversy exceeds $5 million; (ii) for purposes of CAFA's general mass action provisions, the action involves at least 100 Plaintiffs; and (iii) it is facially apparent that at least one Plaintiff has claims exceeding $75,000 in value. As a result, she finds the action satisfies the requirements of CAFA's general mass action provisions. Next, the Judge is mindful of Congress' admonition that the exceptions to the mass actions provision be interpreted strictly by federal courts. In this context, this means the Court should exercise its jurisdiction unless it is clear an exception applies. The Plaintiffs consented to consolidation in connection with the original six actions consolidated in the State Trial Court and, again, in connection with Paul. The Judge finds the Plaintiffs effectively proposed a joint trial. They have not met their burden of showing the action is one in which "the claims are joined upon motion of a defendant." As a result, this exception to CAFA's mass action provisions does not apply. Although the case involves an environmental tort, the Judge finds the emission of odors and chemicals from various sources, caused by various failures on the parts of various Defendants, at different times over a period of years, does not constitute a single focused event such as occurs in a chemical spill. As a result, a finding that the Plaintiffs do not allege a single event is consistent with Congressional intent. Finally, the Plaintiffs have not identified by name any Plaintiff whose claims must be remanded because they fall below the $75,000 threshold. At the motion hearing, their counsel represented there may be some Plaintiffs who would fall below the threshold. As a result, the Judge will require the Plaintiffs to identify those claims that must remanded. For the foregoing reasons, Judge Morgan denied the Plaintiffs' motion to remand. The Plaintiffs have until Sept. 6, 2019 at 5:00 p.m. to produce (1) a spreadsheet providing information about all their damages and (2) summary judgment type evidence to support a finding that any individual Plaintiff's claim does not exceed $75,000. The Plaintiffs must file: (i) a spreadsheet listing each Plaintiff, the nature of his or her damages, his or her domiciliary address, and his or her interest in that immovable property; and (ii) for each Plaintiff whose claim does not exceed $75,000, a sworn affidavit describing the nature and amount of that the Plaintiff's damages. Such a Plaintiff's stipulation that the amount in controversy is not satisfied is binding only if, within that stipulation, he expressly renounced his right to recover in excess of $75,000 in the event he was awarded above that amount in state court. Each affidavit must be signed by the applicable Plaintiff, and the Plaintiff must swear that its contents are true and correct under penalty of perjury. The Defendants have until Sept. 20, 2019 at 5:00 p.m. to file a response to any summary judgment type evidence submitted by the Plaintiffs. A full-text copy of the Court's Aug. 9, 2019 Order and Reasons is available at https://is.gd/WUZU4E from Leagle.com. Frederick E Addison, Sr, Barbara Addison, Perry Andras, Sheila Baskin, Willie Faye Brooks, Eric Brown, Ramona Byrd, Doris Collins, Edward Cloudet, Monica Coleman-Lestrick, Individually, and on behalf of her minor child, CL, Lula Darden, Demonte Deteige, Vincent Eaton, Kimberly Engel, Adelaine Fitzpatrick, Carla Ford, Gerald Ford, Verna Mae Gabriel, Merlene Grant, Wendy Gremillion, Individually, and on behalf of her minor children, ASG and BCG, Scott Gremillion, Regina Pierre Griffin, Glenda Builbeau, Albertine Hargrave, Jose Hernandez, Individually, and on behalf of his minor children, MH and LH, Liz Hernandez, Kimberly Himel, Cory Himel, Ada Jackson, Bridgette Johnson, Margarite Johnson, Melodie Jones, Rita Jones, Elizabeth Lala, Bruce Lightell, John Lowe, Gary Meyers, Rhonda Meyer, Alexander Mitchell, Regina Mitchell, Joseph Pete, Jr., Terry Pete, Individually, and on before of her minor children, JP and AP, Andrea Pickney, Warren Pickney, Pearl Pinkley, Carolyn Polk, Gerald Polk, Glenda Primus, Juliane Rayburn, Kian Riley, Karen Ross, Individually, and on behalf of her minor children, JR, JR, and TR, Tony Ross, Aletha Scott, David Scott, Cari Serpas, Individually, and on behalf of her minor children, GS and CS, Steven Serpas, John Thompson, Chandra Tigler, Individually, and on behalf of her minor child, OT, Oscar Tigler, Gloria Tolodano, Roy Tolodano, Melvin Ursin, Santana Uthaisang, Kirk Wells, Individually, and on behalf of his minor children, AW and JW, Charles Lee Anderson, Individually, and on behalf of Class, Rickey Calligan, Individually, an on behalf of Class & Mary Paul, Individually, and on behalf of Class, Plaintiffs, represented by Byron M. Forrest, Forrest Cressy & James, LLC, Adrian Frank Snead -- asnead@wtplaw.com -- Whiteford Taylor & Preston, pro hac vice, Barry S. Neuman -- bneuman@wtplaw.com -- Whiteford Taylor & Preston, pro hac vice, Eric Charles Rowe -- erowe@wtplaw.com -- Whiteford Taylor & Preston, pro hac vice & Sara Eliza James, Forrest Cressy & James, LLC. Ethel Green & Elizabeth Lowe, Plaintiffs, represented by Sara Eliza James, Forrest Cressy & James, LLC, Adrian Frank Snead, Whiteford Taylor & Preston, pro hac vice, Barry S. Neuman, Whiteford Taylor & Preston, pro hac vice & Eric Charles Rowe, Whiteford Taylor & Preston, pro hac vice. Rebecca Wells, Kevin Woods, Mary Wood & Mary Ann Winningkof Individually, and on behalf of Class, Plaintiffs, represented by Byron M. Forrest, Forrest Cressy & James, LLC, Adrian Frank Snead, Whiteford Taylor & Preston, pro hac vice, Eric Charles Rowe, Whiteford Taylor & Preston, pro hac vice & Sara Eliza James, Forrest Cressy & James, LLC. Louisiana Regional Landfill Company, formerly known as IESI LA Landfill Corporation, Waste Connections US, Inc & Waste Connections Bayou, Inc., formerly known as Progressive Waste Solutions of LA, Inc., Defendants, represented by Michael C. Mims -- mmims@bradleyfirm.com -- Bradley Murchison Kelly & Shea, LLC, David R. Taggart -- dtaggart@bradleyfirm.com -- Bradley, Murchison, Kelly & Shea, LLC, James B. Slaughter, Beveridge & Diamond, PC, pro hac vice, John H. Paul, Beveridge & Diamond, pro hac vice, Megan R. Brillault, Beveridge & Diamond, pro hac vice & Michael G. Murphy -- mmurphy@bdlaw.com -- Beveridge & Diamond, pro hac vice. Aptim Corp, Defendant, represented by William A. Barousse, Gieger, Laborde & Laperouse, LLC, Ernest Paul Gieger, Jr., Gieger, Laborde & Laperouse, LLC, John Michael DiGiglia, Gieger, Laborde & Laperouse, LLC & Jonathan S. Ord, Gieger, Laborde & Laperouse, LLC. Jefferson Parish, Defendant, represented by William Peter Connick, Connick & Connick, LLC, Matthew Dara Moghis, Connick & Connick, LLC & Michael S. Futrell, Connick & Connick, LLC. LUMBER LIQUIDATORS: $4.75MM Settlement Reached in Kramer Suit ------------------------------------------------------------- Lumber Liquidators Holdings, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on September 12, 2019, that a settlement agreement has been entered in the class action suit entitled, Robert J. Kramer, behalf of himself, all other similarly situated v. Lumber Liquidators, Inc., a Delaware corporation; and Does 1 through 100, inclusive In July 2019, Lumber Liquidators, Inc. (the "Company"), who is a defendant in a putative class action litigation captioned Robert J. Kramer, behalf of himself, all other similarly situated v. Lumber Liquidators, Inc., a Delaware corporation; and Does 1 through 100, inclusive (the "Kramer Litigation"), entered into a Memorandum of Understanding ("Kramer MOU") with the lead plaintiff in the Kramer Litigation, Robert J. Kramer, on behalf of himself and all others similarly situated (collectively, the "Kramer Plaintiffs") to memorialize an agreement in principle to settle the Kramer Litigation. On September 9, 2019, the Company entered into a definitive settlement agreement with the Kramer Plaintiffs consistent with the terms of the Kramer MOU (the "Settlement Agreement"). The Settlement Agreement is subject to approval by the Superior Court of California, County of Sacramento (the "Court") and other contingencies. Under the terms of the Settlement Agreement, the Company will pay $4.75 million (the "Settlement Fund") to settle all claims asserted in the Kramer Litigation (or which could have been asserted in the Kramer Litigation) on behalf of all current and/or former store managers and store managers in training employed by the Company in the State of California (the "Putative Class Members") at any time between November 17, 2013 until the time of preliminary approval of the settlement by the court (the "Class Period"). The Settlement Fund will be used to pay notice and administrative fees relating to the class actions and to compensate those individuals that were Putative Class Members during the Class Period. Holdings believes that its cash flow from operations, together with existing liquidity sources, is sufficient to fund the Settlement Fund, which will be paid within 14 days of the Court's final approval order of the Settlement Agreement and the dismissal of the Kramer Litigation. The Kramer Plaintiffs' legal fees and costs, not to exceed 33.33% of the Settlement Fund, are included as part of the Settlement Fund. Holdings previously disclosed in its Quarterly Report on Form 10-Q for the quarter ended June 30, 2019, that it had recognized a net charge to earnings of $4.75 million within selling general and administrative expense during the quarter ended June 30, 2019. Lumber Liquidators said, "There can be no assurance that a settlement will be finalized by the parties and approved by the Court or as to the ultimate outcome of the Kramer Litigation. The execution of the Settlement Agreement does not constitute an admission by the Company of any fault or liability and the Company does not admit fault or liability. If the settlement cannot be finalized by the parties or the Settlement Agreement is not approved by the Court, the Company will defend the Kramer Litigation vigorously and believes there are meritorious defenses and legal standards that must be met for, among other things, class certification and success on the merits. If the parties are unable to finalize the settlement, the Kramer Litigation could have a material adverse effect on Holding's financial condition and results of operations. Lumber Liquidators Holdings, Inc., together with its subsidiaries, operates as a multi-channel specialty retailer of hard-surface flooring, and hard-surface flooring enhancements and accessories. The company also offers its products through its Website, catalogs, and call center. Lumber Liquidators Holdings, Inc. was founded in 1994 and is headquartered in Toano, Virginia. MALLINCKRODT ARD: Plumbers Suit Moved to New Jersey Federal Court ----------------------------------------------------------------- The case is captioned as UNITED ASSOCIATION OF PLUMBERS & PIPEFITTERS LOCAL 322 OF SOUTHERN NEW JERSEY, individually and on behalf of all others similarly situated, the Plaintiff, vs. MALLINCKRODT ARD, LLC, the Defendant, Case No. CAM-L-2912-19, was removed form the Superior Court of Camden County, to the U.S. District Court for the District of New Jersey (Camden) on Sept. 3, 2019. The District of New Jersey Court Clerk assigned Case No. 1:19-cv-17584-NLH-JS to the proceeding. The suit alleges fraud-related violation. The case is assigned to the Hon. Judge Noel L. Hillman. Mallinckrodt is an Irish–tax registered manufacturer of specialty pharmaceuticals (namely, adrenocorticotropic hormone), generic drugs and imaging agents.[BN] Attorneys for the Plaintiff are: Donald E. Haviland, Jr., Esq. HAVILAND HUGHES 201 S. Maple Way, Suite 110 Ambler, PA 19002 Telephone: (215) 609-4661 Facsimile: (215) 392-4400 E-mail: haviland@havilandhughes.com Attorneys for the Defendant are: Lynne N. Nahmani, Esq. Jonathan D. Weiss, Esq. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 15000 Midlantic Drive, Duite 300 P.O. Box 5429 Mount Laurel, NJ 08054 Telephone: (856) 414-6000 E-mail: lnnahmani@mdwcg.com MAPLE & ASH: Food Tainted with Pathogens, Ashkar et al. Allege -------------------------------------------------------------- BEN ASHKAR; and MICHELLE LESZKIEWICZ, individually and on behalf of all others similarly situated, Plaintiff v. MAPLE & ASH MANAGEMENT, LLC d/b/a MAPLE & ASH; and FORTUNE INTERNATIONAL, LLC d/b/a FORTUNE FISH AND GOURMET, Defendants, Case No. 2019L009612 (Ill. Cir., Cook Cty., Aug. 29, 2019) is an action against the Defendants for failure to maintain food products free from food contaminants. According to the complaint, the Plaintiffs sustained illness due to campylobacter and other unsafe pathogen while consuming food products prepared by the Defendants. The Plaintiffs sustained illness and expended large sums of money for medical care and services while endeavoring to become healed and cured of the illness. Maple & Ash Management, LLC d/b/a Maple & Ash is engaged in the restaurant business.[BN] The Plaintiffs are represented by: Robert A. Langendorf, Esq. ROBERT A. LANGENDORF, P.C. 134 North LaSalle Street, Suite 1515 Chicago, IL 60602 Telephone: (312) 782-5933 E-mail: Robert@langendorfpc.com MDL 2641: Christensen v. CR Bard over IVC Filters Consolidated -------------------------------------------------------------- The class action lawsuit captioned Andrew Christensen and Rhonda Connelly, the Plaintiffs, vs. C R Bard Incorporated and Bard Peripheral Vascular Incorporated, the Defendants, Case No. 2:19-cv-03326 (Filed May 21, 2019), was transferred from the U.S. District Court for the District Arizona, to the U.S. District Court for the Southern District of Georgia (Augusta) on Sept. 10, 2019. The Southern District of Georgia Court Clerk assigned Case No. 1:19-cv-00158-JEG-BKE to the proceeding. The case is assigned to the Hon. Judge James E. Graham. The Plaintiffs bring this action for personal injuries and/or wrongful death damages suffered by an injured or deceased party or parties as a direct and proximate result of an injured or deceased party being implanted with a defective and unreasonably dangerous Inferior Vena Cava ("IVC") filter medical device manufactured by Bard. The IVC filters are part of Bard's IVC "retrievable" filter product line and include the following devices: Recovery (TM), G2 (TM), G2X (TM) (G2 Express), Eclipse (TM), Meridian (TM), and Denali (TM). The term "Bard IVC Filters" also includes Bard's Recovery Cone Removal System. The case is consolidated in MDL 2641 re: BARD IVC Filters Products Liability Litigation.[BN] Attorneys for the Plaintiffs are: Brandon L Rich, Esq. DRIGGS BILLS & DAY PLLC 2125 Western Ave., Ste. 500 Seattle, WA 98121 Telephone: (206) 607-9098 Facsimile: (206) 641-3214 E-mail: brich@lawdbd.com Attorneys for the Defendants are: Richard B. North, Jr., Esq. NELSON, MULLINS, RILEY & SCARBOROUGH, LLP Atlantic Station 201 Seventeenth St., NW, Suite 1700 Atlanta, GA 30363 Telephone: (404) 322-6155 Facsimile: (404) 322-6093 E-mail: richard.north@nelsonmullins.com MDL 2641: Creech v. CR Bard over IVC Filters Consolidated --------------------------------------------------------- The class action lawsuit captioned William David Creech and Barbara Creech, the Plaintiffs, vs. C. R. Bard, Inc. and Bard Peripheral Vascular, Inc., the Defendants, Case No. 2:19-cv-02825 (Filed May 3, 2019), was transferred from the U.S. District Court for the District Arizona, to the U.S. District Court for the Southern District of Georgia (Augusta) on Sept. 9, 2019. The Southern District of Georgia Court Clerk assigned Case No. 1:19-cv-00155-JRH-BKE to the proceeding. The case is assigned to the Hon. Judge J. Randal Hall. The Plaintiffs bring this action for personal injuries and/or wrongful death damages suffered by an injured or deceased party or parties as a direct and proximate result of an injured or deceased party being implanted with a defective and unreasonably dangerous Inferior Vena Cava ("IVC") filter medical device manufactured by Bard. The IVC filters are part of Bard's IVC "retrievable" filter product line and include the following devices: Recovery (TM), G2 (TM), G2X (TM) (G2 Express), Eclipse (TM), Meridian (TM), and Denali (TM). The term "Bard IVC Filters" also includes Bard's Recovery Cone Removal System. The case is consolidated in MDL 2641 re: BARD IVC Filters Products Liability Litigation.[BN] Attorney for the Plaintiff is: Wes S Larsen, Esq. JAMES VERNON & WEEKS PA 1626 Lincoln Way Coeur d'Alene, ID 83814 Telephone: (208) 667-0683 Facsimile: (208) 664-1684 E-mail: wes@jvwlaw.net Attorneys for the Defendants are: Richard B. North, Jr., Esq. NELSON, MULLINS, RILEY & SCARBOROUGH, LLP Atlantic Station 201 Seventeenth St., NW, Suite 1700 Atlanta, GA 30363 Telephone: (404) 322-6155 Facsimile: (404) 322-6093 E-mail: richard.north@nelsonmullins.com MEREDITH CORP: Faces Securities Class Suit in New York and Iowa --------------------------------------------------------------- Meredith Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on September 13, 2019, for the fiscal year ended June 30, 2019, that the company has been named as a defendant in two securities class action suits, one in the U.S. District Court for the Southern District of New York and the other is in the U.S. District Court for the Southern District of Iowa. On September 6, 2019, a shareholder filed a putative class action lawsuit in the U.S. District Court for the Southern District of New York against the Company, its Chief Executive Officer, and its Chief Financial Officer, seeking to represent a class of shareholders who acquired securities of the Company between May 10, 2018 and September 4, 2019. On September 12, 2019, a shareholder filed a putative class action lawsuit in the U.S. District Court for the Southern District of Iowa against the Company, its Chief Executive Officer, its Chief Financial Officer, and its Chairman of the Board seeking to represent a class of shareholders who acquired securities of the Company between January 31, 2018 and September 5, 2019. Both complaints allege that the defendants made materially false and/or misleading statements, and failed to disclose material adverse facts, about the Company's business, operations, and prospects. Both complaints assert claims under the federal securities laws and seek unspecified monetary damages and other relief. The defendants have not yet responded to either complaint but intend to vigorously oppose them. The Company expresses no opinion as to the ultimate outcome of these matters. Meredith Corporation is a diversified media company primarily focuses on publishing and broadcasting. The Company's publishing segment includes magazine and book publishing, marketing, interactive media, licensing, and other related operations. Meredith operates network-affiliated television stations and develops syndicated television programs. The company is based in Des Moines, Iowa. MID-SOUTH TRANSPORTATION: Boyland Seeks to Recover Unpaid OT Wages ------------------------------------------------------------------ CARLOS BOYLAND, individually and on behalf of all others similarly situated v. MID-SOUTH TRANSPORTATION MANAGEMENT, INC., Case No. 2:19-cv-02594-JPM-cgc (W.D. Tenn., Sept. 5, 2019), seeks to recover alleged unpaid overtime wages, liquidated damages or prejudgment interest, attorneys' fees and costs, and other legal and equitable relief under the Fair Labor Standards Act. Mid-South Transportation Management, Inc. is a company with its principal office located in Cincinnati, Ohio. Mid-South is the management company that employs the personnel to operate Memphis Area Transit Authority ("MATA"). The Defendant staffs, hires and manages bus operators for MATA buses, including Plaintiff Boyland and similarly situated bus operators.[BN] The Plaintiff is represented by: William B. Ryan, Esq. Janelle C. Osowski, Esq. DONATI LAW, PLLC 1545 Union Avenue Memphis, TN 38104 Telephone: (901) 278-1004 Facsimile: (901) 278-3111 E-mail: billy@donatilaw.com janelle@donatilaw.com MIDLAND CREDIT: R&R on Dismissal/Arbitration Bid in Barbosa Adopted ------------------------------------------------------------------- In the case, JACKELINE BARBOSA, MARK ANDERSON, and DOUGLASS BAKER, individually and on behalf of others similarly situated, Plaintiffs, v. MIDLAND CREDIT MANAGEMENT, INC., SCHREIBER/COHEN, LLC, and LUSTIG GLASER & WILSON P.C., Defendants, Civil Action No. 18-11997-NMG (D. Mass.), Judge Nathaniel M. Gorton of the U.S. District Court for the District of Massachusetts has entered an order accepting and adopting the Report and Recommendation on the Defendants' Motions to Dismiss and/or Compel Arbitration. The case is a putative class action suit pertaining to debt collection litigation pursued in state court. The Named Plaintiffs allegedly incurred credit card debt on accounts held with Barclays Bank Delaware. Midland Funding, LLC later acquired the Plaintiffs' accounts from Barclays, for whom Defendant Midland Credit Management ("MCM") is a servicer and agent. The Plaintiffs were subsequently sued by Midland Funding, allegedly at the direction of MCM, to collect outstanding credit card debt. Lawyer Defendants Schreiber and Lustig are the law firms that were retained by Midland Funding to sue the Plaintiffs for the outstanding debts. After consideration of the Plaintiffs objections thereto, Judge Gorton accepted and adopted the Report and Recommendation on the Defendants' Motions to Dismiss and/or Compel Arbitration. A full-text copy of the Court's Aug. 9, 2019 Order is available at https://is.gd/e1azC6 from Leagle.com. Jackeline Barbosa, individually and on behalf of others similarly situated, Plaintiff, represented by Charles M. Delbaum, National Consumer Law Center, Kenneth D. Quat -- kquat@quatlaw.com -- Quat Law Offices & Alexa L. Rosenbloom, Greater Boston Legal Services. Mark Anderson, individually and on behalf of others similarly situated, Plaintiff, represented by Kenneth D. Quat, Quat Law Offices & Alexa L. Rosenbloom, Greater Boston Legal Services. Midland Credit Management, Inc., Defendant, represented by Benjamin M. McGovern -- benjamin.mcgovern@hklaw.com -- Holland & Knight, LLP, Cory W. Eichhorn -- cory.eichhorn@hklaw.com -- Holland & Knight LLP, pro hac vice & Gordon P. Katz -- gordon.katz@hklaw.com -- Holland & Knight, LLP. Schreiber/Cohen, LLC, Defendant, represented by Alyssa A. Aquino -- AAquino@hinshawlaw.com -- Hinshaw & Culbertson LLP & Andrew M. Schneiderman -- aschneiderman@hinshawlaw.com -- Hinshaw & Culbertson LLP. MINOS DINER: Boos Sues Over Underpaid Minimum and Overtime Wages ---------------------------------------------------------------- KATELYN BOOS, DEINA GERGES, and EUGENE YANOVSKIY, individually and in behalf of all other persons similarly situated v. MINOS DINER, INC.; STAVROS BAKOUSSIS; MAGDY KHEIR; jointly and severally, Case No. 1:19-cv-05072 (E.D.N.Y., Sept. 5, 2019), alleges that the Defendants violated the Fair Labor Standards Act and they are liable to the Plaintiffs for unpaid or underpaid minimum wages and overtime compensation. Minos Diner, Inc., is a New York business corporation with its office in Richmond County. The Individual Defendants are owners, shareholders, officers, or managers of the Defendants' business. The Defendants' business is a full-service restaurant doing business as Woodrow Diner, and located at 655-210 Rossville Avenue, in Staten Island, New York.[BN] The Plaintiffs are represented by: John M. Gurrieri, Esq. Justin A. Zeller, Esq. LAW OFFICE OF JUSTIN A. ZELLER, P.C. 277 Broadway, Suite 408 New York, NY 10007-2036 Telephone: (212) 229-2249 Facsimile: (212) 229-2246 E-mail: jmgurrieri@zellerlegal.com jazeller@zellerlegal.com MISSISSIPPI: Hosemann Appeals Hopkins Suit Ruling to 5th Cir. ------------------------------------------------------------- Mississippi Secretary of State Delbert Hosemann filed an appeal from a Court ruling in the lawsuit entitled Dennis Hopkins, et al. v. Delbert Hosemann, Case No. 3:18-CV-188, in the U.S. District Court for the Southern District of Mississippi, Jackson. The appellate case is captioned as Dennis Hopkins, et al. v. Delbert Hosemann, Case No. 19-60662, in the U.S. Court of Appeals for the Fifth Circuit. As reported in the Class Action Reporter on Sept. 6, 2019, Secretary of State Delbert Hosemann also filed an appeal from a Court ruling in the lawsuit. That appellate case is styled as Dennis Hopkins, et al. v. Delbert Hosemann, Case No. 19-90024. Judge Daniel P. Jordan, III, previously granted the Plaintiffs' motion for class certification. The consolidated action (with ROY HARNESS, ET AL. v. DELBERT HOSEMANN, SECRETARY OF STATE OF MISSISSIPPI, Case No. 3:17-CV-791-DPJ-FKB) seeking to restore the voting rights of convicted felons is before the District Court on the Hopkins Plaintiffs' motion for class certification under Federal Rule of Civil Procedure 23. The Hopkins Plaintiffs seek class certification to challenge two sections of the Mississippi Constitution, Sections 241 and 253. Under Section 241, individuals who have been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement, or bigamy are ineligible to vote. And Section 253 allows the legislature to restore an individual's suffrage by a two-thirds vote of both houses, of all members elected. The Plaintiffs say the lifetime voting ban violates the Eighth Amendment's prohibition of cruel and unusual punishment and the Fourteenth Amendment, which only permits states to temporarily "abridge" an individual's right to vote based on participation in a crime. They also contend that the mechanism to restore voting rights violates the Equal Protection Clause of the Fourteenth Amendment and the First Amendment. The briefing schedule in the Appellate Case states that the Electronic Record on Appeal was due September 25, 2019.[BN] Plaintiffs-Appellees DENNIS HOPKINS, individually and on behalf of a class of all others similarly situated,, et al., are represented by: Janet A. Gochman, Esq. SIMPSON, THACHER & BARTLETT, L.L.P. 425 Lexington Avenue New York, NY 10017-3954 Telephone: (212) 455-2815 E-mail: jgochman@stblaw.com - and - Paloma Wu, Esq. SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, AL 36104 Telephone: (888) 414-7752 E-mail: paloma.wu@splcenter.org Defendant-Appellant SECRETARY OF STATE DELBERT HOSEMANN, in his official capacity, is represented by: Justin Lee Matheny, Esq. OFFICE OF THE ATTORNEY GENERAL 550 High Street Walter Sillers Building Jackson, MS 39201 Telephone: (601) 359-3825 Facsimile: (601) 359-2003 E-mail: jmath@ago.state.ms.us - and - Krissy C. Nobile, Esq. OFFICE OF THE ATTORNEY GENERAL P.O. Box 220 Jackson, MS 39205 Telephone: (601) 359-3824 E-mail: knobi@ago.state.ms.us MONOTYPE IMAGING: Faces Smith Class Action over Marvel Merger ------------------------------------------------------------- Monotype Imaging Holdings Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on September 17, 2019, that the company has been named as a defendant in a class action suit entitled, Raymond Smith v. Monotype Imaging Holdings, Inc., et al., Case No. 1:19-cv-01717. On July 25, 2019, Monotype Imaging Holdings Inc., a Delaware corporation (the "Company"), Marvel Parent, LLC, a Delaware limited liability company ("Parent"), and Marvel Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger Sub"), entered into an Agreement and Plan of Merger (the "Merger Agreement"), pursuant to which Merger Sub will be merged with and into the Company (the "Merger"), with the Company surviving the Merger as a wholly owned subsidiary of Parent. On August 26, 2019, the Company filed with the U.S. Securities and Exchange Commission (the "SEC") a preliminary proxy statement (the "Proxy Statement") related to a special meeting of the Company’s stockholders to be held for the purpose of, among other things, voting on the Merger. On September 12, 2019, a purported stockholder of the Company filed a class action complaint in the United States District Court for the District of Delaware, captioned Raymond Smith v. Monotype Imaging Holdings, Inc., et al., Case No. 1:19-cv-01717 (the "Complaint"), naming as defendants the Company and each member of the Company's board of directors. Among other things, the Complaint alleges that the Proxy Statement is materially incomplete and misleading by failing to disclose in violation of Section 14(a) and Section 20(a) of the Exchange Act, as well as Rule 14a-9 promulgated thereunder, allegedly material information concerning (i) certain financial projections prepared by the Company's management and summarized in the Proxy Statement and (ii) certain inputs used in the financial analyses conducted by J.P. Morgan Securities LLC in connection with rendering its fairness opinion to the Company's board of directors and summarized in the Proxy Statement. The relief sought in the Complaint includes equitable relief, including among other things, to enjoin the shareholder vote on the Merger unless and until certain additional and allegedly material information is disclosed to the Company's stockholders, to direct the defendants to account to plaintiff for all alleged damages suffered as a result of their alleged wrongdoing and to award plaintiff damages arising from proceeding with the Merger and the cost and disbursements of the Complaint, including reasonable attorneys' and expert fees and expenses. The Company cannot predict the outcome of the Complaint, nor can the Company predict the amount of time and expense that will be required to resolve the Complaint. The Company believes the Complaint is without merit and the Company and the individual defendants intend to vigorously defend against the Complaint and subsequently filed similar actions. Monotype Imaging Holdings Inc. provides text imaging solutions. The Company offers technologies and fonts enable the display and printing of digital text on a variety of consumer electronic devices, including laser printers, digital copiers, mobile phones, digital televisions, set-top boxes, and digital cameras as well as in numerous software applications and operating systems. The company is based in Woburn, Massachusetts. MONSANTO CO: Glackin Sues Over Herbicide Side Effects ----------------------------------------------------- Jeffrey Glackin and Deborah Glackin, Plaintiff, vs. Monsanto Company, Defendant, Case No. 19-cv-02100 (M.D. Fla., August 22, 2019), seeks compensatory and punitive damages, costs, expert fees, disbursements and attorneys' fees incurred in prosecuting this action, disgorgement of profits, pre-judgment and post-judgment interest at the maximum rate and such other relief resulting from negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (R), containing the active ingredient glyphosate. Jeffrey Glackin developed non-Hodgkin's Lymphoma in January 2018 as a direct and proximate result of being exposed to Roundup, notes the complaint. Monsanto is a multinational agricultural biotechnology corporation based in St. Louis, Missouri. It is the world's leading producer of glyphosate, the active ingredient in Roundup, a broad-spectrum herbicide used to kill weeds and grasses known to compete with commercial crops grown around the globe.[BN] The Plaintiffs are represented by: Andrew T. Kagan, Esq. KAGAN LEGAL GROUP 295 Palmas Inn Way, Suite 6 Palmanova Plaza Humacao, PR 00791 Tel: (939) 220-2424 Fax: (939) 220-2477 - and - Jennifer A. Moore, Esq. MOORE LAW GROUP, PLLC 1473 South 4th Street Louisville, KY 40208 Tel: (502) 717-4080 Fax: (502) 717-4086 Email: jennifer@moorelawgroup.com MONSANTO COMPANY: Kubacki Sues over Sale of Herbicide Roundup ------------------------------------------------------------- Mark Joseph Kubacki, the Plaintiff, v. MONSANTO COMPANY, the Defendants, Case No. 3:19-cv-05521-VC (D. Minn., Aug. 15, 2019), seeks to recover damages suffered by the Plaintiffs, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiff maintains that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. Mark Joseph Kubacki's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiff brings this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiff is represented by: Charles H. Johnson, Esq. LAW OFFICES OF CHARLES H. JOHNSON, PA 2599 Mississippi Street New Brighton, MN 55112-5060 Telephone: (651) 633-5685 Facsimile: (651) 633-4442 E-mail: bdehkes@charleshjohnsonlaw.com NORWOOD SUBARU: Heckman Seeks Overtime Pay for Sales Staff ---------------------------------------------------------- KEATON HECKMAN, on behalf of himself and ail others similarly situated, the Plaintiff, vs. NORWOOD SUBARU, INC. (d/b/a Clay Subaru); SCOTT D. CLAY; and JAMES T. SARNO, SR., the Defendants, Case No. 19-1127 (Mass. Super., Sept. 4, 2019), seeks damages based on Defendants' failure to pay wages under the Massachusetts Wage Laws. The Plaintiff worked more than 40 hours in at least one week during the class. The Plaintiff worked on at least one Sunday or covered holiday during the period. The Defendants did not pay Plaintiff, or members of the Class, overtime pay. The Defendants also did not pay premium pay for Sundays and holidays. The Plaintiff worked as a salesperson for Defendants from approximately February 1, 2017 through December 2017. The Defendants operate a car dealership located in Norwood, Massachusetts.[BN] Attorneys for the Plaintiff are: Josh Gardner, Esq. Nicholas J. Rosenberg, Esq. GARDNER & ROSENBERG P.C. One State Street, Fourth Floor Boston, MA 02109 Telephone: 617-390-7570 E-mail: josh@gardnerrosenberg.com NOVUS THERAPEUTICS: Jackie888 Class Suit Underway ------------------------------------------------- The case styled Jackie888, Inc. v. Tokai Pharmaceuticals, Inc., et al., remains pending, Novus Therapeutics, Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2019. On August 19, 2016, a purported stockholder of Tokai filed a putative class action lawsuit in the Superior Court of the State of California, County of San Francisco, entitled Jackie888, Inc. v. Tokai Pharmaceuticals, Inc., et al., No. CGC-16-553796. The plaintiff sought to represent a class of purchasers of Tokai common stock in or traceable to Tokai's IPO. On October 19, 2016, the defendants moved to dismiss or stay the action on grounds of forum non conveniens, and certain individual defendants moved to quash the plaintiff's summons for lack of personal jurisdiction. On February 27, 2017, the Superior Court entered an order granting defendants' motion to stay the lawsuit. On May 24, 2018, the plaintiff dismissed its complaint in the Superior Court of the State of California and refiled its complaint in the Business Litigation Session of the Superior Court Department of the Suffolk County Trial Court, Massachusetts ("Massachusetts State Court"). On June 28, 2018, plaintiff Wu moved to consolidate the Jackie888 Action with the action styled, Wu v. Tokai Pharmaceuticals, Inc., et al., 16-3725 BLS ("Wu Action"). On June 29, 2018, plaintiffs Jackie888 and Wu filed a consolidated complaint. On July 6, 2018, the Jackie888 Action was consolidated with the Wu Action. The Jackie888 Action and Wu Action were later de-consolidated on May 16, 2019 when the Wu Action was dismissed with prejudice. In the remaining Jackie888 action, plaintiff's motion for class certification was due August 22, 2019. Headquartered in Irvine, California, Novus Therapeutics, Inc., is a pharmaceutical company that focuses on developing products for patients with disorders of ear, nose, and throat. Its lead product is (OP-02), a surfactant-based combination drug product for patients at risk for, or with, otitis media (OM) (middle ear inflammation with or without infection). The company also has a foam-based drug delivery technology (OP-01) that could be used to deliver drugs into the ear, nose, and sinus cavities. ORACLE CORP: Oral Argument in Calif. Class Suit Set for Oct. 17 --------------------------------------------------------------- Oracle Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on September 13, 2019, for the quarterly period ended August 31, 2019, that the motion to dismiss the class action suit pending before the U.S. District Court for the Northern District of California is scheduled for oral argument on October 17, 2019. On August 10, 2018, a putative class action, brought by an alleged stockholder of Oracle, was filed in the U.S. District Court for the Northern District of California against the company, its Chief Technology Officer, its two Chief Executive Officers, two other Oracle executives, and one former Oracle executive. On March 8, 2019, plaintiff filed an amended complaint. Plaintiff alleges that the defendants made or are responsible for false and misleading statements regarding Oracle's cloud business. Plaintiff further alleges that the former Oracle executive engaged in insider trading. Plaintiff seeks a ruling that this case may proceed as a class action, and seeks damages, attorneys' fees and costs, and unspecified declaratory/injunctive relief. On April 19, 2019, defendants moved to dismiss plaintiff's amended complaint. This motion is fully briefed and is scheduled for oral argument on October 17, 2019. Oracle said, "We believe that we have meritorious defenses against this action, and we will continue to vigorously defend it." Oracle Corporation develops, manufactures, markets, sells, hosts, and supports application, platform, and infrastructure solutions for information technology (IT) environments worldwide. The company provides services in three layers of the cloud: Software as a Service, Platform as a Service, and Infrastructure as a Service. The company was founded in 1977 and is headquartered in Redwood City, California. OREGON: Court Sets Hours for Deposition Testimonies in ADA Suit --------------------------------------------------------------- The United States District Court for the District of Oregon, Eugene Division, issued an Order and Opinion setting Number of Hours for Non-Expert Deposition testimonies in the case captioned WYATT B. and NOAH F. by their next friend Michelle McAllister; KYLIE R. and ALEC R. by their next friend Kathleen Megill Strek; UNIQUE L. by her next friend Annette Smith; SIMON S. by his next friend Paul Aubry; RUTH T. by her next friend Michelle Bartov; BERNARD C. by his next friend Ksen Murry; NAOMI B. by her next friend Kathleen Megill Strek; and NORMAN N. by his next friend Tracy Gregg, individually and on behalf of all others similarly situated, et al., Plaintiffs, v. KATE BROWN, Governor of Oregon in her official capacity; FAIRBORZ PAKSERESHT, Director, Oregon Department of Human Services in his official capacity; JANA MCLELLAN, Interim Director, Child Welfare in her official capacity, and OREGON DEPARTMENT OF HUMAN SERVICES, Defendants. No. 6:19-cv-000556-AA. (D. Or.). Plaintiffs, various minor children and their next friends, bring this putative class action against the State of Oregon Department of Human Services and state officers alleging violations of their rights under the First, Ninth, and Fourteenth Amendments to the United States Constitution, as well as violations of the Adoption Assistance and Child Welfare Act, Americans with Disabilities Act and Rehabilitation Act. First, the parties dispute the total number of hours that should be allowed for non-expert depositions. Plaintiffs argue that the total number of hours for deposition should be 120 hours while defendants prefer 100 hours. The parties have agreed that there will be no limitation on the total number of depositions but instead that there should be an initial limit on the number of hours for depositions per side. Either party would still be free to seek further depositions beyond such a limit with leave of the Court for good cause shown. In federal civil cases, there is a presumptive limit of ten depositions per party, absent stipulation by the parties or leave of the court. Here, the parties have stipulated to exceed the maximum number of allowable depositions. The Court finds, at this time, that plaintiffs have made no particularized showing of the need for an additional twenty hours of depositions other than generally noting that this is a complex case. Thus, at this time, the number of hours per side for non-expert depositions shall be initially set at 100 hours per side. As mentioned during the most recent status conference, however, the Court will work to ensure that ample, non-cumulative, discovery is allowed for both parties if this amount of time proves insufficient. The parties are reminded that should work together in good faith to resolve any requests for additional time for depositions. The second set of issues before the Court relates to the parties' dispute regarding their current Stipulated Protective Order (SPO). Plaintiffs argue that the Court should amend that order with respect to the type of documents which may be designated as Confidential or Attorney's Eyes Only (AEO) as well as the use of information derived from such confidential or AEO information. As to the first matter, the SPO currently provides a set of procedures regarding documents that are designated as confidential and AEO. The SPO provides that the parties specifically do not intend to designate the following types documents as confidential or AEO: de-identified aggregate data, internal DHS communications that do not contain individually identifiable information, and non-privileged policy documents and drafts of such documents. Plaintiffs propose adding to this list any documents that do not contain personally identifying information about the named plaintiffs, class members, their family members or foster parents. Defendants agree that most of the documents and information that will require confidential or AEO designation will be information mentioned in plaintiffs' proposed amended language. However, they also raise concerns that such a broad amendment would limit their discretion to protect information which might identify third parties who report abuse. The Court takes these concerns seriously and notes that the parties are required to designate documents as confidential or AEO in good faith. Therefore, the Court will not add plaintiff's proposed language to the SPO at this time. The Court stands ready to adjudicate any disputed designations if necessary. Finally, plaintiffs request that the Court amend the SPO to allow them to use information derived from confidential reports in their public filings before this Court. They argue that Paragraphs 2, 7 and 8 of the SPO presently requires that all information derived from the confidential documents, that is, from the case records be filed under seal and only disclosed to designated individuals, including the Court. Plaintiffs complain that under this language they would be unable to discuss their personal stories relating to their claims against defendants. They argue that this would allow defendants to conduct largely secret trial on a matter of significant public importance. Plaintiffs argue that any concerns about safeguarding their identities, the identities of family members, and other protected parties can be remedied by the use pseudonyms and redacting individually identifiable information such as birth dates. A party seeking to seal a judicial record bears the burden of overcoming this strong presumption by articulating compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure such as the public interest in understanding the judicial process and significant public events. In balancing the interests mentioned above with defendants concerns about safeguarding the identities of the named plaintiffs, their families, potential class members, and third party reports of abuse, the Court has determined that the use of pseudonyms and redaction, which is routinely used in other federal and state cases dealing with minors, is sufficient to protect the identity of those parties. Accordingly, the Court shall amend the SPO to allow the parties to use information derived from confidential and AEO documents in their public filings in this litigation. In conclusion, the total number of hours for non-expert deposition testimony is set initially at 100 hours per side. The Court will enter an Amended Protective Order which shall not change the agreed procedures for designation of information as confidential or AEO. The amended order shall allow the parties to use information derived from confidential reports in public filings in this litigation. A full-text copy of the District Court's September 12, 2019 Order and Opinion is available at https://tinyurl.com/y29k4ujh from Leagle.com. Wyatt B., by their next friend Michelle McAllister, Noah F., by their next friend Michelle McAllister, Kylie R., by their next friend Kathleen Megill Strek, Alec R., by their next friend Kathleen Megill Strek, Unique L., by her next friend Annette Smith, Simon S., by his next friend Paul Aubry, Ruth T., by her next friend Michelle Bartov, Bernard C., by his next friend Ksen Murry, Naomi B., by her next friend Kathleen Megill Strek & Norman N., by his next friend Tracy Gregg, individually and on behalf of all others similarly situated, Plaintiffs, represented by Anastasia Benedetto , A Better Childhood, pro hac vice, Dawn J. Post - dpost@abetterchildhood.org - A Better Childhood, pro hac vice, Gregory A. Chaimov - gregorychaimov@dwt.com - Davis Wright Tremaine, LLP, Marcia Robinson Lowry , A Better Childhood, 355 Lexington Ave Fl 16 New York, NY, 10017-6609, pro hac vice, Emily R. Cooper - ecooper@droregon.org - Disability Rights Oregon, Paul J.C. Southwick - paulsouthwick@dwt.com - Davis Wright Tremaine, LLP & Thomas Stenson - tstenson@droregon.org - Disability Rights Oregon. Kate Brown, Governor of Oregon in her official capacity, Fariborz Pakseresht, Jana McLellan, Interim Director, Child Welfare in her official capacity & Oregon Dept. of Human Services, Defendants, represented by Carla Scott , Oregon Department of Justice, Anna Marie Joyce -annajoyce@markowitzherbold.com - Markowitz Herbold PC, David B. Markowitz , Markowitz Herbold PC, Harry B. Wilson , Markowitz Herbold PC, Laura R. Salerno Owens , Markowitz Herbold PC, Lauren F. Blaesing , Markowitz Herbold PC, 1455 SW Broadway, Suite 1900, Portland, OR 97201& Sheila H. Potter , Oregon Department of Justice. PARADIS TO GO: Does not Properly Pay Workers, Ortega Suit Says -------------------------------------------------------------- EUTIQUIO VASQUEZ ORTEGA, on behalf of himself, and other employees similarly situated, Plaintiff, v. PARADIS TO GO LLC, and KIMBERLY PARADIS and MICKAEL PARADIS, individually, Defendants, Case No. 1:19-cv-08593 (S.D. N.Y., Sept. 16, 2019) is an action brought by Plaintiff, alleging violations of the Fair Labor Standards Act, as amended, and the New York Labor Law, arising from Defendants' (i) failure to pay non-exempt employees proper overtime compensation; (ii) misappropriating and unlawfully retaining tips; (iii) illegally retaining service charges purported to be gratuities from tipped employees; and (iv) illegally withholding and/or failing to pay wages and tips. Plaintiff typically worked between 45 and 50 hours per week, and occasionally in excess of 50 hours per week. Throughout the entirety of Plaintiff's employment, he was not paid proper overtime compensation, asserts the complaint. Specifically, the Defendants failed to pay Plaintiff overtime compensation; misappropriated and/or withheld Plaintiff,'s tips; misappropriated and/or withheld from Plaintiff service charges reported to be gratuities; reimburse Plaintiffs for money expended for transportation; and failed to pay lawfully earned overtime compensation in contravention of the FLSA and New York Labor Law. Eutiquio Vasquez Ortega was employed by Defendants in New York County, New York, as a food preparer, dishwasher, cleaner, and delivery person at Defendants' restaurant. Defendants own and operate a full restaurant and catering business under the "Paradis to Go" brand, which includes providing corporate and private customers with a full array of food and catering options.[BN] The Plaintiff is represented by: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 10 Grand Central 155 East 44th Street - 6th Floor New York, NY 10017 Phone: (212) 209-3933 Fax: (212) 209-7102 Email: info@jcpclaw.com PEAK RESORTS: Faces Wheby Class Suit Related to Vail Merger ----------------------------------------------------------- Peak Resorts, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on September 13, 2019, for the quarterly period ended July 31, 2019, that the company has been named as a defendant in a putative class action and derivative complaint initiated by Earl M. Wheby Jr. On July 20, 2019, Peak Resorts, Inc. entered into an Agreement and Plan of Merger (the "Merger Agreement") with Vail Holdings, Inc., a Colorado corporation ("Parent"), VRAD Holdings, Inc., a Missouri corporation and direct, wholly-owned subsidiary of Parent ("Merger Sub"), and, solely for the purposes stated in Section 9.14 of the Merger Agreement, Vail Resorts, Inc., a Delaware corporation ("Vail Resorts"), relating to the proposed acquisition of the Company by Parent. On August 28, 2019, an alleged shareholder of the Company, Earl M. Wheby Jr., filed a putative class action and derivative complaint in St. Louis County Circuit Court, 21st Judicial Circuit of Missouri, against each of the members of the Company's board of directors, Vail Resorts, Parent and Merger Sub, purportedly in relation to the Company's entry into the Merger Agreement. The complaint asserts a claim for breach of fiduciary duty against the defendants. The complaint alleges, among other things, that the directors breached their fiduciary duties in connection with the Merger due to certain deal protection provisions in the Merger Agreement and disseminated a materially misleading proxy statement. The complaint seeks, among other things, an order enjoining the defendants from proceeding with, consummating or closing the proposed Merger; in the event the proposed Merger is consummated, an order rescinding it and setting it aside or awarding rescissory damages; and unspecified attorneys' and experts' fees. Peak Resorts, Inc. owns and operates resorts. The Company offers services which includes skiing, snow boarding, swimming, terrain parks, tubing, dining, lodging services, as well as various summer activities. Peak Resorts serves clients in the United States. The company is based in Wildwood, Missouri. PIZZA HUT: $500K Settlement in Hobon FLSA Suit Has Prelim Approval ------------------------------------------------------------------ In the case, JOHN HOBON, individually and on behalf of all others similarly situated, Plaintiff, v. PIZZA HUT OF SOUTHERN WISCONSIN, INC., d/b/a PIZZA HUT, et al., Defendants, Case No. 17-cv-947-slc (W.D. Wis.), Magistrate Judge Stephen L. Crocker of the U.S. District Court for the Western District of Wisconsin granted the parties' joint motions for (i) preliminary approval of the class and collective action settlement agreement, (ii) certification of the Rule 23 class, (iii) conditional certification of an amended FLSA collective class, (iv) appointment of John Hobon as the class representative and the Hawks Quindel, S.C. law firm as the class counsel, and (v) approval of the class notice and settlement procedure outlined in the parties' agreement. Hobon brings class action and collective action claims against Pizza Hut, and its Wisconsin and Illinois affiliates, alleging that the Defendants violated the Fair Labor Standards Act ("FLSA"), and Wisconsin and Illinois wage and hour laws by subjecting its delivery drivers to a vehicle reimbursement policy that failed to reasonably approximate their actual expenses. On Jan. 10, 2019, Magistrate Judge Crocker conditionally certified a FLSA collective action. Now, the parties have reached a settlement agreement and have filed a joint motion for preliminary approval of the settlement agreement negotiated by the parties, certification of the Rule 23 class, conditional certification of an amended FLSA collective class, appointment of John Hobon as the class representative and the Hawks Quindel, S.C. law firm as class counsel, and approval of the class notice and settlement procedure outlined in the parties' agreement. The settlement applies to the following classes: a. FLSA Collective Action Members: All persons who have worked as a delivery driver for the Defendants between Dec. 20, 2014 and March 14, 2019 whose names appear on Exhibit 11 to the Settlement Agreement and who have timely returned Consent Forms (Collective Members); and b. Rule 23 Class Members: All persons who have worked as a delivery driver for the Defendants between Dec. 20, 2014 and March 14, 2019, whose names appear on Exhibit 1 to the Settlement Agreement and who do not timely exclude themselves (Class Members). The parties' agreement provides the following with respect to pay-outs for the class members: a. The Defendants will pay a total of $500,000 into a Settlement Fund, of which $262,887.06 will be split equally into a Class Fund and a Collective Fund, meaning that each fund will receive $131,443.53; b. The putative members of the FLSA Collective Class will be given an opportunity to opt-in to the FLSA settlement, if they have not already done so; c. The members of the Rule 23 Class will receive settlement funds unless they file a valid and timely request for exclusion; d. Each putative Rule 23 class member will be allocated a pro-rata share of the Class Fund, and those class members who do not exclude themselves will be paid their allocated pro-rata share; e. Two-thirds of the payout to Rule 23 class members will be treated as wages and the remaining one-third will be treated as income but not wages; f. Each putative FLSA collective member will be allocated a pro-rata share of the Collective Fund, and those collective members who opt-in to the settlement will be paid their pro-rata share; g. One-half of each payout to FLSA collective members will be treated as wages and the other half will be treated as income but not wages; h. Any portion of the Class or Collective Funds attributable to uncashed checks will be mailed to the parties' elected Cy Pres recipient, the Employee Rights Advocacy Institute for Law & Policy; i. Any funds allocated to individuals that are not claimed (due to individuals who do not opt-in to the settlement or who timely exclude themselves from the settlement) will revert to the Defendants; j. The Class Counsel will apply for attorneys' fees in the amount of $166,666.67 and costs not to exceed $28,946.78, to be paid from the Settlement Fund; k. The Class counsel will apply for the following service payments to individuals who assisted the class counsel in resolving the case: $10,000 to the class representative, John Hobon; $1,000 each to Chase Putnam, Ashton Johnson, Thomas Peterson, and Peter Shep; and $500 each to Marshall Barnes, John Britt, Logan McHone, Andrew Taft, and Marina Younger; and l. $25,000 of the Settlement Fund will be set aside in a contingency and ongoing cost fund, with any unused portion to be reallocated to the Class Fund and Collective Fund on a pro-rata basis. The Counsel have identified approximately 1,800 class members. After deducting attorneys' fees, costs, contingency fund and service payments, the average pro rata distribution to class members will be $144.03. Based upon his review of the parties' joint motion for preliminary approval of the class and collective action settlement agreement, as well as the materials submitted in connection with the motion, preliminary approval of the settlement is granted by Magistrate Judge Crocker. For settlement purposes only, he granted the parties' stipulation to class certification and certified the following class under Fed. R. Civ. P. 23(e): All persons who have worked as a delivery driver for the Defendants between Dec. 20, 2014 and March 14, 2019, whose names appear on Exhibit 1 to the Settlement Agreement. For settlement purposes only, he also granted the parties' amended stipulation, and conditionally certified the following Collective Class under 29 U.S.C. Section 216(b): All persons who have worked as a delivery driver for the Defendants between Dec. 20, 2014 and March 14, 2019 whose names appear on Exhibit 1 to the Settlement Agreement and who have timely returned Consent Forms. The Judge appointed the law firm of Hawks Quindel S.C. as the class counsel. He approved the proposed notice program, proposed Notices of Class Action Settlement, and the Consent. Per the settlement agreement, the claims administrator must send notice to the classes within 15 days of the date of the Order. The Class counsel will file a petition for approval of attorney fees and costs no later than Nov. 8, 2019. The Class counsel will also file any supplemental brief in support of final approval of the settlement agreement or in response to any objections to the petition for attorney fees and costs no later than Nov. 27, 2019. The final fairness hearing is scheduled for Dec. 12, 2019, at 1:30 p.m. A full-text copy of the Court's Aug. 9, 2019 Opinion and Order is available at https://is.gd/09AsNT Leagle.com. John Hobon, Individually and on behalf of all others similarly situated, Plaintiff, represented by Larry A. Johnson -- ljohnson@hq-law.com -- Hawks Quindel, S.C., Summer Hart Murshid -- smurshid@hq-law.com -- Hawks Quindel Ehlke & Perry, S.C. & Timothy Peter Maynard -- tmaynard@hq-law.com. Pizza Hut of Southern Wisconsin, Inc., d/b/a Pizza Hut & Rockford Pizza, LLC, Defendants, represented by Brian C. Spahn -- bspahn@gklaw.com -- Godfrey & Kahn, Joshua Lee Johanningmeier -- jjohanningmeier@gklaw.com -- Godfrey & Kahn S.C., Erin M. Cook -- mcook@gklaw.com -- Godfrey & Kahn, S.C. & Rebeca M. Lopez -- rlopez@gklaw.com -- Godfrey & Kahn, S.C. MSG Delco, LLC, Pizza Hut of Madison, Inc., Pizza Hut of Rock County, Inc., Divo Enterprises, Inc., Pizza Hut of Waunakee, Inc., Pizza Hut of Platteville, Inc., Pizza Hut of Mauston, LLC & Southing Grange, Inc., Defendants, represented by Brian C. Spahn, Godfrey & Kahn. PRIDE CHEVROLET: Goodwin Seeks Overtime Pay for Sales Staff ----------------------------------------------------------- MYLES GOODWIN, on behalf of himself and all others similarly situated, the Plaintiff, vs. PRIDE CHEVROLET, INC., and SUZANNE IOV ANNA, the Defendants, Case No. 1977CV01823D (Mass. Super., Sept. 4), seeks damages based on Defendants' failure to pay wages under Massachusetts Wage Laws. According to the complaint, the Defendants did not base its pay to Plaintiff, or members of the Class, on the amount of overtime hours, or the amount of hours worked on Sundays and holidays. The Plaintiff worked for Defendants as a salesperson from approximately April 2018 to May 2019. The Defendants operate an automobile dealership in Lynn, Massachusetts.[BN] Attorneys for the Plaintiff are: Josh Gardner, Esq. Nicholas J. Rosenberg, Esq. GARDNER & ROSENBERG P.C. One State Street, Fourth Floor Boston, MA 02109 Telephone: 617-390-7570 E-mail: josh@gardnerrosenberg.com Q CLUB: Back-Charging & Shared Costs Ruling in Dear Suit Affirmed ----------------------------------------------------------------- In the cases, GARY DEAR, Plaintiff-Appellee, v. Q CLUB HOTEL, LLC, Defendant-Appellant. GARY DEAR, Plaintiff-Appellant, v. Q CLUB HOTEL, LLC, Defendant-Appellee, Case Nos. 17-13127, 17-14285 (11th Cir.), Judge Kevin Christopher Newsom of the U.S. Court of Appeals for the Eleventh Circuit affirmed (i) the district court's adverse determination of the back-charging issue, the jury's verdict on the Shared Costs issue; and (ii) the district court's denial of Dear's new-trial motion. The case concerns a contract dispute between Q Club -- the entity that operates the condominium-hotel at the Hilton Fort Lauderdale Beach Resort—and a class of condo owners over the meaning of the "Declaration" that governs the parties' relationship. The focus is on the Declaration of Q Club Resort and Residences Condominium's cost-sharing arrangement for the maintenance of certain amenities that aren't tied to any particular condo unit -- expenses that the Declaration aptly calls "Shared Costs." A class of Unit Owners ("Dear", after the Lead Plaintiff) filed the action in Florida state court, and Q Club successfully removed to federal court pursuant to the Class Action Fairness Act. Dear's complaint asserted (1) that the Declaration doesn't permit Q Club to "back charge" for costs incurred but not assessed and (2) that Q Club's new methodology for determining Shared Costs includes items that it shouldn't. The first issue is called the "back-charging" question and the second is the "Shared Costs" question. The litigation commenced soon after Q Club announced that it would change the methodology that it uses to calculate these Shared Costs. The new methodology, Q Club explained, would apply not only on a going-forward basis but also retroactively. That meant, in effect, that the owners would be re-billed for assessments that they had paid (or as Q Club sees it, underpaid) in years past. The owners' complaint alleged that Q Club's new methodology breached the Declaration as applied both retroactively and prospectively. The district court agreed with the first contention, but a jury disagreed with the second. The parties now appeal the respective judgments against them. The owners separately argue that the district court erred by denying their request for a new trial based on what they say constitutes newly discovered evidence that could have swayed the jury on the prospective-application question. From how they are initially "imposed" to the way they can be "revised," it's clear to Judge Newsom that a given year's "annual charges" may not be retroactively changed in future years. Rather, when the Declaration speaks of "revised" annual charges, it contemplates that the revisions will occur within the year that the costs are incurred. This reading, he thinks, is faithful not only to isolated snippets of the Declaration's text, but also to Section 12 when considered as a whole. Because neither the "annual charge" nor "other charge" heading fits the bill, the Judge concludes that the district court correctly held that the Declaration doesn't permit the sort of back-charging that Q Club advocates. Q Club complains that the Court's reading renders the agreement, "illogical, unjust, and unfair." But it's "not the function of the courts to rewrite a contract or interfere with the freedom of contract or substitute their judgment for that of the parties thereto in order to relieve one of the parties from the apparent hardship of an improvident bargain." The Judge declines to stretch the Declaration's language in an effort to relieve Q Club of the "hardship" that stems from what appears to have been its own miscalculation. The Judge turns, then, to Dear's cross-appeal. Dear contends that the district court erred by submitting the Shared Costs issue to the jury. Alternatively, he says that even if it was proper to leave some interpretive matters to the jury, the court should have better guided the jury's decision-making process by giving a few additional jury instructions. And finally, Dear asserts that he discovered new evidence after the trial that entitles him to a new trial. The Judge finds no reversible error. First, Dear hasn't established that the district court's failure to give the instruction "resulted in prejudicial harm." He hasn't, that is, explained why, but for this failure, the jury could have come out the other way -- let alone why he is entitled to judgment as a matter of law. Second, it's difficult to see how Dear could have been prejudiced by the district court's instruction. The question whether the Declaration permits Q Club to apply its methodology retroactively simply has no bearing on whether the methodology is legitimate in the first place. Finally, the district court was well within its discretion to deny Dear's motion for a new trial. The new evidence wouldn't "probably produce a different result" at a new trial. What Williams said in 2010 has no bearing on -- and certainly doesn't contradict -- Pagliery's testimony, which described Q Club's practice after it changed its methodology in 2013. To recap, Judge Newsom holds (1) that the district court properly concluded that the Declaration doesn't permit back-charging, (2) that the district court didn't reversibly err in submitting the Shared Costs issue to the jury or in the way that it instructed the jury, and (3) that Dear hasn't met his burden for requesting a new trial because the "new" evidence wouldn't likely produce a different result. Accordingly, he affirmed across the board. A full-text copy of the Court's Aug. 9, 2019 Order is available at https://is.gd/mqNmYU from Leagle.com. Mark S. Fistos -- mark@pathtojustice.com -- for Plaintiff-Appellee. Douglas C. Broeker, for Plaintiff-Appellee. Howard S. Marks, for Defendant-Appellant. Ronald Pena -- rpena@hinshawlaw.com -- for Defendant-Appellant. Robert A. Sweetapple -- pleadings@sweetapplelaw.com -- for Plaintiff-Appellee. Steven R. Jaffe -- steve@pathtojustice.com -- for Plaintiff-Appellee. Matthew Douglas Weissing -- matt@pathtojustice.com -- for Plaintiff-Appellee. Laurence Litow, for Defendant-Appellant. Eddie Travis Ramey, for Defendant-Appellant. RADIANT LOGISTICS: Dismissal of Barahona Class Suit Under Appeal ---------------------------------------------------------------- Radiant Logistics, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on September 12, 2019, for the fiscal year ended June 30, 2019, that a notice of appeal has been filed from a court decision in the class action suit entitled, Ingrid Barahona v. Accountabilities, Inc. d/b/a/ Accountabilities Staffing, Inc., Radiant Global Logistics, Inc. and DBA Distribution Services, Inc. On October 25, 2013, plaintiff Ingrid Barahona filed a purported class action lawsuit in the Superior Court of the State of California against Radiant Global Logistics, Inc. ("RGL") and DBA Distribution Services, Inc. ("DBA", a wholly-owned subsidiary) (collectively referred to as the "Company"), and two third-party staffing companies (collectively with the Company, the "Staffing Defendants") with whom RGL and DBA contracted for temporary employees. In the lawsuit, Ms. Barahona, on behalf of herself and the putative class, sought damages and penalties under California law, plus interest, attorneys' fees, and costs, along with equitable remedies, alleging that she and the putative class were the subject of unfair and unlawful business practices, including certain wage and hour violations relating to, among others, failure to provide meal and rest periods, failure to pay minimum wages and overtime, and failure to reimburse employees for work-related expenses. Ms. Barahona alleged that she was jointly employed by the staffing companies and RGL and DBA. RGL and DBA denied Ms. Barahona's allegations in their entirety, denied that they were liable to Ms. Barahona or the putative class members in any way, and vigorously defended against these allegations based upon a preliminary evaluation of applicable records and legal standards. If Ms. Barahona were to prevail on her allegations on substantially all claims against the Company, the Company could be liable for uninsured damages in an amount that, while not significant when evaluated against either the Company's assets or current and expected level of annual earnings, could be material when judged against the Company's earnings in the particular quarter in which any such damages arose, if at all. On February 19, 2019, the Company filed a Motion to Dismiss the class action case, which the court granted on March 14, 2019, and subsequently entered judgment in favor of the Company on April 30, 2019. On May 15, 2019, Plaintiff filed a Notice of Appeal, seeking appellate review. The trial judge's decision to dismiss the case and enter judgment in favor of the Company will be reviewed by the Second District Court of Appeal for the State of California. Radiant Logistics said, "To date, however, the Court of Appeal has not issued an appellate briefing schedule. At this time, the Company is unable to express an opinion as to the likely outcome of the matter." Radiant Logistics, Inc. operates as a third-party logistics and multi-modal transportation services company primarily in the United States and Canada. Radiant Logistics, Inc. was founded in 2001 and is headquartered in Bellevue, Washington. RENSSELAER POLYTECHNIC: Court Dismisses Workers' Parking Cost Suit ------------------------------------------------------------------ The Supreme Court, Albany County issued an Opinion granting Defendant's Motion for Summary Judgment in the case captioned JESSICA O. OTITIGBE, ON BEHALF OF HERSELF and ALL OTHERS SIMILARLY SITUATED, Plaintiff, v. RENSSELAER POLYTECHNIC INSTITUTE, Defendant. 904767-18 (Sup. Ct., Albany County). Plaintiff Jessica O. Otitigbe is a former employee of defendant Rensselaer Polytechnic Institute (RPI). She commenced this putative class-action lawsuit on behalf of herself and others similarly situated on the basis of allegations that RPI violated Labor Law Section 193 by wrongfully deducting the cost of parking from employees' wages. RPI argues principally that its parking program complies with Labor Law Section 193(1)(a) and (2) because the program is an employer sponsored pre-tax contribution plan approved by the IRS that is administered in compliance with applicable rules and regulations. Thus, RPI contends that it need not demonstrate compliance with Labor Law Section 193(1)(b). In any event, RPI maintains that the challenged deductions also are authorized under Labor Law Section 193(1)(b) as discounted parking and/or payments for the benefit of employees. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact and the failure to make such a showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. If this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. RPI's principal argument in support of summary judgment is that its parking program complies with Labor Law Section 193(1)(a) and (2) because the challenged deductions are made in accordance with an employer sponsored pre-tax contribution plan approved by the IRS. Legal Framework Labor Law Section 193(1)(a) allows wage deductions made in accordance with the provisions of any law or any rule or regulation issued by any governmental agency. Labor Law Section 193(2) further provides that deductions made in conjunction with an employer sponsored pre-tax contribution plan approved by the IRS, shall be considered to have been made in accordance with Labor Law Section 193(1)(a). Thus, an employer-sponsored pre-tax contribution plan is a permitted wage deduction under Labor Law Section 193, so long as the deductions are made in accordance with an IRS-approved plan. Under IRC Section 61(a)(1), gross income ordinarily includes the fringe benefits received by an employee, but other provisions of the IRC may exclude a particular fringe benefit. As is relevant here, IRC Section 132(a)(5) excludes from gross income any fringe benefit that is a qualified transportation fringe (QTF). RPI's Proof Through the affidavit of its parking representative, RPI has shown that it owns 12 parking lots on its main campus that are designated for faculty and staff parking. This constitutes parking provided by an employer within the meaning of IRC Section 132(f)(5)(C). Further, because RPI allows employees to reduce their stated compensation to defray the cost of this parking and such amount is not included in the employee's gross income for federal tax purposes, the QTF benefit is provided in the form of salary reduction. Since RPI offers its parking program through a salary reduction arrangement, there must be an election by the employee in writing or some other permanent form. In this regard, RPI's parking representative avers that employees who wish to use the payroll reduction option are required to fill out an authorization form, which sets forth the amount to be reduced from the employee's salary and the date of election. RPI also submits what it claims to be plaintiff's signed Parking Permit Application (Application), dated August 19, 2005, in which plaintiff authorized a payroll deduction of $125 per year for parking. In addition, as permitted by the, RPI maintains an AutoRenew provision, also referenced on the Application, by which employees elect to renew the payroll deduction on an annual basis without having to sign a new authorization, so long as the employee is provided timely notice of any changes to the program. Plaintiff's Opposition In opposing the motion, plaintiff initially contends that IRC Section 132 does not authorize wage deductions for parking fees. According to plaintiff, RPI conflates the concept of a deduction from wages with the concept of an exclusion from gross income. However, Labor Law Section 193(1)(a) and (2) do not require a specific law, rule or regulation that authorizes wage deductions, rather, the statute allows wage deductions made in accordance with the provisions of any law, rule or regulation including the Internal Revenue Code and Treasury Department regulations. Relatedly, plaintiff argues that RPI's parking program cannot qualify as a fringe benefit because a fringe benefit is a form of pay for the performance of services. To this end, plaintiff asserts that IRC Section 132 clearly concerns the situation where the employer either provides additional pre-tax compensation to reduce the employee's commuting costs or facilitates the employee setting aside a portion of their pre-tax salary to pay a third party for qualified parking. Nor is plaintiff's reading of the statute supported by the 2010 IRS Information Letter, which provides, in relevant part: In a salary reduction arrangement, the employee is allowed to designate a portion of the amount he or she would otherwise receive as salary to be set aside to fund QTF benefits that he or she then receives from the employer. Moreover, in footnote 2, the IRS letter states: Although the Court believe it is outside the scope of the inquiry, the Court do note that it is also possible for employers to provide employees with qualified parking in kind. These contentions are without merit. Plaintiff was not mandated to drive her vehicle to work or park it in an RPI-owned lot in close proximity to her workplace. She could have chosen to use on-street metered parking, purchase a municipal parking permit from the City of Troy, or commute to work via other means. Instead, plaintiff affirmatively elected to purchase a permit from RPI that allowed her the privilege of parking in an on-campus lot that was convenient to her assigned workplace. And regardless of the way that the parking program was described, the fact remains that plaintiff signed an Application authorizing RPI to deduct $125 per year from her wages to pay for on-campus parking. The regulation does not state or imply that parking is considered to be provided by an employer only where the same parking is made available to non-employees. As the IRS has observed, the value of employer-provided parking may be based on the cost that an individual would incur in an arm's-length transaction for a space in the same lot or a comparable lot in the same general location under the same or similar circumstances. Finally, the Court is not convinced by plaintiff's reliance on a 2010 Department of Labor opinion. The opinion was written in response to an inquiry as to the permissibility of wage deductions for the payment of parking garage fees under Labor Law Section 193 in circumstances where the cost of the parking would be split equally between the employer and the employee. The Court concludes that RPI has established as a matter of law that the deductions from plaintiff's wages for on-campus parking were made in accordance with the provisions of an employer-sponsored pre-tax contribution plan approved by the IRS. As such, the deductions were made in compliance with Labor Law Section 193(1)(a) and (2). For this reason, plaintiff's Complaint must be dismissed. Labor Law 193 Section (1)(b) As an independent ground for dismissal of the Complaint, RPI argues that its parking program complies with Labor Law Section 193(1)(b). Under the cited statute, an employer may deduct a portion of an employee's wage where the deduction is expressly authorized in writing by the employee and is for the benefit of the employee, provided that such authorization is voluntary and only given following receipt by the employee of written notice of all terms and conditions of the payment and/or its benefits and the details of the manner in which deductions will be made. In support of its motion, RPI submits proof that the challenged wage deductions are for discounted parking, inasmuch plaintiff never paid more than $10.42 per month for parking ($11.25 beginning in July 2007), whereas comparable parking in the area ranges from $1 per hour for metered on-street parking to approximately $60 per month for municipal parking. RPI also offers proof that its parking program provides a direct benefit to employees even beyond the discounted price. Specifically, the program allows parking expenses to be defrayed through the use of pre-tax dollars, thereby enabling the employees to save federal, state and FICA taxes. In opposition, plaintiff takes issue with the authenticity of the Parking Permit Application proffered by RPI. However, plaintiff does not specifically deny filling out the Application. Nor does plaintiff claim that the signature on the Application is not hers. Accordingly, plaintiff has failed to squarely controvert RPI's assertion, made through its long-time parking manager, that the Application is a true and accurate representation of plaintiff's parking permit application that was made and kept by RPI in the regular course of business. Relatedly, plaintiff argues that any parking authorization that she gave to RPI was not voluntary, because employees cannot park in an RPI-owned parking lot unless they purchase an parking permit. As stated above, however, plaintiff was not required to park in one of RPI's on-campus lots as a condition of her employment. Plaintiff was free to utilize on-street parking, a municipal lot, other private lots or use an alternative means of transportation. Plaintiff freely and voluntarily chose the convenience of parking on campus in proximity to her workplace. RPI was not required to provide on-campus parking for its employees, much less offer them discounted parking. Nor was RPI obliged to allow employees to defray the cost of parking through the use of pre-tax dollars. Clearly, RPI accorded its employees the benefit of using pre-tax dollars to pay the discounted cost of parking. Moreover, while plaintiff claims the parking fees are used to defray RPI's administrative costs, she admits, and submits proof, that RPI used the collected fees to maintain existing lots, build a parking garage, and operate the free shuttle service used by employees. Finally, pertinent DOL regulations confirm that employers are not precluded from making deductions in all cases where there is a benefit to the employer. Employers may make deductions for the sale of their own goods and services to their employees at a discounted rate as long as the deduction is in compliance with section 193 of the Labor Law and this Part. Based on the foregoing, the Court concludes that plaintiff has failed to raise a triable issue of fact in response to this branch of RPI's motion. Accordingly, the Court concludes that RPI's parking program independently complies with Labor Law Sction 193(1)(b). Public Policy Considerations Finally, the Court deems it appropriate to briefly address plaintiff's public policy argument that allowing such unlimited, self-serving wage deductions by employers could place all New York State employees in an untenable position wherein they would be forced to choose between giving a portion of their hard-earned wages back to their employer in order to park near their workplace, or be forced to find public parking. There is, of course, no right to free, employer-provided parking. The Labor Law does not prohibit employees from being charged for parking on the employers' premises or require employers to provide discounted parking. At bottom, plaintiff wanted the convenience associated with parking on-campus in close proximity to her workplace, but now, almost 15 years after she agreed to participate in the wage deduction program, she seeks to avoid the very modest financial consequence of her choice. Defendant's motion for summary judgment is granted and plaintiff's complaint is dismissed. A full-text copy of the Supreme Court's September 12, 2019 Opinion is available at https://tinyurl.com/y3kog7o7 from Leagle.com. Girvin & Ferlazzo, P.C., (Scott P. Quesnel, of counsel), 20 Corporate Woods Boulevard, Albany, New York 12211, Attorneys for Plaintiff. Pattison, Sampson, Ginsberg & Griffin, PLLC, ( Rhiannon I. Spencer , of counsel), 22 First Street, P.O. Box 208, Troy, New York 12181-0208, Attorneys for Defendant. RESTAURANT MGT: McDonald's Franchisee Sued Over Sick Leave Law -------------------------------------------------------------- Cook County Record reports that a new class action is attempting to fry a McDonald's franchisee for allegedly violating the city's three-year-old paid sick leave law. On Sept. 10, lawyer Christopher J. Williams, Esq. of the National Legal Advocacy Network, of Chicago, filed suit in Cook County Circuit Court against Restaurant Management Corporation (RMC). The Indiana-based company operates fast food restaurants and other eateries in Indiana and the Chicago area, including McDonald's restaurants in the city of Chicago. The lawsuit was filed on behalf of named plaintiff Hermelinda Lopez, but the lawsuit asks the court to expand the action to include a class of all others who work at RMC-owned McDonald's restaurants in Chicago. According to the complaint, RMC has violated the rights of Lopez and other workers under the city's Earned Sick Leave Ordinance. Approved by the Chicago City Council in 2016, the ordinance, which took effect in July 2017, requires employers to provide most workers with at least one hour of paid sick time off for every 40 hours worked. The paid sick leave can be used by the employee either for their own illness or for a family member's needs. The ordinance also forbids employers from denying sick leave requests or taking any kind of action against employees for using their paid sick time off. Further, the ordinance requires employers to keep employees informed of their rights under the ordinance and to let workers know how many paid sick leave hours available to them. However, in this case, the plaintiffs asserted RMC allegedly violated the ordinance in multiple ways. According to the complaint, managers at Lopez's restaurant refused to pay Lopez for a day off to take her son to the emergency room for a broken ankle or for time off to care for her sick daughter. The complaint also said managers initially did not honor her request for paid sick leave when she said she was too sick to work. The complaint further accuses RMC managers of requiring employees to produce a note from a doctor when they take paid sick time. If they do not, the complaint asserts employees are told they could be suspended for three days. The complaint asserts the alleged policies "have unlawfully stripped" workers of their paid sick leave, under the city ordinance, and of "their right to be able to take care of themselves and their family members in a time of need." The complaint asks the court to order RMC to pay "liquidated monetary damages" for each alleged violation of the ordinance, plus attorney fees. [GN] REXALL SUNDOWN: Nielsen's Protective Order Bid in Seegert Nixed --------------------------------------------------------------- In the case, SANDRA SEEGERT, individually and on behalf of all others similarly situated, Plaintiff, v. REXALL SUNDOWN, INC., Defendant, Case No. 17-cv-01243-JAH (JLB) (S.D. Cal.), Magistrate Judge Jill K. Burkhardt of the U.S. District Court for the Southern District of California denied non-party The Nielsen Co. (U.S.), LLC's motion for protective order. On June 19, 2017, Plaintiff Seegert filed a class action complaint against Defendant Rexall in connection with its "Osteo Bi-Flex" joint health products. On Dec. 29, 2017, the Plaintiff filed a First Amended Complaint ("FAC"). In her FAC, the Plaintiff alleges that the Defendant engages in false and misleading advertising of four Osteo Bi-Flex dietary supplements. She further alleges that the falsely claims that the products provide meaningful joint health benefits. On Feb. 20, 2017, the Plaintiff purchased one of the Defendant's products, Osteo Bi-Flex Triple Strength, in reliance on the product's advertising. She alleges the product could not provide the promised benefits and, as a result of her purchase, she "suffered injury in fact and lost money." The Plaintiff brings the following claims against the Defendant: (1) violation of California's Unfair Competition Law; and (2) violation of California's Consumers Legal Remedies Act. She brings each claim on behalf of herself and the following putative class: all persons who purchased in the state of California any of the Osteo Bi-Flex products for personal use between Jan. 19, 2016, and the date notice is disseminated. The Plaintiff seeks restitution and disgorgement of all profits and unjust enrichment, as well as actual and punitive damages. The Plaintiff claims that Defendant manufactures and sells its Osteo Bi-Flex products to retailers directly and through wholesalers, who in turn sell the products to retail consumers. She further claims that Defendant carefully tracks the retail sales of its products in the ordinary course of business and gathers granular retail sales data from two types of sources. The first source is large retailers. The second is Nielsen, the primary company in the United States that gathers this type of data for nearly all large consumer goods manufacturers. The Plaintiff contends that this data is crucial to the Defendant's marketing, sales, inventory, and other business decisions, and is needed by the Plaintiff to to calculate damages and restitution, evaluate the case for settlement, and demonstrate at the class certification stage that relief can be determined on a class wide basis. On Jan. 11, 2019, the Plaintiff moved to compel further responses to the following discovery requests she served on the Defendant: (1) Subject Matter No. 15 in her Rule 30(b)(6) Notice; (2) Document Request No. 5 served in connection with her Rule 30(b)(6) Notice; (3) Requests for Production Nos. 37 and 52; and (4) Interrogatories Nos. 8-10. Specifically related to Nielsen, the Plaintiff requested testimony regarding the data the Defendant possesses relating to the "retail sales of Osteo Bi-Flex," including data obtained from Nielsen. The Plaintiff also requested: (1) documents sufficient to show the "total wholesale and retail sales of each of the Osteo Bi-Flex products, including each count variation thereof, in California between January 19, 2016 and the present"; (2) "all documents evidencing or summarizing the retail sales of Osteo Bi-Flex, including but not limited to syndicated vendor consumption data (e.g., Nielsen)"; and (3) "all documents which reflect, summarize, analyze or discuss the pricing of Osteo Bi-Flex, including wholesale or retail prices." In addition, the Plaintiff sought by way of interrogatory the total retail sales, the total number sold, and the average retail prices for each of the Osteo Bi-Flex products, including each count variation thereof, in California. The Defendant objected to each of these requests on several grounds including, inter alia, that the retailer sales information that Plaintiff sought is not within its possession, custody, or control. Defendant conceded, however, that it has possession of the requested Nielsen information. The Defendant also objected to the document requests to the extent they call for documents or information owned by third-parties and protected by a third-party confidentiality agreement. It has a license to access Nielsen's data collections pursuant to a contract, which contains a confidentiality provision. The Plaintiff attached a redacted version of this contract to her motion to compel. After analyzing the limited data before it at the time, the Court granted the Plaintiff's motion to compel as to the Nielsen data, but gave Nielsen an opportunity to move for a protective order in the matter prior to production. On April 11, 2019, Nielsen availed itself of that opportunity and filed the pending motion for protective order. On May 13, 2019, the Court held a hearing on the motion and ordered supplemental briefing. In accordance with the order, the parties filed supplemental briefing in a timely manner. In seeking a protective order, Nielsen states that its reports, studies, analyses and data are its commercial product, its stock-in-trade. It contends that its reports and information have substantial commercial value, and their analysis and production require the service of skilled professionals. It attaches and cites to several unpublished cases which purport to apply settled law prohibiting litigants from conscripting an unretained expert such as Nielsen to provide expert market research testimony in the case, against the company's will, and contrary to Nielsen's own commercial interests. Judge Burkhardt is not persuaded that the authority cited by Nielsen supports the proposition that the Plaintiff cannot obtain the Defendant's business records from the Defendant because those records were generated by Nielsen before being licensed to the Defendant. She is similarly unpersuaded by Nielsen's analogies to the Plaintiff who tried to use a subpoena to obtain investigation and testing documents from Consumer Reports, In re Consumers Union of United States, Inc., and to the parties who tried to use subpoenas to obtain a professor's research on SUV rollover accidents, In re Snyder, in order to avoid retaining experts. The Judge holds that Nielsen provided something of value to the Defendant -- which the Defendant paid for -- and which the Defendant is now compelled through the discovery process to provide to the Plaintiff subject to a protective order. This is not the same as a "stranger" to the lawsuit being subpoenaed to produce the product of independent and unrelated research for which the third party has not been and will not be compensated. Nielsen suggests that the Plaintiff should retain her own expert to determine the number of Osteo B-Flex products sold and the price of each of those products at the time of sale. However, the information before the Court suggests that this would not be possible, as the majority of retailers do not retain complete information. In fact, Costco is the only retailer or wholesaler identified by Plaintiff that provides complete information. Therefore, the Nielsen data is the best information available. Whether that information is sufficient for purposes of calculating damages is not for the Court to decide. For the foregoing reasons, Judge Burkhardt denied Nielsen's motion for a protective order precluding the Defendant from disclosing in discovery the confidential Nielsen data or reports licensed to it. Accordingly, no later than five court days from the date of the Order, the Defendant will (1) produce the documents requested by the Plaintiff with respect to Nielsen, and (2) supplement its response to the Plaintiff's Interrogatories Nos. 8-10 with information obtained from Nielsen. As noted, nothing in the Order precludes Nielsen or the Defendant from designating the information as "Confidential" or "Highly Confidential" pursuant to the terms of the existing Protective Order, or the parties from jointly moving to modify the existing Protective Order to specifically address the Nielsen information. Nor does the Order preclude the parties from entering stipulations reasonably acceptable to Nielsen. A full-text copy of the Court's Aug. 9, 2019 Order is available at https://is.gd/9WNHZS from Leagle.com. Sandra Seegert, individually and on behalf of all others similarly situated, Plaintiff, represented by Thomas Joseph O'Reardon, II -- toreardon@bholaw.com -- Blood Hurst & O'Reardon, LLP, Timothy G. Blood -- tblood@bholaw.com -- Blood Hurst & O'Reardon, LLP & Todd D. Carpenter -- tcarpenter@carlsonlynch.com -- Carlson Lynch Sweet Kilpela & Carpenter, LLP. Rexall Sundown, Inc., Defendant, represented by Adriane K. Peralta -- ADRIANE.PERALTA@SIDLEY.COM -- Sidley Austin LLP & Amy Pesapane Lally -- ALALLY@SIDLEY.COM -- Sidley Austin LLP. Rexall Sundown, Inc., Defendant, represented by Adriane K. Peralta -- ADRIANE.PERALTA@SIDLEY.COM -- Sidley Austin LLP & Amy Pesapane Lally -- ALALLY@SIDLEY.COM -- Sidley Austin LLP. RODENBURG LLP: 8th Cir. Affirms Dismissal of Carroll FDCA Suit -------------------------------------------------------------- The U.S. Court of Appeals for the Eighth Circuit affirmed the district court's dismissal of the case, Monty G. Carroll, Jr., on behalf of himself and all others similarly situated; Lawrence D. Smith, on behalf of himself and all others similarly situated, Plaintiffs-Appellants, v. Rodenburg LLP, Defendant-Appellee, Case No. 18-3667 (8th Cir.). Monty Carroll and Smith appeal the district court's dismissal of their purported class action brought under the Fair Debt Collection Practices Act. Having carefully reviewed the record and the parties' arguments on appeal, the Court concludes that the district court properly dismissed the complaint. Accordingly, the judgment is affirmed. A full-text copy of the Court's Aug. 14, 2019 Order is available at https://is.gd/8iwDd7 from Leagle.com. Clifton Rodenburg, for Defendant-Appellee. Eeva Wendorf, for Defendant-Appellee. Bradley R. Armstrong, for Defendant-Appellee. Michael S. Poncin -- Mike.Poncin@lawmoss.com -- for Defendant-Appellee. Jesse Stine Johnson -- jjohnson@gdrlawfirm.com -- for Plaintiff-Appellant. James Lee Davidson, for Plaintiff-Appellant. SAFELITE FULFILLMENT: Court Stays M. Young Suit ------------------------------------------------ The United States District Court for the Western District of Washington, Seattle, issued an Order granting Parties' Stipulated Motion Staying Case Pending Washington Supreme Court's Resolution of Certified Question in Sampson v. Knight Transportation, Inc. in the case captioned MARIO E. YOUNG, JR., Plaintiff, v. SAFELITE FULFILLMENT, INC., et al., Defendants. Case No. 2:19-cv-01027-JLR. (W.D. Wash.). This matter came before the Court on the parties' Stipulated Motion Staying Case Pending Washington Supreme Court's Resolution of Certified Question in Sampson v. Knight Transportation, Inc. Plaintiff filed the operative putative Class Action Complaint for Unpaid and Wrongfully Withheld Wages. The dates set forth in the Court's Rule 16(B) and Rule 23(D)(2) Scheduling Order Regarding Class Certification Motion, and all other deadlines currently set in this action be vacated, including without limitation Plaintiff's deadline to complete discovery on class certification and to move for class certification. This action be stayed, in its entirety and for all purposes, pending the Washington Supreme Court's decision on the certified question in Sampson v. Knight Transportation, Inc., Wash. S.Ct. Case No. 96264-2. Within fourteen (14) days of the Washington Supreme Court's decision in Sampson, the parties shall file a joint status report with the Court that (1) informs the Court regarding that Court's decision, (2) sets forth the parties' respective and/or collective positions as to whether the stay should remain in effect, and (3) provides the Court with agreed-upon and/or proposed deadlines for [i] completion of discovery on class certification and for Plaintiff to move for class certification under Fed. R. Civ. P. 23; and [ii] submission of an updated Joint Status Report and Discovery Plan. By entering into and submitting this Stipulated Motion, the parties fully reserve, and do not waive or limit, their respective rights, claims, remedies, defenses, and positions in this action, including as to the issues recited above. The dates set forth in the Court's Rule 16(B) and Rule 23(D)(2) Scheduling Order Regarding Class Certification Motion and all other deadlines currently set in this action shall be and hereby are vacated, including without limitation Plaintiff's deadline to complete discovery on class certification and to move for class certification. This action shall be and hereby is stayed, in its entirety and for all purposes, pending the Washington Supreme Court's decision on the certified question in Sampson v. Knight Transportation, Inc., Wash. S.Ct. Case No. 96264-2. Within fourteen (14) days of the Washington Supreme Court's decision in Sampson, the parties shall file a joint status report with the Court that (1) informs the Court regarding that Court's decision, (2) sets forth the parties' respective and/or collective positions as to whether the stay should remain in effect, and (3) provides the Court with agreed-upon and/or proposed deadlines for [i] completion of discovery on class certification and for Plaintiff to move for class certification under Fed. R. Civ. P. 23; and [ii] submission of an updated Joint Status Report and Discovery Plan. The parties' entering into and submission of this Stipulated Motion is without waiver or limitation of their respective rights, claims, remedies, defenses, and positions in this action, including as to the issues recited therein. A full-text copy of the District Court's September 3, 2019 Order is available at https://tinyurl.com/y3dr89jm from Leagle.com. Mario E Young, Jr, individually and on behalf of all others similarly situated, Plaintiff, represented by Brian Walter Denlinger - bd@ackermanntilajef.com - ACKERMANN & TILAJEF, P.C., Craig Ackermann - cja@ackermanntilajef.com - ACKERMANN AND TILAJEF PC & India Lin Bodien - india@indialinbodienlaw.com Safelite Fulfillment Inc, a Delaware corporation, Defendant, represented by Andrew C. Smith - acsmith@vorys.com - VORYS SATER SEYMOUR & PEASE, pro hac vice, Daniel J. Clark - djclark@vorys.com - VORYS SATER SEYMOUR & PEASE, pro hac vice, Michael J. Shoenfelt - mjshoenfelt@vorys.com - VORYS SATER SEYMOUR & PEASE, pro hac vice, Sheryl D.J. Willert- swillert@williamskastner.com - WILLIAMS KASTNER & Jeffery M. Wells - jwells@williamskastner.com - WILLIAMS KASTNER. SANOFI SA: Hagens Berman Files Class Action Over Zantac Risks ------------------------------------------------------------- Law firm urges Zantac users to find out their rights against drug maker who knowingly sold potentially carcinogenic medication A newly filed class-action lawsuit accuses international drug maker Sanofi of intentionally concealing risks in its popular heartburn medication, Zantac, which has been found to contain a carcinogenic chemical at 26,000 times the FDA-approved limit, according to the lawsuit filed by Hagens Berman. The lawsuit, filed Sept. 13, 2019, in the U.S. District Court for the Northern District of California accuses Sanofi and Boehringer Ingelheim of knowingly manufacturing and selling over-the-counter Zantac containing a concealed carcinogen to millions of people in the U.S. suffering from heartburn and other gastrointestinal issues, including sour stomach, acid reflux or gastroesophageal reflux disease (GERD). According to the complaint, Zantac contains the active ingredient ranitidine. When ingested, ranitidine metabolizes into N-nitrosodimethylamine (NDMA) which the FDA, EPA and World Health Organization (WHO) classify as a carcinogen. The FDA has established a permissible daily intake limit of 96ng of NDMA, but recent testing using FDA-approved methods detected more than 2,500,000ng of NDMA per 150mg tablet of Zantac. Each Zantac tablet has been found to contain 26,000 times the FDA-approved amount of NDMA that can be safely ingested daily. "Millions of people in the U.S. suffer from heartburn, and for years, Zantac has been sold to the masses as a safe and easy-to-find remedy for that common ailment," said Steve Berman, Esq. -- steve@hbsslaw.com -- managing partner of Hagens Berman and attorney leading the case for consumers. "We're certain that if those millions of consumers knew that the Zantac they take contains known carcinogens, they would be rightfully outraged." "Sanofi knew that Zantac contains a carcinogen, yet it chose to conceal these risks to the public to line its own pockets," Berman added. Zantac was the first drug to total $1 billion in sales. According to the lawsuit, "Zantac's unprecedented sales were possible only because of a deception perpetrated by the drug's manufacturers on consumers…" What Big Pharma Knew About Zantac's Carcinogenic Risks The dangers of NDMA have been publicly known for more than 40 years, according to the lawsuit, and the WHO has described NDMA as "clearly carcinogenic." NDMA itself belongs to a family of chemicals called N-nitrosamines, which the EPA refers to as "potent carcinogens." During the period that Sanofi and Boehringer manufactured and sold Zantac, numerous scientific studies were published showing, among other things, that ranitidine forms NDMA when placed in drinking water, and that a person who consumes the drug has a 400‑fold increase of NDMA concentration in their urine, according to the lawsuit. Attorneys say that despite the accumulating scientific evidence showing Zantac exposed users to extremely high levels of NDMA, neither Sanofi nor Boehringer disclosed this risk. "Had Defendants disclosed that Zantac results in unsafe levels of NDMA in the human body, no person, let alone a reasonable person, would have purchased and consumed Zantac," the complaint states. The lawsuit seeks to represent anyone who purchased over-the-counter Zantac between Jan. 1, 2010 and the present. Attorneys hope to secure repayment for those who purchased the drug, as well as a permanent injunction from the court under the Legal Remedies Act requiring the drug makers to either cease selling Zantac or add a warning to the label. The suit accuses Sanofi and Boehringer of violating state consumer-protection laws in its failure to disclose the harmful levels of NDMA in Zantac. Both the U.S. FDA and European Commission recently announced that they are also investigating Zantac and ranitidine for NDMA. If you have concerns about any potential adverse health risks associated with Zantac (or generic ranitidine consumption), Hagens Berman recommends that you discuss the allegations in this lawsuit with your physician. Find out more about the class-action lawsuit against Sanofi for cancer-causing compounds in Zantac. About Hagens Berman Hagens Berman Sobol Shapiro LLP is a consumer-rights class-action law firm with nine offices across the country. The firm's tenacious drive for plaintiffs' rights has earned it numerous national accolades, awards and titles of "Most Feared Plaintiff's Firm," and MVPs and Trailblazers of class-action law. More about the law firm and its successes can be found at hbsslaw.com. Follow the firm for updates and news at @ClassActionLaw. [GN] SANTANDER CONSUMER: Court Dismisses J. Price FLSA Suit ------------------------------------------------------ The United States District Court for the Northern District of Texas, Dallas Division, issued a Memorandum Opinion and Order granting Defendant's Motion to Compel Individual Arbitration in the case captioned JASON PRICE and CLINTON SHAW, Individually and on Behalf of Those Similarly Situated, Plaintiffs, v. SANTANDER CONSUMER USA INC., Defendant. Civil Action No. 3:19-CV-0742-B. (N.D. Tex.). This is a collective action under the Fair Labor Standards Act (FLSA). Plaintiffs Jason Price and Clinton Shaw allege that Defendant Santander Consumer USA Inc. violated the FLSA by failing to pay Plaintiffs, and those similarly situated, for overtime work. Plaintiffs allege that, as Resolution Specialists, they were paid by the hour, and they regularly worked more than forty hours per week. Defendant moves the Court to compel individual arbitration and dismiss the lawsuit with prejudice. Since the parties dispute both the existence of an arbitration agreement and whether Plaintiffs may proceed collectively, the Court will address: (1) whether to compel arbitration of the claims (2) whether Plaintiffs must arbitrate individually and (3) whether to dismiss or stay the case. Whether to Compel Arbitration of the Claims To compel arbitration, a party must prove the existence of an arbitration agreement by a preponderance of the evidence. And in determining the contractual validity of an arbitration agreement, courts apply ordinary state-law principles that govern the formation of contracts. Under Texas law, there is "no presumption in favor of arbitration when determining whether a valid arbitration agreement exists. Rather, the party seeking to compel arbitration must establish that the alleged agreement satisfies the requisite elements of a binding contract. A binding contract requires (1) an offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4) each party's consent to the terms and (5) execution and delivery of the contract with intent that it be mutual and binding. To demonstrate the existence of a binding contract, Defendant offered documentation of Defendant's Arbitration Policy (Policy). The Policy, in relevant part, states: The Company [Defendant] and the Associate agree to submit to binding arbitration any dispute, claim, or controversy that may arise between Associate and the Company arising out of or in connection with the Company's business, the Associate's employment with the Company, or the termination of Associate's employment with the Company. This Arbitration Policy is intended to broadly cover the entire relationship between Associate and Company. Defendant also provided exhibits resembling web-pages (Acknowledgment Exhibits), each of which contains headings titled Training Details and Arbitration Policy. In response, Plaintiffs contend that this evidence is insufficient to demonstrate the existence of a valid contract, because the evidence fails to show that Plaintiffs were made aware of the Policy. Consequently, Plaintiffs suggest, Defendant failed to prove an offer, acceptance, and meeting of the minds between Defendant and Plaintiffs; therefore, Defendant did not demonstrate the existence of a binding agreement. The Court finds that Defendant has established, by a preponderance of the evidence, the existence of an arbitration agreement. As a preliminary matter, Penn's Declarations are based upon her personal knowledge and comply with the Federal Rules of Evidence. Accordingly, they are proper evidence for a motion to compel arbitration. And because the Acknowledgment Exhibits qualify as business records, they do not violate the rule against hearsay. Specifically, the Court concludes that the Acknowledgment Exhibits, coupled with the Policy and Penn's Declarations, are sufficient to establish the existence of a contract. Thus, the Court concludes that there was a valid arbitration agreement between Defendant and Plaintiffs. Whether Plaintiffs Must Arbitrate Individually Next, the Court considers whether Plaintiffs must arbitrate individually or whether they may arbitrate collectively. The FAA mandates that courts enforce arbitration agreements according to their terms. In enforcing or construing an arbitration clause, courts must give effect to the contractual rights and expectations of the parties. Defendant contends that the Policy fails to address class or collective proceedings; rather, it considers only bilateral arbitration. For example, Defendant points out that the Policy applies to claims that arise between Associate and the Company. Further, Defendant suggests that there is no legally significant difference between class actions and collective actions in the arbitration context the same concerns underlying class-wide arbitration apply in collective arbitration. Plaintiffs, on the other hand, argue that the Policy contemplates collective arbitration, because the Policy covers any dispute, claim, or controversy that may arise between Associate and the Company arising out of or in connection with the Company's business. Since this language does not limit arbitrable claims to those in connection with the Associate's employment, Plaintiffs contend, the language is broad enough to encompass class and collective actions. Additionally, Plaintiffs suggest that even if the Policy is ambiguous regarding class and collective arbitration, this ambiguity does not bar collective arbitration in the same way that it would bar class-wide arbitration. Based on binding precedent, the Court rejects Plaintiffs' arguments and finds that the Policy fails to evidence an agreement to arbitrate class or collective actions. First, the language of the Policy does not demonstrate the parties' agreement to arbitrate class or collective claims: The text of the Policy makes no reference to class or collective arbitration. Further, the Court finds that collective actions are indistinguishable from class actions for arbitration purposes, because many concerns inherent in class arbitration persist in collective arbitration. Class arbitration involves the resolution of the disputes of numerous individuals perhaps hundreds. Due to these concerns, which arise in both class-wide and collective arbitration, Defendant's Motion to Compel Individual Arbitration is hereby GRANTED. Whether to Dismiss or Stay the Case Finding arbitration appropriate in this case, the Court next considers whether to stay or dismiss the proceedings pending the outcome of arbitration. The FAA provides that upon any issue referable to arbitration under an agreement, the court shall stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement. Nonetheless, the weight of authority clearly supports dismissal of the case when all of the issues raised in the district court must be submitted to arbitration. Defendant seeks a dismissal with prejudice, pointing out that if the Court compels arbitration, no other issues remain for the Court to decide. Plaintiffs, on the other hand, seek a stay of the proceedings. But if the Court dismisses the case, Plaintiffs desire a dismissal without prejudice. Nevertheless, while they acknowledge the Court's discretion to stay or dismiss the case, Plaintiffs have not identified an issue that will remain after the Court compels arbitration. Accordingly, the Court grants Defendant's Motion to Compel Individual Arbitration and dismisses the case with prejudice. A full-text copy of the District Court's September 12, 2019 Memorandum Opinion and Order is available at https://tinyurl.com/y6m4qvtf from Leagle.com. Jason Price & Clinton Shaw, Each Individually and on Behalf of All Others Similarly Situated, Plaintiffs, represented by Joshua Jon Sanford , Sanford Law Firm, One Financial Center, 650 S. Shackleford, Suite 411, Little Rock, Arkansas 72211 & Chris R. Miltenberger , The Law Office of Chris R. Miltenberger PLLC, 1360 N. White Chapel, Suite 200, Southlake, Texas 76092 Santander Consumer USA Inc, Defendant, represented by Stefanie R. Moll , Morgan, Lewis & Bockius LLP, Aimee Martika Raimer , Morgan, Lewis & Bockius LLP & Thomas Cullen Wallace , Morgan Lewis & Bockius LLP. SCANA CORP: Bid to Vacate Voluntary Dismissal of Warren Suit Nixed ------------------------------------------------------------------ In the case, City of Warren Police and Fire Retirement System, individually and on behalf of all others similarly situated, Plaintiff, v. SCANA Corporation; Dominion Energy, Inc.; Sedona Corp.; Jimmy E. Addision; Gregory E. Aliff; James A. Bennett; John F.A.V. Cecil; Sharon A. Decker; D. Maybank Hagood; Lynne M. Miller; James W. Roquemore; Macco K. Sloan; and Alfredo Trujillo, Defendants, C/A No. 3:18-509-MBS (D. S.C.), Judge Margaret B. Seymour of the U.S. District Court for the District of South Carolina, Columbia Division, denied Dominion and Sedona's motion to vacate the Plaintiff's notice of voluntary dismissal, which motion was filed on Feb. 13, 2019. SCANA and the South Carolina Public Service Authority ("Santee Cooper") entered into an agreement with Westinghouse Electric Co. in 2008 to construct two nuclear reactors at the V.C. Summer Nuclear Generating Station in Jenkinsville, South Carolina. The project was abandoned in July 2017. On Jan. 3, 2018, Dominion and SCANA entered into a merger agreement by which SCANA would become a wholly-owned subsidiary of Dominion through a merger with Sedona, an existing wholly-owned subsidiary of Dominion. Under the agreement SCANA stockholders would receive 0.6690 shares of Dominion stock in exchange for each outstanding share of SCANA common stock. On Jan. 23, 2018, Plaintiff City of Warren Police and Fire Retirement System filed a stockholder class action complaint in the Court of Common Pleas for the County of Lexington, South Carolina, against SCANA; members of the Board of Directors and the Chief Executive Officer; and Dominion and Sedona. The Plaintiff alleged causes of action against the Individual Defendants for breach of fiduciary duties by executing a merger agreement with Dominion and Sedona without regard to the effect of the proposed acquisition on SCANA's stockholders, i.e., failing to take steps to maximize the value to be received by stockholders, failing to properly value SCANA, and ignoring or not protecting "against the numerous conflicts of interest of senior management and the Board. The Plaintiff further alleged that SCANA, Dominion, and Sedona aided and abetted the Individual Defendants in breaching their fiduciary duties of loyalty, due care, independence, good faith, fair dealing, and candor. On Feb. 21, 2018, Dominion and Sedona removed the action pursuant to the Class Action Fairness Act. On March 14, 2018, the Plaintiff filed a motion to remand, asserting that the complaint was not subject to removal under 28 U.S.C. Section 1332(d)(9). On June 27, 2018, the Court granted the Plaintiff's motion to remand, concluding that its causes of action "concern" or "relate to" the exception set forth in Sections 1332(d)(9)(C). On Aug. 2, 2018, Dominion and Sedona informed the Court that the Court of Appeals for the Fourth Circuit had granted permission to appeal the order remanding the case and had issued a briefing schedule. Dominion and Sedona moved the Court to stay the remand order pending appeal. The Court granted the motion on Oct. 23, 2018. On Feb. 6, 2019, the Plaintiff filed a notice of voluntary dismissal without prejudice as to Dominion and Sedona. On June 28, 2019, the Fourth Circuit reversed the Court's ruling remanding the within action. The Fourth Circuit issued its mandate on July 23, 2019. The matter is now before the court on Dominion and Sedona's motion to vacate the Plaintiff's notice of voluntary dismissal. Dominion and Sedona also contend that the notice of dismissal is not effective because it purports to dismiss only two Defendants, contrary to the plain language of Rule 41(a)(1)(A), which allows a plaintiff to dismiss "an action" without court approval. The Plaintiff filed a response in opposition on Feb. 27, 2019, to which Dominion and Sedona filed a reply on March 6, 2019. Judge Seymour holds that some courts have embraced the view that the dismissal of all claims against less than all defendants should be made under Rule 21, which provides that the court may, at any time, on just terms, add or drop a party. However, the sounder view and the weight of judicial authority allow a plaintiff to dismiss all claims against a defendant without dismissing the entire controversy. The Judge finds persuasive the observation that permitting a plaintiff to dismiss fewer than all of the named defendants is consistent with the purpose of Rule 41(a)(1)(A)(i), which is to permit a disengagement of the parties at the behest of the plaintiff in the early stages of a suit, before the defendant has expended time and effort in the preparation of his case. Hence, the notice of voluntary dismissal is effective as to Dominion and Sedona. For the reasons stated, Judge Seymour concludes that the Plaintiff has the absolute right to file a notice of voluntary dismissal pursuant Rule 41(a)(1)(A)(i); and that the notice of voluntary dismissal is effective as to Dominion and Sedona. Accordingly, Dominion and Sedona's motion to vacate is denied. A full-text copy of the Court's Aug. 9, 2019 Order and Opinion is available at https://is.gd/bvFmB2 from Leagle.com. City of Warren Police and Fire Retirement System, Individually and on Behalf of All Others Similary Situated, Plaintiff, represented by Daniel J. Ballou -- dan.ballou@mortongettys.com -- Morton and Gettys, James M. Morton, Morton and Gettys, James Nathanial Pierce, Morton and Gettys & David T. Wissbroecker -- DWissbroecker@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, pro hac vice. SCANA Corporation, Gregory E Aliff, James A Bennett, John F.A.V. Cecil, Sharon A Decker, D Maybank Hagood, Lynne M Miller, James W Roquemore, Maceo K Sloan & Alfredo Trujillo, Defendants, represented by Benjamin Palmer Carlton -- bcarlton@richardsonplowden.com -- Richardson Plowden and Robinson, George Craig Johnson, Johnson Toal and Battiste, I.S. Leevy Johnson, Johnson Toal and Battiste, Steven J. Pugh -- spugh@richardsonplowden.com -- Richardson Plowden and Robinson & Michael R. Smith, King and Spalding, pro hac vice. Dominion Energy Inc & Sedona Corp, Defendants, represented by Andrew Addison Mathias -- AMathias@nexsenpruet.com -- Nexsen Pruet, William W. Wilkins -- BWilkins@nexsenpruet.com -- Nexsen Pruet, Brian E. Pumphrey -- bpumphrey@mcguirewoods.com -- McGuireWoods LLP, pro hac vice & Brian D. Schmalzbach -- bschmalzbach@mcguirewoods.com -- McGuireWoods LLP, pro hac vice. Jimmy E Addison, Defendant, represented by William Alexander Coates -- wac@roecassidy.com -- Roe Cassidy Coates and Price, John Allen Jordak, Jr., Alston and Bird LLP, pro hac vice, Meredith Jones Kingsley, Alston and Bird LLP, pro hac vice & William R. Mitchelson, Jr., Alston and Bird LLP, pro hac vice. SIMMONS FIRST: Fails to Pay Overtime Wages Under FLSA, Clark Says ----------------------------------------------------------------- CAROLYN CLARK, individually and on behalf of all those similarly situated v. SIMMONS FIRST NATIONAL CORPORATION, Case No. 5:19-cv-00284-BRW (E.D. Ark., Sept. 5, 2019), accuses the Defendant of violating the Fair Labor Standards Act, the Arkansas Minimum Wage Act, and the common law of Arkansas by failing to pay the Plaintiff and others all overtime wages owed to them. Simmons First National Corporation is a company doing business in Arkansas at various locations, including in Pine Bluff, Arkansas. Simmons First is a financial holding company, headquartered in Pine Bluff, with total assets of approximately $17.9 billion as of June 30, 2019, conducting financial operations throughout Arkansas, Colorado, Illinois, Kansas, Missouri, Oklahoma, Tennessee and Texas. The Company, through its subsidiaries, offers comprehensive financial solutions delivered with a client-centric approach.[BN] The Plaintiff is represented by: Justin L. Swidler, Esq. Matthew D. Miller, Esq. Carley A. Doyle, Esq. SWARTZ SWIDLER, LLC 1101 Kings Highway North, Suite. 402 Cherry Hill, NJ 08034 Telephone: (856) 685-7420 Facsimile: (856) 685-7417 E-mail: jswidler@swartz-legal.com mmiller@swartz-legal.com cdoyle@swartz-legal.com SMARTPAY LEASING: Court Enters $11K Judgment in Esparza ------------------------------------------------------- The United States District Court for the Northern District of California issued an Order granting Plaintiff's Motion for Entry of Judgment in the case captioned SHAWN ESPARZA, on behalf of herself, and all others similarly situated, Plaintiff, v. SMARTPAY LEASING, INC., Defendant. No. C 17-03421 WHA. (N.D. Cal.). Plaintiff filed a class action complaint seeking redress for Anselmo's violations of the Fair Debt Collection Practices Act (FDCPA). Plaintiff alleged that Anselmo violated the Sections 1692e, e(2), e(5), and e(10) of the FDCPA by falsely implying that late charges can be assessed against Plaintiff's mortgage loan, when in fact no such charges can be assessed as a matter of law. Discovery and Efforts to Resolve the Case The parties issued discovery. Notably, Plaintiff asked Anselmo to fully explain the factual basis for its Third Affirmative Defense. Plaintiff found that Anselmo's original discovery answers were deficient and thereafter Plaintiff prepared a lengthy Local Rule 37.2 email which resulted in Anselmo issuing supplemental answers. Yet again, Anselmo's supplemental discovery answers were deficient and Plaintiff sent a detailed Local Rule 37.2 email to Anselmo's counsel. This resulted in a second supplemental discovery response and a third Local Rule 37.2 email to Anselmo's counsel. Anselmo's 30(b)(6) deponent clarified and offered to amend prior discovery answers which resulted in Anselmo issuing a third supplemental discovery response. This third supplemental discovery response provided a detailed breakdown of the numbers of persons that it alleged were susceptible to the previously asserted affirmative defenses. Plaintiff answered discovery and was deposed. Anselmo did not move for summary judgment after the close of discovery. Plaintiff crafted a class based demand based upon Anselmo's third supplemental discovery responses. Plaintiff's class based demand relied on well-recognized cases which have approved FDCPA class settlements where a debt collector's net worth was modest or low. Notably, Plaintiff's class based demand would have resulted in a higher payout than those approved by other courts. Anselmo made a counter-offer, but declined to make a class based settlement offer. When Plaintiff offered to reduce its prior class based settlement demand, Anselmo's counsel indicated that Anselmo was not interested in classwide settlement. Anselmo submitted an offer of judgment to Plaintiff in the amount of $1,100.00, exclusive of attorney's fees and costs. Due to circumstances independent of the merits of the case, Plaintiff accepted Anselmo's offer of judgment. By accepting the offer of judgment, Plaintiff became the prevailing party, thus entitling him to his attorney's fees and costs pursuant to Section 1692k(a)(3) of the FDCPA. In an effort to settle the attorney's fees and costs without going through the lengthy and onerous fee petition process, Plaintiff made a settlement demand to Anselmo (Plaintiff's Deman). Despite zealously defending this case and causing Plaintiff to incur significant attorney's fees, Anselmo rejected Plaintiff's Demand and submitted a trifling counter-offer. The entry of judgment against Anselmo is appropriate because Rule 68 operates automatically, requiring that the clerk shall enter judgment' upon the filing of an offer, notice of acceptance, and proof of service. Based on the foregoing, the entry of judgment in Plaintiff's favor and against Anselmo is warranted. Enter a judgment against Anselmo in the amount of $1,100.00 pursuant to Fed. R. Civ. P. Rule 68;b. Order Anselmo to submit the payment of $1,100.00 in Plaintiff's name to Plaintiff's counsel post haste; and c. Order the parties to comply with the procedures set forth in Local Rule 54.3 with respect to Plaintiff's petition for attorney's fees and costs. A full-text copy of the District Court's September 12, 2019 Order is available at https://tinyurl.com/y4phyasg from Leagle.com. Shawn Esparza, on behalf of herself, and all others similarly situated, Plaintiff, represented by Ronald A. Marron - ron@consumersadvocates.com - Law Offices of Ronald A. Marron, APLC, Alexis Marie Wood - alexis@consumersadvocates.com - Law Offices of Ronald A. Marron, APLC & Kas Larene Gallucci - kas@consumersadvocates.com - Law Offices of Ronald A. Marron. Smartpay Leasing, Inc., Defendant, represented by Emily Lee Wallerstein - emily.wallerstein@squirepb.com - Squire Patton Boggs (US) LLP, Eric J. Troutman - eric.troutman@squirepb.com - Squire Patton Boggs (US) LLP & Jeffrey A. Topor - jtopor@snllp.com - Simmonds & Narita LLP. SOUTHERN COMPANY: Appeals Class Cert. Order in Securities Suit -------------------------------------------------------------- Defendants The Southern Company, et al., filed an appeal from the District Court's order entered on August 22, 2019, certifying a class under Rule 23(b)(3) of the Federal Rules of Civil Procedure in the lawsuit entitled MONROE COUNTY EMPLOYEES' RETIREMENT SYSTEM AND ROOFERS LOCAL NO. 149 PENSION FUND, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. THE SOUTHERN COMPANY, THOMAS A. FANNING, ART P. BEATTIE, EDWARD DAY, VI, G. EDISON HOLLAND, JR., JOHN C. HUGGINS, AND THOMAS O. ANDERSON, Case No. 1:17-cv-00241-WMR, in the U.S. District Court for the Northern District of Georgia. As reported in the Class Action Reporter on Sept. 9, 2019, the District Court issued an Opinion and Order granting Plaintiffs' Motion for Class Certification. Roofers Local No. 149 Pension Fund and Monroe County Employees' Retirement System, as putative class representatives, seek damages for Defendants' alleged violations of Section 10(b) of the Securities Exchange Act of 1934, Rule 10b-5 promulgated thereunder, and Section 20(a) of the Exchange Act. The operative complaint in this action is the Consolidated Complaint for Violations of the Federal Securities Laws. The Plaintiffs sought certification of a Class consisting of: All persons who purchased or otherwise acquired The Southern Company common stock between April 25, 2012 and October 30, 2013, inclusive (the Class Period), and were damaged thereby. The appellate case is captioned as MONROE COUNTY EMPLOYEES' RETIREMENT SYSTEM AND ROOFERS LOCAL NO. 149 PENSION FUND, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Respondents v. THE SOUTHERN COMPANY, THOMAS A. FANNING, ART P. BEATTIE, EDWARD DAY, VI, G. EDISON HOLLAND, JR., JOHN C. HUGGINS, AND THOMAS O. ANDERSON, Defendants-Petitioners, Case No. 19-90015, in the United States Court of Appeals for the Eleventh Circuit. The Defendants want the Appeals Court to determine whether: 1. under Halliburton Co. v. Erica P. John Fund. Inc., 573 U.S. 258, 280 (2014) ("Halliburton II") defendants can rebut the Basic presumption of classwide reliance with evidence that an alleged corrective disclosure had no statistically significant price impact; and 2. under Comcast Corp. v. Behrend, 569 U.S. 27, 35 (2013) plaintiffs seeking class certification under Rule 23(b)(3) must proffer a damages model tailored to their theory of liability to prove that damages are calculable on a classwide basis.[BN] The Plaintiffs-Respondents are represented by: Daniel S. Drosman, Esq. Scott H. Saham, Esq. Darryl J. Alvarado, Esq. Austin P. Brane, Esq. Henry Rosen, Esq. Regis C. Worley, Jr., Esq. Hillary B. Stakem, Esq. Rachel A. Cocalis, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-8498 Telephone: (619) 231-1058 Facsimile: (619) 231-7423 E-mail: dand@rgrdlaw.com scotts@rgrdlaw.com dalvarado@rgrdlaw.com abrane@rgrdlaw.com henryr@rgrdlaw.com rworley@rgrdlaw.com hstakem@rgrdlaw.com rcocalis@rgrdlaw.com - and - John C. Herman, Esq. HERMAN JONES LLP 3424 Peachtree Rd., N.E., Suite 1650 Atlanta, GA 30326 Telephone: (404) 504-6500 Facsimile: (404) 504-6501 E-mail: jherman@hermanjones.com - and - Thomas C. Michaud, Esq. VANOVERBEKE MICHAUD & TIMMONY, P.C. 79 Alfred Street Detroit, MI 48201 Telephone: (313) 578-1200 Facsimile: (313) 578-1201 E-mail: tmichaud@vmtlaw.com The Defendants-Petitioners are represented by: Shay Dvoretzky, Esq. JONES DAY 51 Louisiana Ave., N.W. Washington, DC 20001-2113 Telephone: (202) 879-3474 E-mail: sdvoretzky@jonesday.com - and - Jason T. Burnette, Esq. Michael J. McConnell, Esq. Walter W. Davis, Esq. Ashley F. Heintz, Esq. Robert A. Watts, Esq. William E. Eye, Esq. JONES DAY 1420 Peachtree St., N.E., Suite 800 Atlanta, GA 30309-3053 Telephone: (404) 521-3939 E-mail: jtburnette@jonesday.com mmcconnell@jonesday.com wwdavis@jonesday.com aheintz@jonesday.com rwatts@jonesday.com weye@jonesday.com SPORTS RESEARCH: Protective Order in Capaci Suit Over Fraud Issued ------------------------------------------------------------------ Magistrate Judge Frederick F. Mumm of the U.S. District Court for the Central District of California has issued a stipulated protective order in the case, FRANK CAPACI and CYNTHIA FORD on behalf of themselves, all others similarly situated, and the general public, Plaintiffs, v. SPORTS RESEARCH CORPORATION, a California Corporation. Defendant, Case No. 2:19-cv-03440-FMO-FFM (C.D. Cal.). The Order encompasses all confidential material that is designated by a party or a third party as confidential information under the Order, whether such disclosure is by order of the Court or any court of competent jurisdiction, in response to questions in a deposition, written interrogatories, requests for the production of documents and other tangible things, requests for admission, or any other discovery undertaken in this action. This Order is meant to encompass all forms of disclosure that may contain confidential material, including any document, pleading, motion, exhibit, declaration, affidavit, deposition transcript, inspection and all other tangible items (electronic media, photographs, videocassettes, etc.). The terms "document" or "documents" mean documents and writings, and include, but are not limited to, records, exhibits, reports, samples, transcripts, video or audio recordings, disks, affidavits, briefs, summaries, notes, abstracts, drawings, company records and reports, answers to interrogatories, responses to requests for admissions, and motions, including copies or computer-stored versions of any of the foregoing. The Order governs how parties must handle the production of and use of protected material that one party elects to produce to another party or that one party is ordered by the Court to produce to another party. Further, the Order shall be without prejudice to the right of any party to object to the admissibility into evidence of any information or documents produced under the Order. Within 60 days after the termination of the lawsuit, all confidential material (including all copies) shall be returned to the counsel for the designating party or destroyed. In addition, the counsel returning or destroying such material shall execute an affidavit verifying that all confidential material produced to such counsel and any subsequently made copies are being returned in their entirety or destroyed in their entirety pursuant to the terms of the Order. Such a representation fully contemplates that the counsel returning or destroying the materials has: (a) contacted all persons to whom that counsel disseminated confidential material, and (b) confirmed that all such material has been returned to disseminating counsel or destroyed. Notwithstanding the foregoing, the counsel for the parties may retain a file copy of confidential material for as long as may be required by the State Bar or the Rules of Professional Responsibility, or as long as any other related litigation, arbitration, or other proceeding is anticipated or pending, whichever is longer. A full-text copy of the Court's Aug. 9, 2019 Protective Order is available at https://is.gd/Ccauxb from Leagle.com. Frank Capaci, on behalf of himself and all others similarly situated, Plaintiff, represented by Lilach Halperin, Law Offices of Ronald A Marron APLC, Michael T. Houchin, Law Office of Ronald Marron & Ronald A. Marron, Law Offices of Ronald A Marron APLC. Cynthia Ford, Plaintiff, represented by Ronald A. Marron -- ron@consumersadvocates.com -- Law Offices of Ronald A Marron APLC. Sports Research Corporation, a California Corporation, Defendant, represented by Norma V. Garcia -- ngarciaguillen@garciarainey.com -- Garcia Rainey Blank and Bowerbank LLP & Jeffrey Michael Blank -- Jblank@garciarainey.com -- Garcia Rainey Blank and Bowerbank LLP. ST. ANN, MO: Court Refuses Dismissal of Q. Thomas Suit ------------------------------------------------------ The United States District Court for the Eastern District of Missouri, Eastern Division, issued a Memorandum and Order denying Defendant's Motion to Dismiss in the case captioned QUINTON M. THOMAS, et al., Plaintiffs, v. THE CITY OF ST. ANN, Defendant. No. 4:16 CV 1302 RWS. (E.D. Mo.). The City filed a motion to dismiss Plaintiffs' second amended complaint for failure to join an indispensable party under Federal Rule of Civil Procedure 19. Plaintiffs in this matter have filed a class action lawsuit asserting claims against Defendant City of St. Ann (the City) alleging constitutional violations arising from Plaintiffs' arrest and incarceration as a result of their failure to pay fines for municipal ordinance violations (Counts I-V). Plaintiffs seek compensatory damages as well as declaratory and injunctive relief. The City argues that Plaintiffs' constitutional challenges are directed solely to the conduct of the St. Ann Municipal Court (municipal court), which the City argues is a separate entity, and that the municipal court is therefore required to be joined as a codefendant under Rule 19(a). But the City argues that joinder is not feasible because the municipal court is an arm of the state under Missouri law and, as such, entitled to sovereign immunity. The City contends that because there is a potential for injury to the interests of the municipal court and because the municipal court is immune from suit, dismissal of the claims at issue is required under Rule 19(b). Federal Rule of Civil Procedure 12(b)(7) permits dismissal of a claim for failure to join a party under Rule 19. Joinder is required when: (A) in that person's absence, the court cannot accord complete relief among existing parties; or(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:(i) as a practical matter impair or impede the person's ability to protect the interest; or(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. The Rule 19 inquiry is a highly-practical, fact-based endeavor and courts are generally reluctant to grant motions to dismiss of this type. A decision under Rule 19 not to decide a case otherwise properly before the court is a power to be exercised only in rare instances. The Court concludes that the municipal court in St. Ann is not a required party under Rule 19(a). Rule 19(a)(1)(A)'s condition that a court be able to accord complete relief does not mean that every type of relief sought must be available, only that meaningful relief be available. Here, the present litigation is able to accord meaningful relief to Plaintiffs without joinder of the municipal court. Plaintiffs seek money damages from the City, a declaration that the City violated their constitutional rights, and an injunction enjoining the City from enacting and enforcing its allegedly unlawful policies and customs. This lawsuit may provide such relief to the extent that Plaintiffs' claims prove to be viable and meritorious. The City's argument that the municipal court, and not the City, caused the alleged constitutional violations may be a reason to deny relief on Plaintiffs' claims, but it does not support a finding under Rule 19(a)(1) that joinder of the municipal court is required. Likewise, under Rule 19(a)(1)(B), even assuming that the municipal court has an interest relating to the subject of the action, disposition of the action in the municipal court's absence will not as a practical matter impair or impede the municipal court's ability to protect its interest. In support of its argument to the contrary, the City relies primarily on the Eighth Circuit's opinion in Two Shields v. Wilkinson, 790 F.3d 791 (8th Cir. 2015). In that case, the plaintiffs claimed that the named defendants induced an absent sovereign, the United States, to breach its fiduciary duty by approving leases for interests in land held in trust. In other words, in order to prevail on their claims against the named defendants, the plaintiffs were required to prove that the absent sovereign acted illegally. A judgment entered in the sovereign's absence would thus potentially cloud the validity of many of the land grants approved by the government. For this reason, the Eighth Circuit found that the United States' ability to protect its interest would be impaired or impeded by its absence from the litigation. By contrast, here, none of Plaintiffs' claims requires a showing that the municipal court acted illegally. Rather, for Plaintiffs to succeed on their claims, they must demonstrate that the City acted unlawfully. The City's motion must be denied. In light of the extensive briefing submitted on these issues, oral argument is unnecessary. Accordingly, the Defendant's motion to dismiss Counts I through V through VII, and motion for oral argument of the motion are both denied. A full-text copy of the District Court's September 3, 2019 Order is available at https://tinyurl.com/y4klvger from Leagle.com. Quinton M. Thomas, Plaintiff, represented by Blake Alexander Strode , ARCHCITY DEFENDERS, Michael-John Voss, ARCHCITY DEFENDERS, 440 N. 4th Street, Ste. 390, St. Louis, MO 63102, Samuel Zachary Fayne - zachary.fayne@arnoldporter.com - ARNOLD AND PORTER, LLP, Thomas B. Harvey - tharvey@archcitydefenders.org - ADVANCEMENT PROJECT, David B. Bergman - david.bergman@arnoldporter.com - ARNOLD AND PORTER, LLP, pro hac vice, John Robinson - john.robinson@arnoldporter.com - ARNOLD AND PORTER, LLP, John McCann Waldron , ARCHCITY DEFENDERS, 440 N. 4th Street, Ste. 390, St. Louis, MO 63102, Seth Jason Wiener , ARNOLD AND PORTER, LLP, pro hac vice & Sima Atri , ARCHCITY DEFENDERS, 440 N. 4th Street, Ste. 390, St. Louis, MO 63102 Roelif Earl Carter, Bradley Jiles, Angela Davis, Meredith Walker, Brittany Ellis, Donya Pierce, Mawoussime Adoboe & Veronica Murphy, Plaintiffs, represented by Blake Alexander Strode , ARCHCITY DEFENDERS, Michael-John Voss, ARCHCITY DEFENDERS, Samuel Zachary Fayne , ARNOLD AND PORTER, LLP, Thomas B. Harvey , ADVANCEMENT PROJECT, John Robinson , ARNOLD AND PORTER, LLP, John McCann Waldron , ARCHCITY DEFENDERS, Seth Jason Wiener , ARNOLD AND PORTER, LLP, pro hac vice & Sima Atri , ARCHCITY DEFENDERS. City of St. Ann, Missouri, Defendant, represented by Blake Daniel Hill , HELLMICH HILL LLC, John Michael Reeves, Jr. , HELLMICH HILL LLC & William A. Hellmich , HELLMICH HILL LLC. 1049 NORTH CLAY AVENUE, KIRKWOOD, MO 63122 Peter J. Dunne & Robert T. Plunkert, Movants, represented by Maurice B. Graham , GRAY AND RITTER, P.C., 701 Market Street, Suite 800, St. Louis, MO 63101-1826 ST. CLOUD STATE UNIV: Seeks 8th Cir. Review of Ruling in Portz Suit ------------------------------------------------------------------- Defendants Minnesota State Colleges and Universities and St. Cloud State University filed an appeal from a court ruling entered in the lawsuit entitled Alexie Portz, et al. v. St. Cloud State University, et al., Case No. 0:16-cv-01115-JRT, in the U.S. District Court for the District of Minnesota. As reported in the Class Action Reporter on Aug. 20, 2019, the District Court issued an Order finding that both St. Cloud State University's Past and Present Allocation of Athletic-Participation Opportunities and Athletic Treatment and Benefits Do Not Comply with Title IX. The issues for trial included (1) whether SCSU's past allocation of athletic participation opportunities and treatment and benefits was inequitable in violation of Title IX and (2) whether SCSU's present allocation of athletic participation opportunities and treatment and benefits is inequitable in violation of Title IX. The Plaintiffs brought this class action against Defendants St. Cloud State University (SCSU) and Minnesota State Colleges and Universities (MNSCU), alleging gender discrimination in SCSU's past and present allocation of athletic opportunities and in SCSU's treatment and allocation of benefits for its female student-athletes in violation of Title IX of the Education Amendments Act of 1972 (Title IX). The Plaintiffs allege that SCSU violated Title IX in the past (academic year 2015-16 and earlier). The Plaintiffs also allege that SCSU is violating Title IX in the present (academic year 2016-17 to the present). The appellate case is captioned as Alexie Portz, et al. v. St. Cloud State University, et al., Case No. 19-2921, in the United States Court of Appeals for the Eighth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript is due on or before October 16, 2019; -- Appendix is due on October 28, 2019; -- Brief of Appellants Minnesota State Colleges and Universities and St. Cloud State University is due on October 28, 2019; -- Appellee brief is due 30 days from the date the court issues the Notice of Docket Activity filing the brief of appellant; and -- Appellant reply brief is due 21 days from the date the court issues the Notice of Docket Activity filing the appellee brief.[BN] Plaintiffs-Appellees Alexie Portz, et al., are represented by: Tyler P. Brimmer, Esq. Adina R. Florea, Esq. Donald Chance Mark, Jr., Esq. FAFINSKI MARK & JOHNSON, PA 775 Prairie Center Drive, Suite 400 Eden Prairie, MN 55344-0000 Telephone: (952) 995-9500 E-mail: tyler.brimmer@fmjlaw.com adina.florea@fmjlaw.com donald.mark@fmjlaw.com - and - Sharon Van Dyck, Esq. VAN DYCK LAW FIRM 310 Fourth Avenue, S., Suite 5010 Minneapolis, MN 55415 Telephone: (952) 746-1095 Defendants-Appellants St. Cloud State University and Minnesota State Colleges and Universities are represented by: Kevin Andrew Finnerty, Esq. Ian M. Welsh, Esq. ATTORNEY GENERAL'S OFFICE Bremer Tower 445 Minnesota Street Saint Paul, MN 55101-2130 Telephone: (651) 757-1058 E-mail: kevin.finnerty@ag.state.mn.us ian.welsh@ag.state.mn.us STEVEN B. KATZ: Anderson Sues over Debt Collection Practices ------------------------------------------------------------ STEPHANIE ANDERSON, individually and on behalf of all others similarly situated, Plaintiff v. LAW OFFICE OF STEVEN B. KATZ, P.A., Defendant, Case No. 0:19-cv-62188 (S.D. Fla., Aug. 31, 2019) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The Law Office of Steven B. Katz, P.A. is a law firm engaged as a debt collection agency. [BN] The Plaintiff is represented by: Jibrael S. Hindi, Esq. Thomas J. Patti, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th Street, Suite 1744 Fort Lauderdale, FL 33301 Tel: (954) 907-1136 Fax: (855) 529-9540 E-mail: jibrael@jibraellaw.com tom@jibraellaw.com STORM WATER: Taplin Seeks to Recover Unpaid Wages and Damages ------------------------------------------------------------- CHARLES TAPLIN, on behalf of himself and others similarly situated, Plaintiff, v. STORM WATER SOLUTIONS, LLC Defendant, Case No. 4:19-cv-03495 (S.D. Tex., Sept. 16, 2019) is a lawsuit seeking to recover unpaid wages and overtime compensation, liquidated damages, attorneys' fees, and costs. Storm Water Solutions, LLC ("SWS") is a storm water pollution prevention management and maintenance company doing business in Texas. Plaintiffs Mr. Taplin worked for Defendant as a maintenance worker. The Plaintiff asserts that Defendants violated the Fair Labor Standards Act by forcing Plaintiff and similarly situated workers, to work a substantial amount of overtime without properly paying all compensation due, thus depriving them of rightful compensation for their work that SWS is legally obligated to pay. Plaintiff regularly worked in excess of 40 hours per week and was damaged by Defendant's illegal policies or practices, says the complaint.[BN] The Plaintiff is represented by: Robert W. Cowan, Esq. Katie R. McGregor, Esq. BAILEY COWAN HECKAMAN PLLC 5555 San Felipe St., Suite 900 Houston, TX 77056 Phone: 713-425-7100 Fax: 713-425-7101 Email: rcowan@bchlaw.com kmcgregor@bchlaw.com STURM FOODS: Court Overrules $25MM Allocation Plan Objection ------------------------------------------------------------ The United States District Court for the Southern District of Illinois issued a Memorandum and Order overruling Defendants' Objection to Settlement Allocation Plain in the case Captioned LINDA SUCHANEK, RICHARD McMANUS, CAROL CARR, PAULA GLADSTONE, EDNA AVAKIAN, CHARLES CARDILLO, BEN CAPPS, DEBORAH DIBENDETTO, and CAROL RITCHIE, Plaintiffs, v. STURM FOODS, INC. and TREEHOUSE FOODS, INC., Defendants. Case No. 3:11-CV-00565-NJR-RJD. (S.D. Ill.). This consumer fraud class action has been pending since June 28, 2011. On the eve of trial, after eight years of litigation, the parties agreed to settle the claims for $25 million, common fund, with no reversion to Defendants. Unfortunately, the parties have been unable to finalize the settlement agreement because of disputes over distribution of the common fund and the language on the claim forms. Plaintiffs consist of consumers from eight states who purchased Defendants' product Grove Square Coffee. Each state has its own consumer fraud statute that calls for different damages. PLAINTIFFS' PROPOSED ALLOCATION PLAN Plaintiffs propose the following allocation of the common fund: Payments to Class Members shall be calculated by the Settlement Administrator pursuant to the Plan of Allocation as follows: All Class members will be required to submit a Claim Form which requests the following information in box form: (1) approximate date of purchase; (2) likely retailer where purchase was made; (3) quantity of GSC that was purchased; and (4) total amount paid. Alabama class members will receive a maximum of $100 per Claim Form regardless of the number of units purchased; New York class members will receive a maximum of $500 per Claim Form regardless of the number of units purchased; Class members from the remaining six states will receive a minimum of $25 per purchase, up to a maximum of three purchases, for a maximum total of $75 per Claim Form. DEFENDANTS' OBJECTIONS Defendants object to Plaintiffs' proposed plan but assure they do not seek to reduce the overall amount they agreed to pay. Nor do they seek a reversion of any of that amount. Nonetheless, Defendants argue Plaintiffs' plan: (1) creates a disparity between the class members from New York and Alabama and the class members from the remaining six states and (2) potentially compensates non-class members and individuals who would provide no release to Defendants in exchange for a portion of the fund. Defendants state the parties agreed Defendants would pay 12.5% of their potential exposure, and Plaintiffs' plan awards New York and Alabama class members the full amount of statutory damages, as if those plaintiffs prevailed on the merits. According to Defendants, this leaves less funds for the remaining subclasses, and the second round of distribution would exacerbate this disparity. Defendants propose that the Alabama class members receive a maximum of $50 for an approved claim form, regardless of the amount of GCS purchased, New York class members receive a maximum of $100 for an approved claim form, regardless of the amount of GCS purchased and the remaining class members receive a maximum of $20 per approved claim form. Defendants propose that after this distribution, the remaining funds should be distributed to a charity or food bank, under the Court's direction. Federal Rule of Civil Procedure 23(e) requires Court-approval of class action settlements to safeguard the rights of absent class members. Approval of a settlement involves three stages and two hearings. First, the parties present the proposed settlement to the court for preliminary approval. Second, if the Court preliminarily approves the settlement, notice is sent to the class members and they are given an opportunity to object to the terms of the settlement during a fairness hearing. Third, the Court determines whether to give final approval to the settlement and holds a final fairness hearing. The ultimate inquiry is whether the settlement is fair, reasonable, and adequate. After considering the parties' briefing and the applicable law, the Court finds that Plaintiffs' proposed plan is appropriate. As an initial matter, Defendants have no real interest in the allocation of the common fund because they agreed to pay $25 million with no reversion. Similarly, Defendants' argument that Plaintiffs' plan unfairly favors two subclasses over the others or compensates non-class members will be appropriately raised, if at all, by members of the class. Ultimately, it is unclear why Defendants are wrangling over the allocation of the funds when the matter appears to be entirely inconsequential to them from a financial standpoint or otherwise. In sum, Defendants' objections to Plaintiffs' proposed plan for allocation of the common fund and the language of the claim forms are overruled. A full-text copy of the District Court's September 12, 2019 Memorandum and Order is available at https://tinyurl.com/y53r55qu from Leagle.com. Linda Suchanek, Plaintiff, represented by Randy L. Gori - randy@gorijulianlaw.com - Gori Julian and Associates, P.C., Chelsea Lauren Fischer , Gori Julian and Associates, P.C., D. Todd Mathews , Gori, Julian & Associates, PC, 156 North Main St., Edwardsville, IL 62025, David Michael Rosenberg-Wohl -david@hrw-law.com - Hershenson Rosenberg-Wohl, Megan Myers Arvola , Gori, Julian & Associates, PC,156 North Main St., Edwardsville, IL 62025 & Peter H. Burke , Burke Harvey LLC, 3535 Grandview Parkway, Suite 100, Birmingham, AL 35243 Sturm Foods, Inc., Defendant, represented by John F. Zabriskie - jzabriskie@foley.com - Foley & Lardner, pro hac vice, Anne Marie Coghlan - acoghlan@foley.com - Foley & Lardner, LLP, pro hac vice, Craig S. Fochler - cfochler@foley.com - Foley & Lardner, pro hac vice, Jaclyne D. Wallace - jwallace@foley.com - Foley & Lardner, Jonathan W. Garlough - jgarlough@foley.com - Foley & Lardner, LLP, pro hac vice, Patrick G. Walker , Farris Bobango Branan, PLC, 999 South Shady Grove Road, Suite 500, Memphis,TN 38120& Richard Spencer Montei - rmontei@foley.com - Foley & Lardner. Treehouse Foods, Inc., Defendant, represented by Anne Marie Coghlan , Foley & Lardner, LLP, pro hac vice, Craig S. Fochler , Foley & Lardner, pro hac vice, Jaclyne D. Wallace , Foley & Lardner, John F. Zabriskie , Foley & Lardner, pro hac vice, Jonathan W. Garlough , Foley & Lardner, LLP, pro hac vice & Richard Spencer Montei , Foley & Lardner, pro hac vice. TAILORED BRANDS: Continues to Defend Twin Hill Suit --------------------------------------------------- Tailored Brands, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on September 12, 2019, for the quarterly period ended August 3, 2019, that Twin Hill, a company's subsidiary, continues to defend a class action suit initiated by two American Airlines employees. On August 2, 2017, two American Airlines employees, Thor Zurbriggen and Dena Catan, filed a putative class action lawsuit against the company's Twin Hill subsidiary in the United States District Court for the Northern District of Illinois (Case No. 1:17-cv-05648). The complaint alleged claims for strict liability, negligence, and medical monitoring based on allegedly defective uniforms Twin Hill supplied to American Airlines for its employees. On September 28, 2017, the plaintiffs filed an amended complaint adding nine additional named plaintiffs, adding American Airlines, Inc. as a defendant, and adding claims for civil battery and intentional infliction of emotional distress. Plaintiffs filed a Seconded Amended Complaint on October 4, 2018 on behalf of 39 named plaintiffs, adding PSA Airlines, Inc. and Envoy Air Inc. as defendants, adding new factual allegations and adding a new claim of fraud against American. The Second Amended Complaint included plaintiffs from the Onody (Case No. 1:18-cv-02303) and Joy (Case No. 1:18-cv-05808) matters we reported in prior filings. As a result, on October 16, 2018, the judge dismissed the separate Onody and Joy matters. Tailored Brands said, "We have timely answered the Second Amended Complaint and the matter will proceed in due course. We believe that any lawsuit filed on the basis of the safety of the Twin Hill uniforms supplied to American Airlines is without merit, and we intend to contest this action vigorously. Twin Hill has substantial and convincing evidence of the uniforms' safety and fitness for their intended purpose, and we believe that there is no evidence linking any of the plaintiffs' alleged injuries to our uniforms. The range of loss, if any, is not reasonably estimable at this time. We do not currently believe, however, that it will have a material adverse effect on our financial position, results of operations or cash flows." No further updates were provided in the Company's SEC report. Tailored Brands, Inc. operates as a specialty apparel retailer the United States and Canada. It operates through two segments, Retail and Corporate Apparel. The company was formerly known as The Men's Wearhouse, Inc. and changed its name to Tailored Brands, Inc. in February 2016. Tailored Brands, Inc. was founded in 1973 and is based in Houston, Texas. TEK-COLLECT INC: Berardi Sues over Debt Collection Practices ------------------------------------------------------------ PHILIP BERARDI, individually and on behalf of all other similarly situated, Plaintiff v. TEK-COLLECT INCORPORATED d/b/a TEKCOLLECT, INC.; and DOES 1 through 10, inclusive, Defendants, Case No. 2:19-cv-07581 (C.D. Cal., Aug. 30, 2019) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Tek-Collect Incorporated d/b/a Tekcollect, Inc. is a debt collection agency. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (323) 306-4234 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com TEXAS: Removal of 37 Cole Class Members from LeBlanc Unit Ordered ----------------------------------------------------------------- In the case, KEITH COLE, et al, Plaintiffs, v. BRYAN COLLIER, et al, Defendants, Civil Action No. 4:14-CV-1698 (S.D. Tex.), Judge Keith P. Ellison of the U.S. District Court for the Southern District of Texas, Houston Division, has entered an order addressing the severe heat conditions affecting the 37 members of the class of heat-sensitive inmates. During the last 48 hours, the Court has had to convene two emergency hearings to address severe heat conditions in the LeBlanc prison unit of the Texas Department of Criminal Justice. The heat conditions are so severe that TDCJ should, on its own initiative, have taken immediate steps to redress these conditions as they affect all of the approximately 1200 inmates in the LeBlanc Unit. The Court will instead limit itself to addressing the conditions as they affect the 37 members of the Class of heat-sensitive inmates. Uncontroverted evidence has been adduced to show that temperatures vastly in excess of the maximum temperatures set forth in the agreed settlement of the case have prevailed for an undetermined length of time through an undetermined portion of the LeBlanc Unit, including those portions in which Class members are housed. The Defendants have shown negligible interest in ascertaining the breadth of the problem, its likely cause, or the necessary remedies. Accordingly, Judge Ellison finds and holds that the Defendants are in breach of the Final Order and Final Judgment Approving Class Action Settlement and Attorneys' Fees. He ordered that the (i) the 37 members of the Class must be removed from the LeBlanc Unit prior to noon on Aug. 10, 2019; (ii) the members of the Class must be moved to premises that comply with the Final Order; (iii) by no later than 11:00 a.m. on Aug. 12, 2019, a responsible officer of TDCJ will submit an Affidavit, subjecting himself or herself to penalty of perjury, confirming and describing compliance with the Order; and (iv) no member of the Class will suffer any loss of status or any postponement of an applicable release date because of his transfer from the LeBlanc Unit. A full-text copy of the Court's Aug. 9, 2019 Order is available at https://is.gd/Q6XvZu from Leagle.com. Marvin Ray Yates, Jackie Brannum, Richard Elvin King & Fred Wallace, Plaintiffs, represented by Wallis Anne Nader, Texas Civil Rights Project, David Anthony James, Edwards Law, Jeremy L. Doyle -- doyle@reynoldsfrizzell.com -- Reynolds Frizzell LLP, Michael C. Singley, Edwards Law, Natalia Marissa Cornelio, Texas Civil Rights Project, Nathan M. Smith -- nsmith@reynoldsfrizzell.com -- Reynolds Frizzell LLP, Scott Charles Medlock, Edwards Law & Jeffrey S. Edwards -- jeff@edwards-law.com -- The Edwards Law Firm. Keith Cole, Plaintiff, represented by David Anthony James, Edwards Law & Peter Blackmer Steffensen, Texas Civil Rights Project. Lavar John Santee, Plaintiff, represented by David Anthony James, Edwards Law, Jeffrey S. Edwards, The Edwards Law Firm, Jeremy L. Doyle, Reynolds Frizzell LLP, Scott Charles Medlock, Edwards Law & Wallis Anne Nader, Texas Civil Rights Project. Michael Denton, Plaintiff, represented by Jeffrey S. Edwards, The Edwards Law Firm, Peter Blackmer Steffensen, Texas Civil Rights Project, Scott Charles Medlock, Edwards Law & Wallis Anne Nader, Texas Civil Rights Project. Israel Garcia, Plaintiff, represented by Jeffrey S. Edwards, The Edwards Law Firm. Bryan Collier, Roberto M Herrera & Texas Department of Criminal Justice, Defendants, represented by Briana Marie Webb, Office of the Attorney General, Derek Josef Kammerlocher, Office of the Attorney General Law Enforcement Defense Div., John S. Langley, Attorney General of Texas, Leah Jean O'Leary, Office of the Attorney General Law Enforcement Defense Division & Matthew J. Greer, Texas Attorney General. Jeffrey R. Adams, Defendant, pro se. Richard Jaxson, Movant, pro se. Ariel Dulitzky, Non-Party Professor Ariel Dulitzky, Movant, represented by Esteban Soto, Office of the Attorney General of Texas. Dusty Seaton, Movant, pro se. Patrick Ford, Movant, pro se. John Ford, Movant, pro se. TEXTRON INC: Zhang Investor Files Class Action Lawsuit ------------------------------------------------------ Zhang Investor Law announces the filing of a class action lawsuit on behalf of shareholders who bought shares of Textron Inc. (TXT) between January 31, 2018 and October 17, 2018, inclusive (the "Class Period"). To join the class action, go http://zhanginvestorlaw.com/join-action-form/?slug=textron-inc&id=1993 or call Sophie Zhang, Esq. toll-free at 800-991-3756 or email info@zhanginvestorlaw.com for information on the class action. If you wish to serve as lead plaintiff, you must move the Court no later than October 21, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) end-market sales of Arctic Cat Inc. products were slowing, resulting in a massive glut of old Arctic Cat inventory on dealers' floors; (2) in order to clear out this old inventory, Textron provided significant price discounts, which negatively impacted Textron's earnings; and (3) as a result, Textron's public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class has not been certified. You may retain counsel of your choice. You may take no action at this time and be an absent class member. Your ability to obtain a recovery is not dependent upon being a lead plaintiff. Zhang Investor Law represents investors worldwide. Contact: Zhang Investor Law P.C. 99 Wall Street, Suite 232 New York, New York 10005 tel: (800) 991-3756 Email: info@zhanginvestorlaw.com [GN] TITAN LOGISTICS: Court Partly OKs Certification in G. Johnston Suit ------------------------------------------------------------------- The United States District Court for the Western District of Pennsylvania issued a Memorandum Opinion granting in part and denying in part Plaintiffs' Motion for Conditional Certification in the case captioned GLENWOOD JOHNSTON; et al, on behalf of themselves and similarly situated employees, Plaintiffs, v. TITAN LOGISTICS & RESOURCES, LLC; TONY DIGIAMBERDINE; and UNITED VISION LOGISTICS, Defendants. Civ. A. No. 17-1617. (W.D. Pa.). This is a proposed hybrid class/collective action brought by Plaintiffs Glenwood Johnston et al. (Plaintiffs) on behalf of themselves and all other similarly situated drivers against Defendants Titan Logistics & Resources, LLC (Titan) Tony DiGiamberdine and United Vision Logistics (UVL) alleging that Defendants jointly employed them and violated the Fair Labor Standards Act (FLSA) by paying them a day rate without any overtime compensation in weeks that they were driving small trucks weighing less than 10,000 pounds. In their Second Amended Complaint, 24 Plaintiffs allege that they were jointly employed by Defendants and were subject to unlawful compensation policies in violation of the FLSA from December 2014 to November 16, 2017. They now seek conditional certification of a collective action of drivers jointly employed by UVL, Titan and DiGiamberdine; employed by UVL solely; or jointly employed by UVL and some other entity during the past three years, i.e., between 2016 and the present. At the outset, Titan and DiGiamberdine do not object to the proposed conditional certification thereby conceding that Plaintiffs have made a modest factual showing that they were employers of the proposed collective drivers, despite the drivers having been classified as independent contractors, and that they were subject to an unlawful day rate compensation system, working in excess of 40 hours per week without being paid any overtime compensation. Therefore, Plaintiffs' motion will be granted as to their FLSA violations against Titan and DiGiamberdine for the time period of September 2016 to November 2017. As to the disputes between UVL and Plaintiffs, UVL contests conditional certification and raises two alternative objections: UVL first argues that the evidence is insufficient to establish a modest factual showing that it was a joint employer of Plaintiffs during the relevant time frame. UVL next contends that to the extent that a conditional certification order is issued, it should be limited to UVL, Titan and DiGiamberdine as joint employers for the duration of the IOTA, i.e., from September 2016 to November 2017. Plaintiffs respond that they have made the required modest factual showing as their joint employer allegations have moved beyond the pleading stage and they have further supported same with declarations of four representative drivers and Titan's principal DiGiamberdine, as well as the deposition testimony of two high-level UVL executives, i.e., Rusty Guilbeau and Stan Stricklen. While Plaintiffs believe that they are entitled to conditional certification of the broader collective, counsel asserted at the motion hearing that they are amenable to an order notifying only those drivers jointly employed by UVL, Titan and DiGiarmberdine. Having carefully considered the parties' positions, the Court will grant Plaintiffs' motion to the extent that it will issue an order conditionally certifying a collective action consisting of drivers alleging they were jointly employed by UVL, Titan and DiGiamberdine from September 2016 to November 2017, as they have alleged in their Second Amended Complaint. The Court's rationale follows. Although the Court is not yet in a position to decide the ultimate merits of Plaintiffs' overtime claims, the initial step is to define the claims at issue. Relevant here, an employer must pay its employees one and one-half times the employer's regular wage for hours worked in excess of forty hours per week. The parties do not contest that truck drivers operating vehicles with gross weights less than 10,000 pounds are generally not exempt from FLSA overtime requirements. To obtain conditional certification, it is Plaintiffs' burden to make a modest factual showing" that there is a factual nexus between the manner in which the employer's alleged policy affected Plaintiffs and the manner in which it affected other employees. In other words, Plaintiffs must show three things: (1) an employer policy (2) that affected the Plaintiffs in a particular way and (3) that also affected other employees in a similar way. In this Court's estimation, Plaintiffs have made a modest factual showing sufficient to conditionally certify a collective action of drivers alleging they were jointly employed by UVL, Titan and DiGiamberdine from September 2016 to November 2017. Plaintiffs allege in their Second Amended Complaint that they were jointly employed by UVL, Titan and Digiamberdine during that time period and were not paid overtime compensation when working more than 40 hours per week despite performing non-exempt roles driving trucks weighing less than 10,000 pounds. They have sufficiently supported these allegations with the declarations of four drivers (i.e., Johnston, With, Gould, and Herrington), and DiGiarmberine as well as the deposition testimony of UVL executives. In this regard, the evidence demonstrates that the drivers were designated as independent contractors reporting to Titan's Oakdale, Pennsylvania terminal from September 2016 to November 2017. They worked more than 40 hours per week performing non-exempt duties fulfilling movement requests for UVL and its customers but were not provided with overtime pay under the day rate compensation system. They further assert that for some of the weeks near the end of the relationship between Titan and UVL, they were not paid at all. There are now 70 drivers who are either named Plaintiffs or have opted-in to the FLSA collective and the four drivers declare that these individuals as well as others worked under the same conditions and were subject to the same unlawful compensation system. The Court recognizes that UVL challenges the allegations that it is a joint employer and raises several merits-based defenses to the claims. However, as in the misclassification cases, because a modest factual showing has been made, these arguments are best reserved for step-two, at which time the merits of the claims are considered and evaluated by the Court against a more fully developed record. Overall, the Court finds that Plaintiffs have made a modest factual showing that UVL, Titan and DiGiamberdine were their joint employers from September 2016 to November 2017 and will certify the FLSA collective action for that time period. The last issue for the Court to address is Plaintiffs' position that the Court should expand its notice to include drivers who were employed by UVL only and/or UVL and any other entity (including but not limited to J.R. Logistics) during the past three years. The Court denies this request for several reasons. First, these proposed collective allegations are beyond the scope of the Second Amended Complaint which is limited to the twenty-four named Plaintiffs' joint employer allegations against Titan, DiGiamberdine and UVL ending in November of 2017 and it is well settled that Plaintiffs cannot amend their complaint through assertions in briefs as they have attempted here. Plaintiffs' motion may be denied on this basis alone. Second, to the extent that Plaintiffs desired to amend their complaint a third time in order to assert claims against UVL solely and/or UVL and some other entity for FLSA violations during the past three years, the deadline for filing motions to amend the complaint of May 23, 2018 has long since passed and Plaintiffs have made no effort to demonstrate good cause for failing to comply with the Court's deadline. They likewise had this information before the deadline of May 23, 2018 to amend pleadings but did not pursue this expanded collective action until filing their motion to certify nearly a year later on May 8, 2019. UVL is also prejudiced by the proposed expansion of the case at this late juncture in that discovery on class action and conditional certification is concluded and, as is reflected in the parties' Rule 26(f) Report, the parties were seeking discovery for the time period ending on November 24, 2017, which, again, coincided with the termination of the Titan/UVL agreement. Third, Plaintiffs have not made a modest factual showing that they were similarly situated to the other drivers they seek to notify of the collective action who do not allege that they were jointly employed by Titan, DiGiamberdine and UVL while the IOTA was pending from September 26, 2016 to November 24, 2017. With respect to named Plaintiffs who allegedly worked with UVL and/or JR Logistics after Titan was terminated in November 2017, the record evidence is sparse, at best, and lacks a direct connection to this District. To reiterate, none of the twenty-four named Plaintiffs alleged in their Second Amended Complaint that they worked for UVL solely or jointly for UVL and some other entity in that subsequent time period. The only evidence supporting these potential claims are three declarations of drivers, two of whom are named Plaintiffs, Johnston and Gould and a single opt-in, With,3 each of whom admit that they worked out of the Cheyenne, Wyoming terminal. Plaintiffs' Motion for Conditional Certification is GRANTED, IN PART, and DENIED, IN PART. Said motion is granted to the extent that the Court will conditionally certify an FLSA collective action consisting of drivers who allege that: they were jointly employed by UVL, Titan and DiGiamberdine from September 2016 to November of 2017, drove small vehicles weighing less than 10,000 pounds, worked more than 40 hours per week and were not paid overtime compensation. The term drivers includes individuals holding positions of truck driver, chase driver and dispatcher or other similar positions with responsibility for driving small vehicles. A full-text copy of the District Court's September 12, 2019 Memorandum Opinion is available at https://tinyurl.com/y4krzuhh from Leagle.com. GLENWOOD JOHNSTON, LADEL RICHARDS, TRACY GUINARD, EDWARD RICHARD REYNOLDS, NORMAND MAILLET, KAVID HARRIS, SHANNON HOUCHIN, CHEVY BURSE, JACKIE CHRISTIANSEN, TODD BROOKS, JOE SANDOVAL, MICHAEL BAZAN, JERRY LYNN TRYON, DELVIN WASHINGTON, GREG MONKRESS, SEAN WILLIAMS, RICHARD HAKE, MATTHEW SCHWARZ, BRIAN GOULD, WILLIAM SHULTZ, RONNIE PHILLIPS, GEORGE WOELICH, JAMIE GARLAND & SYMEON DORSEY, on behalf of themselves and similarly situated employees, Plaintiffs, represented by Joseph H. Chivers. TITAN LOGISTICS & RESOURCES, LLC & TONY DIGIAMBERDINE, Defendants, represented by Kathryn M. Wakefield - kwakefieldbizlaw@gmail.com - Wakefield Law Group, P.C. UNITED VISION LOGISTICS, Defendant, represented by Robert P. Walter - rwalter@pwlawinc.com - Poerio & Walter, Inc. UNITED VISION LOGISTICS, Cross Claimant, represented by Robert P. Walter , Poerio & Walter, Inc. TONY DIGIAMBERDINE & TITAN LOGISTICS & RESOURCES, LLC, Cross Defendants, represented by Kathryn M. Wakefield , Wakefield Law Group, P.C. UNITED VISION LOGISTICS, Cross Defendant, represented by Robert P. Walter , Poerio & Walter, Inc. TONY DIGIAMBERDINE, Cross Claimant, represented by Kathryn M. Wakefield , Wakefield Law Group, P.C.. TOP SHELF PROVISIONS: Seeks 2nd Cir. Review of Order in Piccolo --------------------------------------------------------------- Defendants Anthony Cicciari, Rich Dalhem and Top Shelf Provisions Co. Inc. filed an appeal from a District Court order issued on August 7, 2019, in the lawsuit titled Piccolo v. Top Shelf Provisions Co. Inc., et al., Case No. 16-cv-6930, in the U.S. District Court for the Eastern District of New York. The lawsuit alleges violations of the Fair Labor Standards Act. The appellate case is captioned as Piccolo v. Top Shelf Provisions Co. Inc., et al., Case No. 19-2825, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiff-Appellee Louis Piccolo, individually and on behalf of those similarly situated, is represented by: Saul D. Zabell, Esq. ZABELL & ASSOCIATES, P.C. 1 Corporate Drive Bohemia, NY 11716 Telephone: (631) 589-7242 E-mail: SZabell@laborlawsny.com Defendants-Appellants Top Shelf Provisions Co. Inc., et al., are represented by: Joseph Martin Labuda, Esq. MILMAN LABUDA LAW GROUP PLLC 3000 Marcus Avenue Lake Success, NY 11042 Telephone: (516) 328-8899 E-mail: joe@mmmlaborlaw.com TRANS WORLD: Discovery in Consolidated Spack Suit Ongoing --------------------------------------------------------- Trans World Entertainment Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on September 17, 2019, for the quarterly period ended August 3, 2019, that discovery is ongoing in the consolidated class action suit entitled, Spack v. Trans World Entertainment Corp. The company is defending two pending class actions. The first, Spack v. Trans World Entertainment Corp. was originally filed in the District of New Jersey, April 2017 (the "Spack Action"). The Spack Action alleges that the Company misclassified Store Managers ("SMs") as exempt nationwide. It also alleges that Trans World improperly calculated overtime for Senior Assistant Managers "SAMs" nationwide, and that both SMs and SAMs worked "off-the-clock." It also alleges violations of New Jersey and Pennsylvania State Law with respect to calculating overtime for SAMs. The second, Roper v. Trans World Entertainment Corp., was filed in the Northern District of New York, May 2017 (the "Roper Action"). The Roper Action also asserts a nationwide misclassification claim on behalf of Store Managers. Both actions were consolidated into the Northern District of New York, with the Spack Action being the lead case. Plaintiffs moved for conditional certification of a collective of SMs in June 2018, and that motion was partially granted in January 2019. The opt-in period for the collective that was certified was closed on April 6, 2019. Opt-in discovery relating to that potential collective has commenced. The Company believes it has meritorious defenses to the plaintiffs' claims and intends to vigorously defend the action. Trans World Entertainment Corporation, together with its subsidiaries, operates as a specialty retailer of entertainment products. The company operates in two segments, For Your Entertainment (fye) and etailz. The fye segment offers trend, video, music, electronics, and related products, as well as used compact discs, DVDs, Blu-Ray, and video games through its retail stores and e-commerce sites. Trans World Entertainment Corporation was founded in 1972 and is headquartered in Albany, New York. TRANS WORLD: New Suit over VIP Backstage Pass Memberships Ongoing ----------------------------------------------------------------- Trans World Entertainment Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on September 17, 2019, for the quarterly period ended August 3, 2019, that the company continues to defend a putative class action suit in Massachusetts related to Loyalty Memberships and Magazine Subscriptions. On November 14, 2018, three consumers filed a punitive class action complaint against the Company and Synapse Group, Inc. in the United States District Court for the District of Massachusetts, Boston Division (Case No.1:18-cv-12377-DPW) concerning enrollment in the Company's Backstage Pass VIP loyalty program and associated magazine subscriptions. The complaint alleged, among other things, that the Company's "negative option marketing" misled consumers into enrolling for membership and subscriptions without obtaining the consumers' consent. The complaint sought to represent a nationwide class of "all persons in the United States" who were enrolled in and/or charged for Backstage Pass VIP memberships and/or magazine subscriptions, and to obtain statutory and actual damages on their behalf. On April 11, 2019, the plaintiffs voluntarily dismissed their lawsuit. On May 8, 2019, two of the plaintiffs from the dismissed lawsuit filed a similar punitive class action in Massachusetts state court (Civ. Act. No. 197CV00331, Mass. Super. Ct. Hampden Cty.), based on the same allegations, but this time seeking to represent only a class of "FYE customers in Massachusetts" who were charged for VIP Backstage Pass Memberships and/or magazine subscriptions. The Company believes it has meritorious defenses to the plaintiffs' claims and, if the new case is not dismissed in full, the Company intends to vigorously defend the action. No further updates were provided in the Company's SEC report. Trans World Entertainment Corporation, together with its subsidiaries, operates as a specialty retailer of entertainment products. The company operates in two segments, For Your Entertainment (fye) and etailz. The fye segment offers trend, video, music, electronics, and related products, as well as used compact discs, DVDs, Blu-Ray, and video games through its retail stores and e-commerce sites. Trans World Entertainment Corporation was founded in 1972 and is headquartered in Albany, New York. UBER TECHNOLOGIES: $20M Deal in Calif. & Mass. Drivers Suit Okayed ------------------------------------------------------------------ The United States District Court for the Northern District of California has approved the settlement of the consolidated case, O'Connor, et al., v. Uber Technologies, Inc. and Yucesoy v. Uber Technologies, Inc., et al., at the Final Approval Hearing, "Fairness Hearing," held on August 29, 2019. Once the settlement becomes final, Defendants can begin the process of distributing payments, which they expect should be able to occur this fall. According to Uber Technologies, Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2019, O'Connor and Yucesoy are two putative class actions that assert various independent contractor misclassification claims brought on behalf of certain Driver Partners in California and Massachusetts, respectively. The two cases were consolidated and both are pending in the United States District Court for the Northern District of California. Filed on August 16, 2013 in the United States District Court for the Northern District of California, the O'Connor action is a class action against the Company on behalf of all Driver Partners who contracted with the Company in California between 2009 and February 28, 2019 and seeks damages for tips and business expense reimbursement based on alleged independent contractor misclassification and unfair competition. The O'Connor action was stayed in the trial court pending the outcome of appeals before the Ninth Circuit Court of Appeals regarding the trial court's orders denying the Company's motions to compel arbitration, order certifying the class action, and order enjoining the Company's enforcement of its arbitration agreement. The Ninth Circuit issued its rulings on those appeals on September 25, 2018, finding that the Company's arbitration agreements were enforceable and accordingly, decertified the O'Connor class and remanded the case to the district court for further proceedings. Filed on June 2, 2014 in the Massachusetts Suffolk County Superior Court, the Yucesoy action is a class action against the Company on behalf of all Driver Partners in Massachusetts and seeks damages based on independent contractor misclassification, tips law violations and tortious interference with contractual and/or advantageous relations. Plaintiffs filed an amended complaint in the Yucesoy action on March 30, 2018 adding new class representatives, to which the Company filed a motion to compel arbitration and/or dismiss the action on April 26, 2018. On March 11, 2019, the parties entered into a Settlement Agreement which provides that the Company will pay US$20 million to settle the O'Connor and Yucesoy actions. The proposed settlement does not require the Company to start classifying Driver Partners as employees in California or Massachusetts and does not include those Driver Partners who are subject to arbitration. Plaintiffs filed a motion with the United States District Court for the Northern District of California seeking court approval of the settlement agreement. The motion for preliminary approval of the parties' settlement agreement was heard on March 21, 2019, and preliminary approval was granted subject to certain conditions. In May 2019, the Company reached agreements to resolve independent contractor misclassification claims of Driver Partners in California and Massachusetts that have filed (or expressed an intention to file) arbitration demands. Under the agreements, certain Driver Partners are eligible for settlement payments, subject to a threshold number of the covered Driver Partners entering into individual settlement agreements. The Company anticipates the aggregate amount of payments to Driver Partners under these individual settlement agreements, together with attorneys' fees, will fall within an approximate range of US$146 million to US$170 million. Additional information on the case is available at: https://www.uberlitigation.com/ Uber Technologies, Inc. develops and supports proprietary technology applications that enable independent providers of ridesharing, and meal preparation and delivery services to transact with riders and eaters worldwide. The company operates in two segments, Core Platform and Other Bets. The company was formerly known as Ubercab, Inc. and changed its name to Uber Technologies, Inc. in February 2011. Uber Technologies, Inc. was founded in 2009 and is headquartered in San Francisco, California. ULTA BEAUTY: Smith-Brown et al. Seek to Certify Class ----------------------------------------------------- In the class action lawsuit styled as KIMBERLEY LAURA SMITH-BROWN, et al., Individually and on Behalf of All Others Similarly Situated, the Plaintiffs, vs. ULTA BEAUTY, INC. and ULTA SALON, COSMETICS & FRAGRANCE, INC., the Defendants, Case No. 1:18-cv-00610 (N.D. Ill.), the Plaintiffs ask the Court for an order: 1. certifying a class of: "all persons who purchased, other than for resale, used beauty products from Ulta retail stores in Alabama, California, Florida, Georgia, Illinois, Indiana, Maryland, Michigan, Nevada, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, South Carolina, Washington, and Wisconsin". The Plaintiffs and the states they seek to represent are: Kimberley Laura Smith-Brown (CA), Quinn Allen (MD), Ilene Anchell (FL), Brittany Caffrey (PA), Kris Dane (NV), Karen Eonta (PA), Valarie Hutchison (WI), Kristen Jackson (IN), Cristina Kovacs (IL), Michelle Musk (RI), Robin Okman (CA), Paula Ogurkiewicz (IL & NV), Jennifer Sacks (MI & CA), Veronica Sanders (GA), Deanna Shaw (WA), Allison Sot (NJ, PA & SC), Shasta Swaney (SC & AL), Colleen Thornton (NY & IL), Alice Vitiello (OH), and Tammy Walker (AL, GA & FL). The Classes exclude: (i) Defendants and their officers and directors, agents, affiliates, and subsidiaries; (ii) all Class members who timely and validly request exclusion from the Class; and (iii) the Judge presiding over this action. The claims do not include personal injury claims. The "Class Period" for each claim extends backward the length of the statute of limitations from the date that the class representative filed the claim and continues until the date a judgment is entered.; 2. designating Plaintiffs as the Class representatives; and 3. appointing The Sultzer Law Group P.C. and McLaughlin & Stern, LLP as Class Counsel and Wolf Haldenstein Adler Freeman & Herz LLC as Local/Liaison Counsel.[CC] Counsel for the Plaintiffs and the Proposed Classes are: Carl V. Malmstrom, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC 111 W. Jackson Street, Suite 1700 Chicago, IL 60604 Telephone: (312) 984-0000 Facsimile: (312) 212-4401 E-mail: malmstrom@whafh.com - and - Lee S. Shalov, Esq. Jason Giaimo, Esq. MCLAUGHLIN & STERN LLP 260 Madison Avenue New York, NY 10016 Telephone: (212) 448-1100 Facsimile: (212) 448-0066 E-mail: lshalov@mclaughlinstern.com jgiaimo@mclaughlinstern.com - and - Janine L. Pollack, Esq. THE SULTZER LAW GROUP P.C. 270 Madison Ave., Suite 1800 New York, NY 10016 Telephone: (212) 969-7810 Facsimile: (888) 749-7747 E-mail: pollackj@thesultzerlawgroup.com - and - Howard T. Longman, Esq. Melissa R. Emert, Esq. STULL, STULL & BRODY 6 East 45 th Street New York, NY 10017 Telephone: (212) 687-7230 Facsimile: (212) 490-2022 E-mail: hlongman@ssbny.com memert@ssbny.com - and - Thomas A. Zimmerman, Jr., Esq. Sharon A. Harris, Esq. Nickolas A. Hagman, Esq. Matthew C. De Re, Esq. ZIMMERMAN LAW OFFICES, P.C. 77 W. Washington Street, Suite 1220 Chicago, IL 60602 Telephone: (312) 440-0020 Facsimile: (312) 440-4180 E-mail: tom@attorneyzim.com sharon@attorneyzim.com nick@attorneyzim.com matt@attorneyzim.com - and - Gustavo Bruckner, Esq. Samuel J. Adams, Esq. Louis C. Ludwig, Esq. POMERANTZ LLP 600 Third Ave. New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (917) 463-1044 E-mail: gfbruckner@pomlaw.com sjadams@pomlaw.com lcludwig@pomlaw.com UNITED STATES: Navy Sued Over Aircraft Noise in Whidbey ------------------------------------------------------- Jessie Stensland, writing for South Whidbey Record, reports that attorneys representing 24 individuals and couples in Central Whidbey, in Washington, filed a lawsuit that seeks damages from the Navy over EA-18G Growler aircraft practice. The lawsuit, filed in the U.S. Court of Federal Claims, seeks class-action status and claims that the noise of the aircraft and the planned 400-percent increase in aircraft landing practice at the Outlying Field Coupeville represents a "physical taking without compensation" because of the decreased value of the residents' homes. The residents are represented by two national law firms, Susman Godfrey and Marcella Law. Steve Morrissey, Esq. -- smorrissey@susmangodfrey.com -- a partner with Susman Godfrey and counsel to the class of plaintiffs in the case, said the law firm was invited to attend a meeting of the Sound Defense Alliance in Coupeville in April at the Crockett Farm in Coupeville. Attorneys spoke to residents of Admirals Cove, the Central Whidbey neighborhood in the OLF flight path, who described the impacts the Growler noise has had on their lives and the value of their properties. Morrissey said the lawsuit is the only way the residents can get monetary relief for the impact the Navy has had on their lives. "The lawsuit alleges that the 24 named plaintiffs have sustained tens of millions of dollars in damages," according to a statement from the law firm. "Damages to potential class members from the area surrounding the airstrip will likely total in the hundreds of millions of dollars." After a process governed by the National Environmental Policy Act, the secretary of the Navy announced in March the decision to bring 36 more Growlers to Naval Air Station Whidbey Island and to conduct 80 percent of the practice at OLF Coupeville. The projected number of "passes" at the fields will increase from 3,000 a year to more than 12,000. Morrissey said common sense dictates that the small airstrip in the midst of residential development and farmland is not the right place for vital warplane practice. "It looks like a small farm with an airstrip," he said. "The ideas that thousands of flights will take place there strikes me as kind of crazy." In the record of decision, the Navy explained that OLF Coupeville provides invaluable training to Growler pilots because of the terrain, the surrounding darkness and other factors mimic aircraft carrier landings. In comparison, training at Ault Field in North Whidbey is challenging because of the amount of activity from other aircraft, plus more residents are affected by the noise in the area. Steve Bristow, past president of the Oak Harbor Council of the Navy League, said real estate values on Whidbey correlate to national trends without correlation to Navy flight operations. "There can be no conversation about property values without the air station's Fortune 500-level economic engine and its impact," he said. State Attorney General Bob Ferguson, Esq. and the group Citizens of Ebey's Reserve filed lawsuits in federal court in July against the Navy, contending the Navy's analysis under NEPA for the increase in Growlers inadequately examined the impact the jet noise has on human health, the natural environment and historic resources. Morrissey said the law firms were building their case before these lawsuits, but that they have the potential to impact the class-action lawsuit. According to Morrissey, there is precedence for the litigation against the Navy. Residents of Virginia Beach filed a class-action lawsuit against the Navy 18 years ago over the noise from an increase in F/A-18 Hornets at the nearby base; Growlers are a specialized version of the Hornet. Under a settlement, the Navy paid homeowners millions of dollars in compensation. According to Morrissey, Admirals Cove residents sued the Navy over aircraft noise from OLF Coupeville in the 1980s. The parties came to a settlement, which Morrissey claims the Navy has violated with the increase in Growlers. The details of the settlements may be key to the litigation, he said. In addition, the lawsuit states that the Navy and the town of Coupeville came to a verbal agreement years ago that the Navy wouldn't fly past 10 p.m., though Morrisseey admits there is no written record of it. Nowadays, the Growlers commonly fly until midnight. In addition to the noise, the lawsuit argues that the residents are facing an unreasonable risk from aircraft crashing into their homes. The lawsuit states that the Admirals Cove neighborhood is within the "accident potential zone" of OLf Coupeville, which is the area off the end of airstrips that are at greatest risk of aircraft crashes. If the court grants class-action status, residents within the "class area" will receive letters asking them to take part in the lawsuit. "Our clients are patriotic people who value and respect the Navy's mission, the important role the service members stationed at NAS Whidbey serve in fulfilling that mission and the longstanding role of the Navy in supporting the economy on the island," Morrissey said. "But these unilateral actions that the Navy has taken through its dramatic increase in flight activities at OLF Coupeville have severe impacts on area residents, and the Navy must be held responsible for what it has done to area properties and property values." The lawsuit describes how the noise and vibrations from the Growlers impact each of the residents' lives. "With the new Growler flights flying repeatedly less than 100 feet directly over my house, the noise and house shaking is now intolerable," said Paul Firnstahl, who is a Vietnam War veteran with a disability rating for PTSD and Agent Orange exposure. "But I have no choice but to stay since I am on a fixed income and have nowhere to go with my high mortgage." [GN] VENATOR MATERIALS: Kessler Topaz Files Class Action --------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP announces that the firm has filed a securities fraud class action lawsuit against Venator Materials PLC (VNTR) ("Venator") on behalf investors who purchased or acquired Venator ordinary shares between August 2, 2017, and October 29, 2018, both dates inclusive (the "Class Period"), including those who purchased or otherwise acquired Venator ordinary shares pursuant and/or traceable to the registration statements and prospectuses issued in connection with Venator's August 3, 2017 initial public offering (the "IPO") and December 4, 2017 secondary public offering (the "SPO") (collectively, the "Offerings"). This action, captioned Cambria County Employees Retirement System v. Venator Materials PLC, et al., Case No. 4:19-cv-03464 (the "Cambria County Action"), was filed in the United States District Court for the Southern District of Texas (Houston Division) and pleads the same Class Period as pled in the first-filed securities fraud class action lawsuit captioned City of Miami General Employees' & Sanitation Employees' Retirement Trust v. Venator Materials PLC, et al., Case No. 1:19-cv-07182, filed in the United States District Court for the Southern District of New York. The filing of the Cambria County Action does not change the September 30, 2019 deadline for investors who purchased or acquired Venator ordinary shares during the Class Period to seek to be appointed as a lead plaintiff representative of the class. For additional information or to learn how to participate in this action please visit: www.ktmc.com/new-cases/venator-materials-plc. Venator is a global chemical company primarily focused on the development and production of titanium dioxide ("TiO2") and performance additives, including functional additives, color pigments, timber treatments and water treatments. Prior to the IPO, Venator operated as a division of Defendant Huntsman Corporation ("Huntsman"). Prior to its spin-off from Huntsman, Venator operated a major TiO2 manufacturing facility in Pori, Finland (the "Facility"). The Facility's output constituted a substantial percentage of Venator's business. On January 30, 2017, the Facility was engulfed by a massive fire (the "Fire"). After the Fire, Huntsman assured the public that the Fire had been "quickly" extinguished and that the Facility was "insured for property damages as well as earnings losses." Huntsman also assured investors that it was "committed to repairing the [F]acility as quickly as possible." On August 3, 2017, less than eight months after the Fire, Huntsman spun-off Venator by completing the IPO. In connection with the IPO, Huntsman raised $522 million in proceeds by issuing more than 26 million ordinary shares at a price of $20.00 per share. The prospectus and registration statement issued in connection with the IPO assured investors that Venator was "committed to repairing the [F]acility as quickly as possible" and that Venator expected a gradual return to functionality, with the Facility being restored to "approximately 40% capacity in the second quarter of 2018; and full capacity around the end of 2018." The prospectus and registration statement also stated that the Facility would be repaired with insurance proceeds and within the insurance policy limits. On December 4 2017, Venator completed its SPO, raising $533 million in proceeds by selling more than 23.7 million ordinary shares. The complaint alleges that investors began to learn the truth of the Defendants' misleading statements through a series of disclosures. For example, on July 31, 2018, Venator revealed that the Facility was much more severely damaged by the Fire than had previously been disclosed. Following this news, the price of Venator ordinary shares declined $0.73 per share, or approximately 4.8%, from a close of $15.35 per share on July 30, 2018, to close at $14.62 per share on July 31, 2018. Then, on September 12, 2018, Venator informed investors that it was now abandoning its attempts to repair the Facility because production capacity at the Facility had not meaningfully improved since the Offerings. The Defendants also admitted that, due to this decreased capacity, Venator was no longer a leading producer of TiO2. Additionally, the Defendants announced that Venator would incur up to $150 million in additional costs to close the Facility. Following this news, the price of Venator ordinary shares declined $0.54 per share, or approximately 4.8%, from a close of $11.35 per share on September 11, 2018, to close at $10.81 per share on September 12, 2018. Finally, on October 30, 2018, Venator disclosed that, in addition to more than $500 million in Fire-related costs and lost business covered by Venator's insurance policy, Venator incurred an additional restructuring charge of approximately $415 million and would incur further charges of $220 million through 2024 related to the closure of the Facility. Following this news, the price of Venator ordinary shares declined $1.53 per share, or 19%, from a close of $8.00 per share on October 29, 2018, to close at $6.47 per share on October 30, 2018. The complaint alleges that, throughout the Class Period, the Defendants failed to disclose that: (1) the Fire was far more damaging to the Facility than had been represented to investors, resulting in over $1 billion in damage and rendering the Facility beyond repair; (2) the damage to the Facility exceeded Venator's insurance policy limits by hundreds of millions of dollars; (3) Venator had lost, with essentially no hope of restoration, approximately 80% of the Facility's TiO2 production capacity; (4) Venator incurred tens of millions of dollars in costs in connection with attempts to repair the Facility; (5) Venator's reported annual TiO2 production capacity was inflated by approximately 15%; and (6) as a result, Venator would incur over $600 million in restructuring expenses and other charges associated with the closure and replacement of the Facility. If you wish to discuss this securities fraud class action lawsuit or have any questions concerning this notice or your rights or interests with respect to this litigation, please contact Kessler Topaz Meltzer & Check (James Maro, Jr., Esq. or Adrienne Bell, Esq.) at (844) 887-9500 or (610) 667–7706, or via e-mail at info@ktmc.com. Venator investors may, no later than September 30, 2019, seek to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check, or other counsel, or may choose to do nothing and remain an absent class member. A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. In order to be appointed as a lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. Kessler Topaz Meltzer & Check prosecutes class actions in state and federal courts throughout the country involving securities fraud, breaches of fiduciary duties and other violations of state and federal law. Kessler Topaz Meltzer & Check is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). For more information about Kessler Topaz Meltzer & Check, please visit www.ktmc.com. [GN] VIEWRAY INC: Robbins Geller Files Class Action Lawsuit ------------------------------------------------------ Robbins Geller Rudman & Dowd LLP (http://www.rgrdlaw.com/cases/viewray/)announced that a class action has been commenced on behalf of purchasers of ViewRay, Inc. (NASDAQ:VRAY) common stock during the period between March 15, 2019 and August 8, 2019 (the "Class Period"). This action was filed in the Northern District of Ohio and is captioned Corwin v. ViewRay, Inc., et al., No. 19-cv-2115. The Private Securities Litigation Reform Act of 1995 permits any investor who purchased ViewRay common stock during the Class Period to seek appointment as lead plaintiff. A lead plaintiff acts on behalf of all other class members in directing the litigation. The lead plaintiff can select a law firm of its choice. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from today. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Mary K. Blasy of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at mblasy@rgrdlaw.com. You can view a copy of the complaint as filed at http://www.rgrdlaw.com/cases/viewray/ The complaint charges ViewRay and certain of its officers and directors with violations of the Securities Exchange Act of 1934. ViewRay designs, manufactures, and markets radiation therapy systems sold in the United States and internationally in-house and through distributors. The complaint alleges that throughout the Class Period, defendants issued materially false and misleading statements that failed to disclose adverse facts concerning the Company's business, operations and financial results. Specifically: (a) that demand for ViewRay systems had declined due in part to changes being made to Medicare reimbursement approaches first announced in November 2019 that could make purchases of new ViewRay systems less profitable for customers; (b) that the Company's reported backlog was overstated due to the inclusion of orders with insufficient surety as to permit for their inclusion in reported backlog; and (c) that as a result of the foregoing, defendants' positive statements about ViewRay's business metrics and financial prospects during the Class Period were materially false and misleading and/or lacked a reasonable basis. On August 8, 2019, after the close of trading, ViewRay disclosed operational issues and slashed its previously issued full fiscal year 2019 financial guidance. In response to this news, the price of ViewRay common stock price declined by more than 50%, or $3.64 per share, to close down at $3.10 per share on August 9, 2019, on unusually high trading volume of more than 26.6 million shares trading, or nearly 16x the average volume over the preceding ten trading days. Plaintiff seeks to recover damages on behalf of all purchasers of ViewRay common stock during the Class Period (the "Class"). The plaintiff is represented by Robbins Geller, which has extensive experience in prosecuting investor class actions including actions involving financial fraud. Robbins Geller Rudman & Dowd LLP is one of the world's leading law firms representing investors in securities litigation. With 200 lawyers in 9 offices, Robbins Geller has obtained many of the largest securities class action recoveries in history. For six consecutive years, ISS Securities Class Action Services has ranked the Firm in its annual SCAS Top 50 Report as one of the top law firms in the world in both amount recovered for shareholders and total number of class action settlements. Robbins Geller attorneys have helped shape the securities laws and have recovered tens of billions of dollars on behalf of aggrieved victims. Beyond securing financial recoveries for defrauded investors, Robbins Geller also specializes in implementing corporate governance reforms, helping to improve the financial markets for investors worldwide. Robbins Geller attorneys are consistently recognized by courts, professional organizations and the media as leading lawyers in the industry. Please visit http://www.rgrdlaw.comfor more information. Contacts: Mary K. Blasy, Esq. Robbins Geller Rudman & Dowd LLP Tel: 800-449-4900 Email: mblasy@rgrdlaw.com [GN] VIRTUOSO SOURING: Court Dismisses FDCPA Claims in Gottesman Suit ---------------------------------------------------------------- In the case, CHANA GOTTESMAN, individually and on behalf of all others similarly situated, Plaintiffs, v. VIRTUOSO SOURING GROUP, LLC, JOHN DOES 1-25, Defendants, Civil Action No. 3:18-cv-16759-FLW-LHG (D. N.J.), Judge Freda L. Wolfson of the U.S. District Court for the District of New Jersey granted the Defendant's motion to dismiss Plaintiff's Fair Debt Collection Practices Act ("FDCPA") claims pursuant to Fed. R. Civ. P. 12(b)(6). The putative class action arises out of Plaintiff Gottesman's claim that Defendant VSG and John Does 1-25, violated the FDCPA by sending a false or misleading debt collection letter that failed to effectively inform the Plaintiff what she must do in order to dispute the alleged debt. The Plaintiff filed the putative class action suit on Dec. 3, 2018, against the Defendant. The Plaintiff is a resident of Toms River, New Jersey. The Defendant is a debt collection agency operating in Glendale, Colorado. On Aug. 9, 2018, the Defendant sent to the Plaintiff a one-page collection letter, dated Aug. 9, 2018, regarding a debt owed to ADT Security in the amount of $1,095.70. Based on this communication, the Plaintiff alleges that VSG violated (i) 15 U.S.C. Section 1692e by making a false and misleading representation in connection with the collection of the debt, such that the Letter is open to more than one reasonable interpretation, at least one of which is inaccurate; and (ii) that VSG violated 15 U.S.C. Section 1692g, by falsely misstating the consumer's rights by omitting the requirement that the consumer must request validation and make any dispute of the debt in writing. The Plaintiff alleges that the Letter does not meet the required guidelines of the FDCPA, because in its validation notice, the first sentence leaves out the requirement that a consumer must dispute in writing, and the second sentence begins: "If you, the consumer, notify this collection agency in writing," implying that the writing requirement is voluntary. When coupled with the failure of the first sentence to contain any mention of the word "writing," the Plaintiff alleges that the least sophisticated consumer would be confused as to what her actual requirements are for properly disputing the debt. The Defendant moves to dismiss the laintiff's claims, arguing that the Plaintiff fails to state a legal claim under the FDCPA. Judge Wolfson does not deem the language of the Letter to be an abusive debt collection practice because it closely tracks the statutory language provided in Section 1692g(a), without providing confusing, alternative ways to dispute the debt that would contradict the validation. VSG likely relied upon the plain language of the statute and mirrored such language in its debt collection letters. the As a matter of fairness, Defendant should not be subjected to statutory liability in this context when it reasonably relied on the very statute to craft the notice at issue. In addition, the consumer would understand that the notification mentioned in the second sentence refers to the first; that is, read together, unless the debtor disputes the debt in writing, the debt would be presumed valid. The use of the word "if" in the validation notice, as it was used in the case, would not confuse a consumer as to how to dispute the debt because the Letter does not suggest that a debtor may dispute the debt in any other method besides the in-writing requirement. The Plaintiff's Section 1692e claim is premised on the same allegations as her Section 1692g claim. Because the Plaintiff's Section 1692g claim fails, similarly, her Section 1692e claim also fails. Under Section 1692e(10), the use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer is prohibited. When allegations under 15 U.S.C. Section 1692e(10) are based on the same language or theories as allegations under 15 U.S.C. Section 1692g, the analysis of the Section 1692g claim is usually dispositive. Therefore, for the reasons why the Plaintiff fails to state a claim under Section 1692g, her claim under Section 1692e fails for the same reasons. Based on the forgoing, Judge Wolfson granted the Defendant's motion to dismiss. A full-text copy of the Court's Aug. 9, 2019 Opinion is available at https://is.gd/c94RvW from Leagle.com. CHANA GOTTESMAN, individually and on behalf of all other similarly situated, Plaintiff, represented by YAAKOV SAKS -- info@steinsakslegal.com -- Stein Saks, PLLC. VIRTUOSO SOURCING GROUP, LLC, Defendant, represented by CINDY D. SALVO -- csalvo@salvolawfirm.com -- THE SALVO LAW FIRM. WELLNESS SOLUTIONS: Krawczyk et al Seek to Certify Class -------------------------------------------------------- In the class action lawsuit styled as WHITNEY KRAWCZYK and BRITTNEY WHITMORE, on behalf of themselves and all others similarly situated, the Plaintiffs, vs. WELLNESS SOLUTIONS GERIATRICS, PLLC, LAURA S. REAVES, STEVEN L. SCESA, JOHN W. CAIN, II, and GOLDEN GRIFFON, LLC, the Defendants, Case No. 3:19-cv-00323 (M.D. Tenn.), the Plaintiffs ask the Court for an order: 1. conditionally certifying a class of: "all employees of Defendants who worked at any time from mid-November 2018 through February 2019 and who also were not paid for their work in whole or in part during this period"; 2. approving notice and consent form agreed to by the parties; 3. requiring the Defendants to produce a notice list containing the last known mailing address and email address, to the extent it is in their possession, of each class member within 10 days of the entry of the Order granting the Motion; 4. requiring Plaintiffs' counsel to mail and email the notice within 7 days of receiving the notice list from Defendants; and 5. setting a deadline of 90 days for potential Opt-In Plaintiffs to return a completed consent form for filing with the Court. The Plaintiffs allege that all of the members of the class were subject to a single, class-wide decision not to pay the wages owed to them for their work from mid-November 2018 until in or around February 2019 beyond partial payments for work performed in November 2018. Because the proposed class were victims of a common policy they are similarly situated pursuant to 29 U.S.C. section 216(b).[CC] Attorneys for the Plaintiffs are: Joshua A. Frank, Esq. David W. Garrison, Esq. BARRETT JOHNSTON MARTIN & GARRISON, LLC Philips Plaza 414 Union Street, Suite 900 Nashville, TN 37219 Telephone: (615) 244-2202 Facsimile: (615) 252-3798 E-mail: dgarrison@barrettjohnston.com jfrank@barrettjohnston.com - and - Charles Herman, Esq. CHARLES HERMAN LAW 7 E Congress Street, Suite 611A Savannah, GA 31401 Telephone: (912) 244-3999 Facsimile: (912) 257-7301 E-mail: charles@charleshermanlaw.com Attorneys for the Defendants are: Autumn L. Gentry, Esq. Peter F. Klett, III, Esq. DICKINSON WRIGHT PLLC 424 Church Street, Suite 800 Nashville, TN 37219 Telephone: (615) 244-6538 Facsimile: (844) 670-6009 E-mail: tgary@dickinsonwright.com agentry@dickinsonwright.com pklett@dickinsonwright.com WILMA PENNINGTON-THURMAN: Sansone Suit Remanded to State Court -------------------------------------------------------------- Judge John A. Ross of the U.S. District Court for the Eastern District of Missouri, Eastern Division, remanded the case, SANSONE GROUP DDR LLC, for MARYVILLE GARDENS APTS, Plaintiff, v. WILMA M. PENNINGTON-THURMAN, Defendant, Case No. 4:19-CV-2298-JAR (E.D. Mo.), back to the Circuit Court of the City of St. Louis, Associate Judge Division. On May 7, 2019, Sansone filed a petition in the 22nd Judicial Circuit Court of the City of St. Louis, Associate Circuit Division, alleging that Defendant Pennington-Thurman breached a written residential lease. Sansone sought judgment under Missouri state law for $1,800 in unpaid rent, along with possession of the premises. On May 28, 2019, Pennington-Thurman filed a notice of removal, which was docketed as a new case, Sansone Group DDR LLC v. Pennington-Thurman, No. 4:19-CV-1432-JAR ("Pennington-Thurman I"). Sansone filed a motion to remand, which the Court granted. The Court found that there was no federal question jurisdiction, therefore, if jurisdiction existed at all it must be predicated upon diversity of citizenship. However, the Court found the parties were not diverse and the amount in controversy was below the judicial threshold. It remanded the case to the 22nd Judicial Circuit Court of the City of St. Louis, Associate Circuit Division. On Aug. 5, 2019, Pennington-Thurman filed a second notice of removal in the Court. This notice of removal was docketed in the instant case. In her second notice of removal, the Defendant states that the case is an action under the Class Action Fairness Act ("CAFA"). This gives the Court jurisdiction over civil actions in which the matter in controversy exceeds the same or value of $5 million exclusive of interest and cost, the proposed class consists of more than 100 members and any member of the class of the Plaintiffs is a citizen of a state different from any Defendant. The Defendant's second notice of removal also seeks certification of a class of all current and former tenants of Maryville Gardens Apartments, which the Court construes as a motion to certify a class. Judge Ross will deny the Defendant's motion to certify a class action, and will remand again the case to the Circuit Court of the City of St. Louis. Under Rule 23(a)(4), a class representative must fairly and adequately protect the interests of the class. Additionally, a litigant may bring her own claims to federal court without counsel, but not the claims of others. Moreover, even if defendant could adequately represent a class, a counterclaim cannot serve as the basis for `arising under' jurisdiction. Because the Court has previously found it lacks subject matter jurisdiction over the case, and because the Defendant, a pro se litigant, cannot bring a class action counterclaim against the Plaintiff pursuant to CAFA, the action will be remanded to the 22nd Judicial Circuit Court of the City of St. Louis, Associate Judge Division. Accordingly, Judge Ross remanded the case to the 22nd Judicial Circuit Court of the City of St. Louis, Associate Judge Division, pursuant to 28 U.S.C. Section 1447(c). A separate order of remand will be entered. A full-text copy of the Court's Aug. 9, 2019 Memorandum and Order is available at https://is.gd/4laOzl from Leagle.com. Sansone Group DDR LLC, for Maryville Garden Apts, Plaintiff, represented by Patrick T. McLaughlin -- pmclaughlin@spencerfane.com -- SPENCER FANE LLP. Wilma M. Pennington-Thurman, Defendant, pro se. ZUORA INC: MTA and Hagens Berman to Lead Securities Suit -------------------------------------------------------- Zuora, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on September 16, 2019, for the quarterly period ended July 31, 2019, that the U.S. District Court for the Northern District of California has appointed a lead plaintiff and lead counsel in a class action lawsuit against the Company. On June 14, 2019, a securities class action lawsuit was filed in the U.S. District Court for the Northern District of California naming the Company and certain of its officers as defendants. The complaint purports to bring suit on behalf of shareholders who purchased or otherwise acquired the Company's securities between April 12, 2018 and May 30, 2019. The complaint alleges that defendants made false and misleading statements about the Company's business, operations and prospects in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended (Exchange Act), and seeks unspecified compensatory damages, fees and costs. On September 9, 2019, the district court appointed the lead plaintiff and lead counsel. The Company believes the plaintiff's allegations are without merit and intends to defend vigorously against the claims. * * * On August 13, 2019, New Zealand Methodist Trust Association filed a motion for appointment as lead plaintiff and approval of MTA's selection of the law firm of Hagens Berman Sobol Shapiro LLP as lead counsel, stating that MTA had suffered financial losses of over $700,000 in connection with MTA's purchases of the securities of Zuora, Inc. between April 12, 2018 and May 30, 2019, inclusive. That same day, six other competing movants filed similar motions, claiming to have suffered lesser investment losses than MTA during the Class Period: (1) Kyle J. Krauseneck; (2) City of Fort Lauderdale Police & Fire Retirement System; (3) Danish Parbtani; (4) Ahtesham Ahmed, Dimitri Nekrassov and Robert Zweben; (5) Pierre Kohler; and (6) Derek Selanders. Therafter, competing movants Kohler and the Zoura Investor Group withdrew their respective motions. Competing movants Parbtani, Selanders, the City of Fort Lauderdale Police & Fire Retirement System, and Krauseneck submitted notices of non-opposition to the competing lead plaintiff motions. Accordingly, with there being no opposition to MTA's Motion for Appointment as Lead Plaintiff and Approval of Counsel, and with good cause appearing therefor, the Court granted MTA's request, saying it satisfies the requirements for lead plaintiff appointment under the Securities Exchange Act of 1934, as amended by the Private Securities Litigation Reform Act. MTA is represented by: Reed R. Kathrein, Esq. Steve W. Berman, Esq. Danielle Smith, Esq. Lucas E. Gilmore, Esq. Hagens Berman Sobol Shapiro LLP Tel: 510-725-3000 E-mail: reed@hbsslaw.com steve@hbsslaw.com danielles@hbsslaw.com lucasg@hbsslaw.com Zuora said, "Given the procedural posture and the nature of this lawsuit, including that the proceedings are in the early stages, the Company is unable to estimate the reasonably possible loss or range of loss, if any, that may result from this matter." Zuora, Inc. develops cloud based software. The Company offers an online subscription billing and management platform that provides pricing subscription orders, rating, accounting, and payment services. Zuora operates worldwide. The company is based in San Mateo, California. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2019. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. 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