/raid1/www/Hosts/bankrupt/CAR_Public/191001.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, October 1, 2019, Vol. 21, No. 196
Headlines
2005 RESIDENTIAL: Class Claims in Ontiveros Dismissed w/o Prejudice
2KREW SECURITY: Bergad Files Fraud Class Suit in Pennsylvania
3M COMPANY: Removes Broussard Suit to W.D. Louisiana
ABB INC: $18.3MM Attorneys' Fees Awarded in Tussey ERISA Suit
ABB INC: Settlement in Tussey ERISA Suit Has Final Approval
ACCOLADE INC: Settlement in Hall FLSA Suit Gets Prelim. Approval
ACE PARKING: Settlement in Byles FCRA Suit Has Final Approval
ADVANTAGE RN: Partial Summary Judgment Bid Howell Labor Suit Denied
AETNA LIFE: Wolff ERISA Suit Removed to M.D. Pennsylvania
ALLEGIANT TRAVEL: Court Deems Deritivative & Checkman Suits Related
ALLIED UNIVERSAL: Douglas Seeks Initial Approval of Suit Settlement
ARCHER DANIELS: Manipulates Ethanol Prices, AOT Holding Alleges
B&G FOODS: Claims in Walker Suit Over Food Mislabeling Narrowed
BAR 20: Class Cert. Discovery Deadline in Maciel Moved to Nov. 15
BARCLAYS BANK: FrontPoint's Claims in Antitrust Suit Dismissed
BARTON PERREIRA: Traynor Asserts Breach of ADA
BAY PARK: Clark Remanded to New York State Court
BELK INC: Traynor Asserts Violation under Disabilities Act
BORO PARK: Adrien Files Suit in N.Y. Sup. Ct.
BUYSEASONS ENTERPRISES: Traylor Files ADA Suit in New York
CACHET FINANCIAL: Faces Class Suit Over Alleged MyPayrollHR Fiasco
CADENCE BANCORPORATION: Gainey McKenna Files Class Action
CANADA GOOSE: Nov. 4 Lead Plaintiff Bid Deadline
CENTRA TECH: Court Denies Rensel's Class Certification Bid
CHARLES SCHWAB: 9th Cir. Flips Arbitration Denial in Dorman Suit
CLIENT SERVICES: Lantry Appeals Order and Judgment to 8th Circuit
CLIF BAR: Court Denies Bids to Dismiss & Strike in Milan Suit
CONCENTRA INC: Dismissal of Class Claims in Pascal TCPA Suit Denied
CORINDUS VASCULAR: Sabatini Sues Over Exchange Act Breach
COSTCO WHOLESALE: Bid to Amend Reply to Pearlstone Partly Okayed
COX COMMUNICATIONS: 9th Cir. Affirms Summ. Judgment in Taylor Suit
CREDIT CORP: Demsko Files Class Suit under FDCPA in Florida
CRST EXPEDITED: Underpays Drivers, Broome Suit Alleges
CUBICLE ENTERPRISES: Traynor Files ADA Suit in S.D. New York
DURAVENT: Ling Suit Removed to E.D. California
E&M ICE CREAM: Illescas Dutan Sues Over Unpaid Compensations
EEG INC: McKinney Seeks Initial Class Certification Under Damasco
EXPERIAN INFORMATION: Traynor Files ADA Suit in S.D. New York
EXTRA SPACE: Arbitration Compelled in Ionescu Lawsuit
FAB COMMERCE: Traynor Files ADA Suit in S.D. New York
FARFETCH LIMITED: Bragar Eagel Files Class Action Lawsuit
FARFETCH LIMITED: Kessler Topaz Files Class Action Lawsuit
FLASHOVER MAINTENANCE: Hall Sues Over Unpaid Overtime Wages
FONTANA & FONTANA: Bardales May File Class Cert Bid Until Nov. 7
FORD MOTOR: Expedited Review of Persad's Bid to Strike Granted
GREENLANE HOLDINGS: Brodsky & Smith Probing Class Action Claims
GULF COAST: Ordered to Supplement Bid for Mygrant Deal Approval
HILL'S PET: Dismissal of ICFA & Unjust Enrichment Claims Reversed
JLN CONSTRUCTION: Class of Laborers/Foremen in Lee Suit Certified
JOHASEE REBAR: Fails to Pay Proper Wages, Sanchez et al. Say
JUST ENERGY: Wilkins Appeals N.D. Ill. Ruling to Seventh Circuit
JUUL LABS: Cincinnatians File Suit Over Marketing Deceit
KANSAS CITY ROYALS: Certification of Classes in Senne Partly Upheld
LABORATORY CORP: Court Narrows Claims in Amended Anderson Suit
LAPEER INDUSTRIES: Nikora Moves to Certify Ex-Workers Class
LEESA SLEEP: Traynor Files ADA Suit in S.D. New York
LEXISNEXIS: Hit by Class Suit for Selling Driver Data to Law Firms
LISSON GELLERY: Mendez Files ADA Suit in S.D. New York
LOTUS BY JOHNNY: Court Refuses to Certify Classes in Nguyen Suit
LUHRING AUGUSTINE: Mendez Files ADA Suit in S.D. New York
MACROGENICS INC: Robbins Geller Files Class Action Lawsuit
MACROGENICS INC: Schall Law Files Class Action Lawsuit
MDL 1869: Class Certification Denial in Antitrust Suit Affirmed
MDL 2420: Settlement with IPPs in Antitrust Suit Has Final Approval
MDL 2472: Court Grants in Part EPPs' Class Certification Bid
MERCK & CO: 3d Cir Reverses Dismissal of Securities Fraud Suit
MIDWAY INDUSTRIES: $5.3K Settlement in Shepardson Suit Has Approval
MISSISSIPPI: Sec. Hosemann Appeals Decision in Hopkins Class Suit
MITCHELL D BLUHM: Riley Files Class Suit Under FDCPA
MONSANTO CO: Final Approval of Settlement in Rawa Suit Affirmed
MONTGOMERY COUNTY, OH: Harrison Sues for Denial of Property Rights
MRI INTERNATIONAL: Settlement in Takiguchi Has Prelim Approval
MYDERMRECRUITER: Advanced Dermatology Sues over Unsolicited Calls
NATROL LLC: Certification of Classes Sought in Vitello Suit
NEWFIELD EXPLORATION: Swafford Trust Files Class Suit in Colorado
NEWPORT BEACH AUTOMOTIVE: Guerra Sues Over Unsolicited Marketing
NORMANDY, MO: Bid to Dismiss Davis Civil Rights Act Suit Denied
NORWALK, CT: Wage Theft Suit vs. Public Schools Moves to Dist. Ct.
NRT WEST INC: Chinitz Files Suit in Puerto Rico
ODYSSEY HEALTHCARE: Mallory Files Suit for Wrongful Termination
OLLIE'S BARGAIN: Nov. 18 Lead Plaintiff Bid Deadline
P-D VALMIERA: Sale of Up to 200K Bobbins for $2.15 Per Bobbin OK'd
PPG INDUSTRIES: Final OK of $7.65MM Deal in Amos Suit Endorsed
PRAXAIR INC: Court Wants Class Notice in Garcia Suit Amended
PROFILE DEVELOPMENT: Jones Files ADA Suit in E.D. New York
PROPETRO HOLDING: Rigrodsky & Long Files Class Action Lawsuit
PRUCO LIFE: Behfarin's Class Cert. Bid Denied Without Prejudice
PURDUE PHARMA: Court Stays Culperer & Charlotte Opiate Suits
QUINCY BIOSCIENCE: Collins Moves to Certify Two FDUTPA Classes
RC HOLDINGS: Traylor Asserts Breach of Disabilities Act
SAN JOSE, CA: Trump Rally Violence Case Won't Be Class Action
SAREPTA THERAPEUTICS: Bronstein Gewirtz Files Securities Class Suit
SCHERING-PLOUGH: 3d Cir. Revives Opt-Out Securities Claims
SEAFOOD SHANTY: Hristozov Sues Over Routine Nonpayment of Wages
SEAWORLD: Former VP Deposed as Part of Investors' Class Action
SEQUOIA FUND: Ropes & Gray Secures Dismissal of Class Suit
THINK FINANCE: Sequoia, TCV File Certiorari Petition in "Gingras"
TL & CG: SHI Seeks Minimum & OT Wages for Delivery Men
TOYOTA MOTOR: Stockinger Files Class Certification Bid
TTEC HEALTHCARE: Seeks Stay of Class Cert. Order in Beattie Suit
ULTA BEAUTY: Smith-Brown's Bid to Certify Class Under Advisement
UNIVERSITY OF KENTUCKY: Niblock Files Class Suit in Kentucky
VIEWRAY INC: Nov. 12 Lead Plaintiff Bid Deadline
WARREN COUNTY, OH: Dismissal of Adoptive Family Suit Sought
XEROX CORP: Judge Nixed Settlement, $7.5MM Atty. Fees Over Tie-Up
*********
2005 RESIDENTIAL: Class Claims in Ontiveros Dismissed w/o Prejudice
-------------------------------------------------------------------
In the case, ABEL ONTIVEROS, individually and on behalf of all
others similarly situated, Plaintiff, v. 2005 RESIDENTIAL TRUST
3-2, FCI LENDER SERVICES; BANK OF AMERICA, NATIONAL ASSOCIATION DBA
COUNTRYWIDE BANK, FSB; and DOES 1-10, inclusive, Defendants. 2005
RESIDENTIAL TRUST 3-2, FCI LENDER SERVICES, Counterclaimant, v.
ABEL ONTIVEROS, individually and on behalf of all others similarly
situated, Counter-Defendant, Case No. 2:19-cv-00362-DSF-PLA (C.D.
Cal.), Judge Dale S. Fischer of the U.S. District Court for the
Central District of California (i) dismissed with prejudice
Ontiveros' claims asserted as an individual; (ii) dismissed with
prejudice Counterclaimant 2005 Residential Trust 3-2's counterclaim
asserted against Ontiveros as an individual; and (iii) dismissed
without prejudice the class action allegations in the pleadings.
The parties will bear their own costs, litigation expenses, and
fees.
A full-text copy of the Court's Aug. 23, 2019 Order is available at
https://is.gd/Ft5GfE from Leagle.com.
Abel Ontiveros, Plaintiff, represented by Adrian Robert Bacon --
abacon@toddflaw.com -- Law Offices of Todd M Friedman PC, John R.
Habashy, Lexicon Law PC, Tiffany Noelle Buda --
tiffany@lexiconlaw.com -- Lexicon Law PC & Todd M. Friedman, Law
Office of Todd M Friedman PC.
2005 Residential Trust 3-2, by its Administrator PARK TREE
INVESTMENTS, LLC & FCI Lender Services, Inc., FCI Lender Services,
Inc. (erroneously sued as FCI Lender Services), Defendants,
represented by Fabio Romano Cabezas -- fcabezas@bwslaw.com -- Burke
WIlliams and Sorensen LLP, Richard J. Reynolds --
rreynolds@bwslaw.com -- Burke Williams and Sorensen LLP & Daniel I.
Singer -- DSINGER@TROMBLYLAW.COM -- Singer Law Group LLP.
2005 Residential Trust 3-2, by its Administrator PARK TREE
INVESTMENTS, LLC, Counter Claimant, represented by Fabio Romano
Cabezas, Burke WIlliams and Sorensen LLP, Richard J. Reynolds,
Burke Williams and Sorensen LLP & Daniel I. Singer, Singer Law
Group LLP.
Abel Ontiveros, Counter Defendant, represented by Adrian Robert
Bacon, Law Offices of Todd M Friedman PC, John R. Habashy, Lexicon
Law PC, Tiffany Noelle Buda, Lexicon Law PC & Todd M. Friedman, Law
Office of Todd M Friedman PC.
2KREW SECURITY: Bergad Files Fraud Class Suit in Pennsylvania
-------------------------------------------------------------
A class action lawsuit has been filed against 2Krew Security &
Surveillance. The case is styled as Paul Bergad, individually and
on behalf of all others similarly situated, Plaintiffs v. 2Krew
Security & Surveillance, Defendant Case No. 2:19-cv-01228-MRH (W.D.
Pa., Sept. 25, 2019).
The case type is stated as Other-Fraud.
2Krew Security & Surveillance is a Security system supplier in
Kittanning, Pennsylvania.[BN]
The Plaintiff is represented by:
D. Aaron Rihn, Esq.
Robert Peirce & Associates, P.C.
707 Grant Street, Suite 2500
Pittsburgh, PA 15219
Tel: (412) 281-7229
Fax: (412) 281-4229
Email: arihn@peircelaw.com
3M COMPANY: Removes Broussard Suit to W.D. Louisiana
----------------------------------------------------
The Defendant in the case of CHRISTOPHER JOSEPH BROUSSARD,
individually and on behalf of all others similarly situated,
Plaintiff v. 3M COMPANY; 3M OCCUPATIONAL SAFETY LLC; AEARO
HOLDINGS, LLC; AEARO INTERMEDIATE, LLC; AEARO INTERMEDIATE, LLC;
AEARO, LLC; and AEARO TECHNOLOGIES, LLC, Defendants, filed a notice
to remove the lawsuit from the 15th Judicial District Court for the
State of Louisiana, Parish of Vermilion, (Case No. 107036) to the
U.S. District Court for the Western District of Louisiana on
September 4, 2019. The clerk of court for the Western District of
Louisiana assigned Case No. 6:19-cv-01156. The case is assigned to
M Casey Rodgers and referred to Magistrate Gary R. Jones.
3M Company operates as a diversified technology company worldwide.
The company's Industrial segment offers tapes; coated, non-woven,
and bonded abrasives; adhesives; ceramics; sealants; specialty
materials; purification products; closure systems for personal
hygiene products; acoustic systems products; automotive components;
and abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota. [BN]
The Defendants are represented by:
Stephen G.A. Myers, Esq.
Jay M. Mattappally, Esq.
IRWIN FRITCHIE URQUHART & MOORE LLC
400 Poydras Street, Suite 2700
New Orleans, LA 70130
Telephone: (504) 310-2100
Facsimile: (504) 310-2101
E-mail: smyers@irwinllc.com
jmattappally@irwinllc.com
ABB INC: $18.3MM Attorneys' Fees Awarded in Tussey ERISA Suit
-------------------------------------------------------------
In the case, RONALD TUSSEY, et al., Plaintiffs, v. ABB, INC., et
al., Defendants, Case No. 06-CV-04305-NKL (W.D. Mo.), Judge Nanette
L. Laughrey of the U.S. District Court for the Western District of
Missouri, Central Divison, approved (i) the Class Counsel's fee
request of $18,331,500, (ii) the reimbursement of the Class
Counsel's costs $2,256,805 to the Class Counsel, and (iii) the
incentive awards of $25,000 to each of the following named
Plaintiffs and class representatives: Ron Tussey, Charles Fisher,
and Timothy Pinnell.
On Dec. 29, 2006, the Plaintiffs filed th case against ABB and
certain plan fiduciaries, on behalf of the Personal Retirement
Investment and Savings Management Plan and the Personal Retirement
Investment and Savings Management Plan for Represented Employees of
ABB, Inc. Two Court-ordered mediations were held before trial
without a settlement.
After a month-long trial was conducted, the Court issued its Order
and Judgment for the Plaintiffs finding that ABB breached its
fiduciary duties of prudence and loyalty to the Plans by: (1)
failing to monitor and ensure the reasonableness of the Plans'
recordkeeping fees ($13.4 million in losses) and (2) removing the
Vanguard Wellington fund and replacing it with the Fidelity Freedom
funds ($21.8 million in losses). Under the ERISA fee-shifting
provision, the Court also entered an award of attorneys' fees to
the Class Counsel.
At that time, the attorneys' fee award was $12,947,747.68,
approximately one-third of the monetary award. Injunctive relief
was also granted, which was estimated to have a value at that time
of at least as much as the monetary relief originally ordered by
the Court.
ABB appealed the Court's trial order and decision to the Eighth
Circuit Court of Appeals. The Eighth Circuit upheld the district
court's finding that ABB breached its fiduciary duty to monitor
Plan recordkeeping fees and its finding of damages on that claim.
The Court of Appeals, however, reversed the Court's ruling on the
removal and replacement of the Vanguard Wellington fund.
On remand, the Court again found that ABB breached its fiduciary
duty on the Wellington claim but ruled for ABB on the issue of
damages. After a second appeal, the case was remanded for
calculation of damages on the Plaintiffs' Vanguard Wellington
claim.
While the issue of damages on the Wellington Vanguard claim was
being litigated, the parties engaged in a third, and ultimately
successful, mediation. The Court preliminarily approved the
parties' settlement agreement on April 2, 2019. Notices were sent
on June 14, 2019 to all the members of the potential class, which
included information pertaining to the Class Counsel's requested
fee of approximately one-third from the Settlement fund, the
requested reimbursement of expenses, and the incentive awards to
the class representatives.
The Class Counsel for the Plaintiffs seek an award of attorneys'
fees in the amount of $18,331,500, the reimbursement of reasonable
expenses incurred in prosecuting the action in the amount of
$2,256,805, and compensation to each of the class representatives
in the amount of $25,000 from the common fund created from the
Settlement in the matter.
Judge Bennett has reviewed the Class Counsel's request and
supporting evidence, prior orders and attorney fee applications
made in the case, as well as attorneys' fees and class
representative awards from similar cases. He finds that the value
of the injunctive relief obtained by the Class Counsel in the
Court's original Judgment and Order is substantial and has been in
effect, benefitting the class members, for seven years. Taking all
these factors into account, the actual benefit to the Settlement
Class is in excess of the monetary benefit received, and one-third
of that benefit is appropriately paid to the Plaintiffs' counsel
for their work.
The Judge also finds that the reimbursement of the litigation
expenses that the Class Counsel advanced and carried for almost a
decade is warranted. Moreover, the Court has already approved the
expenses which had been incurred as if 2015 which are close to the
requested amount. No Class Member then or now objected to the
expenses. Because of the length and complexity of the case, the
Class Counsel's request for reimbursement of costs and expenses is
approved.
Finally, without the involvement and willingness of Mr. Tussey, Mr.
Fisher, and Mr. Pinnell to pursue the litigation for the past 12
years, the Class would have received no remuneration for the
breaches of fiduciary duties, which would likely have continued to
this day. The total award for all the named Plaintiffs represents
just 0.14% of the total settlement fund.
For these reasons, Judge Bennett approved (i) the Class Counsel's
fee request of $18,331,500, (ii) the reimbursement of the Class
Counsel's costs $2,256,805 to the Class Counsel, and (iii) the
incentive awards of $25,000 to each of the following named
Plaintiffs and class representatives: Mr. Tussey, Mr. Fisher, and
Mr. Pinnell. All these awards and reimbursements will be paid from
the Settlement Fund.
A full-text copy of the Court's Aug. 16, 2019 Order is available at
https://is.gd/vTm4Zy from Leagle.com.
Ron Tussey, Charles Fisher, Timothy Herndron & Timothy Pinnell,
Plaintiffs, represented by Heather Lea -- hlea@uselaws.com --
Schlichter, Bogard & Denton, Jerome J. Schlichter --
jschlichter@uselaws.com -- Schlichter, Bogard & Denton & Troy A.
Doles -- tdoles@uselaws.com -- Schlichter, Bogard & Denton.
ABB Inc., Defendant, represented by Azeez Hayne, Morgan, Lewis &
Bockius, LLP, pro hac vice, Barbara A. Smith --
barbara.smith@bclplaw.com -- Bryan Cave, LLP, Brian T. Ortelere --
brian.ortelere@morganlewis.com -- Morgan, Lewis & Bockius, LLP,
Jeffrey S. Russell, Bryan Cave Leighton Paisner, LLP, Richard N.
Bien, Lathrop Gage LLP, Thomas E. Wack, Bryan Cave Leighton
Paisner, LLP, William J. Delany, Morgan, Lewis & Bockius, LLP,
Erica E. Flores, Morgan Lewis and Bockius, LLP, pro hac vice,
Jeffrey A. Sturgeon, Melissa Hill -- melissa.hill@morganlewis.com
-- Morgan, Lewis & Bockius & Robert M. Thompson --
rmthompson@bclplaw.com -- Bryan Cave, LLP.
John W. Cutler, Jr., Pension Review Committee of Abb, Inc., Pension
& Thrift Management Group of Abb, Inc. & Employee Benefits
Committee of ABB, Inc., Defendants, represented by Azeez Hayne,
Morgan, Lewis & Bockius, LLP, pro hac vice, Barbara A. Smith, Bryan
Cave, LLP, Brian T. Ortelere, Morgan, Lewis & Bockius, LLP, Jeffrey
S. Russell, Bryan Cave Leighton Paisner, LLP, Richard N. Bien,
Lathrop Gage LLP, Thomas E. Wack, Bryan Cave Leighton Paisner, LLP,
William J. Delany, Morgan, Lewis & Bockius, LLP, Erica E. Flores,
Morgan Lewis and Bockius, LLP, pro hac vice, Melissa Hill, Morgan,
Lewis & Bockius & Robert M. Thompson, Bryan Cave, LLP.
Fidelity Management Trust Company, Defendant, represented by Adam
B. Walker, Lathrop Gage LLP, Brian Boyle, O' Melveny & Myers, James
S. Dittmar, Goodwin, Procter, LLP, James O. Fleckner, Goodwin
Procter LLP, pro hac vice, Richard N. Bien, Lathrop Gage LLP,
Robert N. Eccles, O'Melveny & Myers LLP, pro hac vice, Shannon
Barrett, O'Melveny & Myers LLP, pro hac vice, Stephen D. Brody,
O'Melveny & Myers LLP, Adam J. Coates, O'Melveny & Myers LLP, pro
hac vice, Benjamin G. Bradshaw, O'Melveny & Myers LLP, pro hac vice
& M. Randall Oppenheimer, O'Melveny & Mywea, pro hac vice.
Fidelity Management & Research Company, Defendant, represented by
Adam B. Walker, Lathrop Gage LLP, Brian Boyle, O' Melveny & Myers,
James S. Dittmar, Goodwin, Procter, LLP, James O. Fleckner, Goodwin
Procter LLP, pro hac vice, Richard N. Bien, Lathrop Gage LLP,
Robert N. Eccles, O'Melveny & Myers LLP, pro hac vice, Shannon
Barrett, O'Melveny & Myers LLP, pro hac vice, Stephen D. Brody,
O'Melveny & Myers LLP, Adam J. Coates, O'Melveny & Myers LLP, pro
hac vice, Benjamin G. Bradshaw, O'Melveny & Myers LLP, pro hac vice
& M. Randall Oppenheimer, O'Melveny & Mywea, pro hac vice.
Albert Otto, Plaintiff's Expert Witness, Miscellaneous, represented
by Henry D. Fellows, Jr.
International Paper Company, Intervenor, represented by Charles Lee
Joley, Joley, Nussbaumer, Oliver & Beasley P.C., Gregory C. Braden,
Morgan, Lewis & Bockius, LLP, pro hac vice, Donald L. Havermann,
Morgan, Lewis, & Bockius LLP, pro hac vice & Richard Black, Morgan,
Lewis, Bockius.
ABB INC: Settlement in Tussey ERISA Suit Has Final Approval
-----------------------------------------------------------
In the case, RONALD TUSSEY, et al., Plaintiffs, v. ABB, INC., et
al., Defendants, Case No. 06-CV-04305-NKL (W.D. Mo.), Judge Nanette
L. Laughrey of the U.S. District Court for the Western District of
Missouri, Central Divison, granted the Plaintiffs' Unopposed Motion
for Final Approval of Class Settlement.
Pending before the Court is the Plaintiffs' Motion pursuant to the
terms of the Class Action Settlement Agreement dated March 27,
2019. On April 2, 2019, the Court preliminarily approved the
Settlement Agreement. On Aug. 13, 2019, it held a fairness
hearing.
Judge Laughrey has read and considered all submissions made in
connection with the Settlement Agreement, including statements made
in open court at the fairness hearing. She granted the Plaintiffs'
Motion, approved the Settlement of the Class Action, and directed
the Settling Parties to take the necessary steps to effectuate the
terms of the Settlement Agreement. All claims asserted at any
point in the litigation are dismissed with prejudice and without
costs to any of the Settling Parties other than as provided for in
the Settlement Agreement.
The Settlement Administrator will have final authority to determine
the share of the Net Settlement Amount to be allocated to each
Current Participant and each Authorized Former Participant. With
respect to payments or distributions to Authorized Former
Participants, all questions not resolved by the Settlement
Agreement will be resolved by the Settlement Administrator in its
sole and exclusive discretion.
Within 21 calendar days following the issuance of all settlement
payments to the Class Members, the Settlement Administrator will
prepare and provide to the Class Counsel and the Defense Counsel a
list of each person who was issued a settlement payment and the
amount of such payment.
Upon entry of the Order, all the Class Members and the Plans will
be bound by the Settlement Agreement as amended and by the Final
Order.
Judge Laughrey ordered that Appeal Bond #19041095 dated Nov. 8,
2012 and recorded with the Court on Nov. 13, 2012 is fully and
unconditionally discharged and released to a representative of ABB
Inc. She further found that the sureties to the Appeal Bond have
no past, present, or future liability arising under or in
connection with the Appeal Bond.
A full-text copy of the Court's Aug. 16, 2019 Final Order and
Judgment is available at https://is.gd/L4pp7l from Leagle.com.
Ron Tussey, Charles Fisher, Timothy Herndron & Timothy Pinnell,
Plaintiffs, represented by Heather Lea -- hlea@uselaws.com --
Schlichter, Bogard & Denton, Jerome J. Schlichter --
jschlichter@uselaws.com -- Schlichter, Bogard & Denton & Troy A.
Doles -- tdoles@uselaws.com -- Schlichter, Bogard & Denton.
ABB Inc., Defendant, represented by Azeez Hayne, Morgan, Lewis &
Bockius, LLP, pro hac vice, Barbara A. Smith --
barbara.smith@bclplaw.com -- Bryan Cave, LLP, Brian T. Ortelere --
brian.ortelere@morganlewis.com -- Morgan, Lewis & Bockius, LLP,
Jeffrey S. Russell, Bryan Cave Leighton Paisner, LLP, Richard N.
Bien, Lathrop Gage LLP, Thomas E. Wack, Bryan Cave Leighton
Paisner, LLP, William J. Delany, Morgan, Lewis & Bockius, LLP,
Erica E. Flores, Morgan Lewis and Bockius, LLP, pro hac vice,
Jeffrey A. Sturgeon, Melissa Hill -- melissa.hill@morganlewis.com
-- Morgan, Lewis & Bockius & Robert M. Thompson --
rmthompson@bclplaw.com -- Bryan Cave, LLP.
John W. Cutler, Jr., Pension Review Committee of Abb, Inc., Pension
& Thrift Management Group of Abb, Inc. & Employee Benefits
Committee of ABB, Inc., Defendants, represented by Azeez Hayne,
Morgan, Lewis & Bockius, LLP, pro hac vice, Barbara A. Smith, Bryan
Cave, LLP, Brian T. Ortelere, Morgan, Lewis & Bockius, LLP, Jeffrey
S. Russell, Bryan Cave Leighton Paisner, LLP, Richard N. Bien,
Lathrop Gage LLP, Thomas E. Wack, Bryan Cave Leighton Paisner, LLP,
William J. Delany, Morgan, Lewis & Bockius, LLP, Erica E. Flores,
Morgan Lewis and Bockius, LLP, pro hac vice, Melissa Hill, Morgan,
Lewis & Bockius & Robert M. Thompson, Bryan Cave, LLP.
Fidelity Management Trust Company, Defendant, represented by Adam
B. Walker, Lathrop Gage LLP, Brian Boyle, O' Melveny & Myers, James
S. Dittmar, Goodwin, Procter, LLP, James O. Fleckner, Goodwin
Procter LLP, pro hac vice, Richard N. Bien, Lathrop Gage LLP,
Robert N. Eccles, O'Melveny & Myers LLP, pro hac vice, Shannon
Barrett, O'Melveny & Myers LLP, pro hac vice, Stephen D. Brody,
O'Melveny & Myers LLP, Adam J. Coates, O'Melveny & Myers LLP, pro
hac vice, Benjamin G. Bradshaw, O'Melveny & Myers LLP, pro hac vice
& M. Randall Oppenheimer, O'Melveny & Mywea, pro hac vice.
Fidelity Management & Research Company, Defendant, represented by
Adam B. Walker, Lathrop Gage LLP, Brian Boyle, O' Melveny & Myers,
James S. Dittmar, Goodwin, Procter, LLP, James O. Fleckner, Goodwin
Procter LLP, pro hac vice, Richard N. Bien, Lathrop Gage LLP,
Robert N. Eccles, O'Melveny & Myers LLP, pro hac vice, Shannon
Barrett, O'Melveny & Myers LLP, pro hac vice, Stephen D. Brody,
O'Melveny & Myers LLP, Adam J. Coates, O'Melveny & Myers LLP, pro
hac vice, Benjamin G. Bradshaw, O'Melveny & Myers LLP, pro hac vice
& M. Randall Oppenheimer, O'Melveny & Mywea, pro hac vice.
Albert Otto, Plaintiff's Expert Witness, Miscellaneous, represented
by Henry D. Fellows, Jr.
International Paper Company, Intervenor, represented by Charles Lee
Joley, Joley, Nussbaumer, Oliver & Beasley P.C., Gregory C. Braden,
Morgan, Lewis & Bockius, LLP, pro hac vice, Donald L. Havermann,
Morgan, Lewis, & Bockius LLP, pro hac vice & Richard Black, Morgan,
Lewis, Bockius.
ACCOLADE INC: Settlement in Hall FLSA Suit Gets Prelim. Approval
----------------------------------------------------------------
In the case, GWENDOLYN HALL, on behalf of themselves and all others
similarly situated, Plaintiffs, v. ACCOLADE, INC., Defendant, Civil
Action No. 17-3423 (E.D. Pa.), Judge Gene E.K. Pratter of the U.S.
District Court for the Eastern District of Pennsylvania granted the
Plaintiff's Unopposed Motion for Preliminary Approval of the Class
Action Settlement and Other Related Relief, and preliminarily
approved the settlement of the action.
The complaint alleged violations of the Fair Labor Standards Act
(FLSA).
The Judge also approved the amended "Notice of Settlement" forms
pursuant to Federal Rules 23(c)(2)(B) and 23(e)(1). The Notice
Forms will be sent to the 323 individuals listed in Exhibit A to
the Agreement.
Individuals who wish to exclude themselves from the settlement must
follow the procedures described in paragraph 7 of the Agreement and
Section 7 of the Notice Forms. Those who wish to object to the
settlement must follow the procedures described in paragraph 8 of
the Agreement and Section 8 of the Notice Forms.
Winebrake & Santillo, LLC and Hardwick Benfer, LLC are appointed as
interim class counsel. The Court will make its final decision
regarding the appointment of the class counsel after the final
approval.
Pursuant to Federal Rule 23(e)(2), a hearing addressing final
approval of the settlement will be held on Jan. 6, 2020 at 11:00
a.m.
Thirty calendar days prior to the final approval hearing, the
interim class counsel will file all papers in support of the final
approval of the settlement and the associated issues described.
A full-text copy of the Court's Aug. 23, 2019 Order is available at
https://is.gd/cshIAG from Leagle.com.
GWENDOLYN HALL, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY
SITUATED, Plaintiff, represented by J. DEREK BRAZIEL --
info@l-b-law.com -- LEE & BRAZIEL, LLP, PETER D. WINEBRAKE --
pwinebrake@winebrakelaw.com -- WINEBRAKE & SANTILLO, LLC, MARK J.
GOTTESFELD -- mgottesfeld@winebrakelaw.com -- WINEBRAKE & SANTILLO,
LLC, R. ANDREW SANTILLO -- asantillo@winebrakelaw.com -- WINEBRAKE
& SANTILLO, LLC, TIFFANIE C. BENFER , HARDWICK BENFER, LLC &
VIRGINIA L. HARDWICK -- vhardwick@hardwickbenfer.com -- HARDWICK
BENFER, LLC.
ACCOLADE, INC., Defendant, represented by CHRISTOPHER J. MORAN --
moranc@pepperlaw.com -- PEPPER HAMILTON LLP, THOMAS J. COLE, Jr. --
colet@pepperlaw.com -- PEPPER HAMILTON LLP & TRACEY E. DIAMOND --
diamondt@pepperlaw.com -- PEPPER HAMILTON LLP.
ACE PARKING: Settlement in Byles FCRA Suit Has Final Approval
-------------------------------------------------------------
In the case, BRUCE BYLES, individually, and on behalf of all others
similarly situated, Plaintiff, v. ACE PARKING MANAGEMENT, INC.,
Defendant, Case No. C16-0834-JCC (W.D. Wash.), Judge Richard A.
Jones of the U.S. District Court for the Western District of
Washington, Seattle, granted the Plaintiff's unopposed motion for
final approval of class settlement agreement.
The parties have executed a proposed settlement seeking to resolve
the Plaintiff's and the putative class' claims against Ace. As
part of the Settlement Agreement, the parties have agreed to seek
final certification of a settlement class. Pursuant to Local Civil
Rule 23(b)(3), the Court orders that the action may proceed on
behalf of the classes of all persons to whom Ace provided an
electronically printed receipt for parking at the 999 Third Avenue
garage on or after June 3, 2011 bearing the expiration date of the
customer's personal credit card or debit card.
No class members have objected to or requested exclusion from the
settlement.
Judge Jones finds that final approval of the Settlement Agreement
is appropriate. Therefore, he granted the Plaintiff's motion for
final approval of class action settlement.
Pursuant to his final approval, the Judge directed that the
Settlement Agreement be implemented in accordance with its terms
and conditions, including but not limited to:
(1) Ace will pay any monies required under Paragraphs 3.1.1
and 12 of the Settlement Agreement to the Class Counsel within 15
days of "Final Approval" as defined by Paragraph 1.1 of the
Settlement Agreement; and
(2) Any monies required under Paragraph 3.2 of the Settlement
Agreement for payment of the Class Counsel's fees, costs, and a
class representative service award will be paid by Ace to the Class
Counsel within the Court-approved attorney fee and cost award of
$80,000 to Class Counsel and the Court-approved Class
Representative service award of $15,000 to Plaintiff Byles will be
paid by Ace to the Class Counsel within 15 days of "Final Approval"
as defined by Paragraph 1.1.a of the Settlement Agreement.
In order to protect the Court's continuing jurisdiction to
effectuate its judgment in the action, each class member is
enjoined from prosecuting claims released under Paragraphs 4.2 and
4.3 of the Settlement Agreement.
Pursuant to the terms of the Settlement Agreement, the Judge
dismissed the action with prejudice.
A full-text copy of the Court's Aug. 20, 2019 Order is available at
https://is.gd/HBhOQd from Leagle.com.
Bruce Byles, individually, and on behalf of all others similarly
situated, Plaintiff, represented by Christopher Eric Love --
chris@pcvalaw.com -- PFAU COCHRAN VERTETIS AMALA PLLC & Darrell L.
Cochran -- darrell@pcvalaw.co -- PFAU COCHRAN VERTETIS AMALA PLLC.
Ace Parking Management, Inc., Defendant, represented by John M.
Kreutzer -- jkreutzer@smithfreed.com -- SMITH FREED & EBERHARD PC.
ADVANTAGE RN: Partial Summary Judgment Bid Howell Labor Suit Denied
-------------------------------------------------------------------
In the case, EMILY HOWELL, an individual on behalf of herself and
others similarly situated, Plaintiff, v. ADVANTAGE RN, LLC; and
DOES 1 through 10, Defendants, Case No. 17-CV-883 JLS (BLM) (S.D.
Cal.), Judge Janis Lynn Sammartino of the U.S. District Court for
the Southern District of California (a) denied the Defendant's
Motion for an Order (1) Modifying the End of the Class Period to
Reflect the Date Defendant Ceased Operations and (2) Permitting
Defendant to Provide Notice to Individuals Erroneously Notified of
Class and Collective Actions; (b) denied the Defendant's Motion for
Partial Summary Judgment; and (c) granted in part and denied in
part the Plaintiff's Motion for Partial Summary Judgment as to
Liability Only.
The Defendant is a health care staffing company that placed nurses
and other medical professionals ("Travelers") on temporary
assignments at hospitals and other health care facilities across
the country. Most travel assignments were 13 weeks long, and most
Travelers were contracted to work three 12-hour shifts per week.
The minimum required weekly hours was either 36 or 40 hours per
week, depending on the hospital. The average base hourly rate the
Defendant paid to registered nurses and surgical technicians
working in California between May 3, 2013, and June 30, 2017, was
$23.13 per hour, whereas the average pay rate for registered nurses
in California was approximately $49 to $50 per hour.
Most of the assignments that Travelers worked for the Defendant
also were located 100 or more miles away from their permanent
residences, meaning Travelers incurred meal, incidental, and
lodging expenses on behalf of the Defendant associated with being
away from home at their assignment location.
On May 1, 2017, the Plaintiff filed a putative class action
complaint for failure to pay overtime wages in violation of
California Labor Code sections 510 and 1194, unfair business
practices in violation of California Business and Professions Code
sections 17200 et seq., and waiting time penalties pursuant to
California Labor Code section 203. The operative First Amended
Class Action Complaint ("FAC") was filed on July 10, 2017, adding
additional claims for civil penalties pursuant to California Labor
Code sections 2698 et seq. and violations of the Fair Labor
Standards Act ("FLSA").
On Dec. 15, 2017, the Plaintiff moved to certify a California-wide
class with respect to her state law claims for unpaid overtime,
unlawful business practices, and waiting time penalties and for
conditional certification of a nationwide FLSA collective action.
Following oral argument on July 12, 2018, the Court granted the
Plaintiff's motion on July 17, 2018, certifying the following
class: All non-exempt hourly health care professionals employed by
Advantage RN in California from May 2, 2013 through the date of
class certification who worked pursuant to a Traveler Assignment
Confirmation, worked overtime, and had the value of the per diem
stipend and/or loyalty, extension or completion bonus paid to them
excluded from their regular rate for purposes of calculating
overtime.
The Court also conditionally certified the following FLSA
collective: All non-exempt hourly health care professionals
employed by Defendant Advantage RN LLC in the United States within
three years prior to the date of certification who worked pursuant
to a Traveler Assignment Confirmation, worked in excess of 40 hours
in one or more workweeks, and had the value of the per diem stipend
and/or loyalty, extension or completion bonus paid to them excluded
from their regular rate for purposes of calculating overtime.
The Defendant's Motion to Modify followed on March 25, 2019. It
notes that it makes no logical sense to include the July 1, 2017
through July 17, 2018 period during which the Defendant did not
employ anyone and did not operate the Advantage RN business.
The Defendant's and the Plaintiff's Motions for Summary Judgment
followed on March 29, 2019, and April 19, 2019, respectively. The
Plaintiff seeks partial summary judgment as to the Defendant's
liability for each of the five causes of action in her First
Amended Complaint. The Defendant, on the other hand, seeks partial
summary judgment against the Plaintiff on her per diem-related
claims in each of her causes of action.
Although Judge Sammartino agrees that it would make no logical
sense to include in the class and collective actions a period
during which the Defendant had ceased to operate, the Plaintiff
disputes whether the Defendant continued to employ members of the
collective after June 30, 2017. Further, the Judge is troubled by
the fact that the grounds for the Defendant's requested
modification were known to both Parties well before they briefed
and argued the class certification and conditional certification
issues but were not raised until March 2019. Accordingly, she
denied the Defendant's Motion to Modify.
Turning to the Motions for Summary Judgment, the Judge finds that
coupled with the burden of proof, the undisputed facts compel the
conclusion that the Defendant's per diem functioned as remuneration
for hours worked. Ultimately, the burden is on the Defendant to
establish that its per diem payments fall within the exemption for
traveling expenses. Because the Defendant has failed to do so, the
benefit of the doubt goes to the Plaintiff. Accordingly, the Judge
denied the Defendant's Motion for Summary Judgment and granted the
Plaintiff's Motion for Summary Judgment as to her first and fifth
causes of action to the extent they are predicated on the
Defendant's failure to include per diem payments in Travelers'
regular rate.
Because the Defendant promised the bonuses in advance and pursuant
to a written contract, it abandoned its discretion with regard to
them. Such non-discretionary bonuses made pursuant to a prior
written contract cannot lawfully be excluded from the employee's
regular rate. The Judge therefore granted the Plaintiff's Motion
for Summary Judgment as to her first and fifth causes of action to
the extent they are predicated on these bonus payments.
Finally, the Plaintiff seeks summary judgment that it is entitled
to double liquidated damages under the FLSA for unpaid overtime
compensation as well as extension of the statute of limitations to
three years. The only evidence presented to the Court by either
party concerning the Defendant's willfulness (or lack thereof) is
the very court opinions cited to establish the Defendant's
liability under the FLSA. the Although it is clear under existing
precedent that Defendant's failure to include non-discretionary
bonuses in the regular rate was unlawful,the question concerning
its per diem policy is a closer call. Accordingly, on the current
record, the Judge granted in part and denied in part the
Plaintiff's Motion for Summary Judgment as to the statute of
limitations under the FLSA. Specifically, the Judge granted the
Plaintiff's Motion for Summary Judgment as to her bonus claims and
denied it as to her per diem claims.
The Judge denied the Defendant's Motion for Summary Judgment and
granted the Plaintiff's Motion for Summary Judgment as to her
second cause of action. The Parties agree that the Court's
determination of the Defendant's liability under Section 510 is
determinative of its liability under Section 17200. Because she
concludes that there exist no genuine disputes of material fact
Defendant violated Section 510, the Judge also concludes that there
exist no genuine disputes of material fact that Defendant violated
Section 17200.
As with the Plaintiff's argument concerning the statute of
limitations under the FLSA, see supra Section II.A.3.b, the Judge
granted in part and denied in part the Plaintiff's Motion for
Summary Judgment as to the Plaintiff's third cause of action.
Specifically, the Judge granted the Plaintiff's Motion for Summary
Judgment as to waiting time penalties as to her bonus claims and
denied her Motion as to waiting time penalties as to her per diem
claims. Accordingly, the Judge denied the Defendant's Motion for
Summary Judgment as to the Plaintiff's third cause of action.
Finally, again, the Parties agree that the Court's determination of
the Defendant's liability under Section 510 is determinative of its
liability under Sections 201 and 203. Because she concludes that
there exist no genuine disputes of material fact the Defendant
violated Section 510, see supra Section II.A, the Judge also
concludes that there exist no genuine disputes of material fact
that Defendant violated Section 558. Accordingly, she denied the
Defendant's Motion for Summary Judgment and granted the Plaintiff's
Motion for Summary Judgment as to her fourth cause of action.
In light of the foregoing, Judge Sammartino denied the Defendant's
Motion to Modify, denied the Defendant's Motion for Summary
Judgment, and granted in part and denied in part the Plaintiff's
Motion for Summary Judgment as outlined. The Parties will file a
joint status report within seven days of the electronic docketing
of the Order.
A full-text copy of the Court's Aug. 16, 2019 Order is available at
https://is.gd/JsJQKu from Leagle.com.
Emily Howell, an individual on behalf of herself and others
similarly situated, Plaintiff, represented by Kye Douglas Pawlenko
-- kpawlenko@helpcounsel.com -- Hayes Pawlenko LLP & Matthew B.
Hayes -- mhayes@helpcounsel.com -- Hayes Pawlenko LLP.
Advantage RN LLC, an Ohio limited liability company, Defendant,
represented by Kenneth D. Sulzer -- ksulzer@constangy.com --
Constangy, Brooks, Smith & Prophete, LLP, Sarah Kroll-Rosenbaum --
skrollrosenbaum@constangy.com -- Constancy, Brooks, Smith &
Prophete LLP, Anthony David Sbardellati, Constangy, Brooks, Smith &
Prophete, Sayaka Karitani, Constangy, Brooks, Smith & Prophete LLP
& Steven B. Katz -- skatz@constangy.com -- Constangy, Brooks, Smith
& Prophete LLP.
AETNA LIFE: Wolff ERISA Suit Removed to M.D. Pennsylvania
---------------------------------------------------------
The lawsuit titled JOANNE WOLFF, Individually and on behalf of a
Class of Similarly Situated Individuals v. AETNA LIFE INSURANCE
COMPANY, and THE RAWLINGS COMPANY, LLC, Case No. 19-1308, was
removed on Sept. 16, 2019, from the Court of Common Pleas of
Lycoming County, Pennsylvania, to the U.S. District Court for the
Middle District of Pennsylvania.
The District Court Clerk assigned Case No. 4:19-cv-01596-MWB to the
proceeding.
The action was commenced in State Court on August 8, 2019. It is
alleged in the Complaint that the Plaintiff's employer, Bank of
America Corporation, sponsored a group long term disability
benefits plan ("Group LTD Plan") as an employee benefit, which it
funded through a group long-term disability insurance policy
("Group LTD Policy") issued by Aetna. The Complaint relates that
the Plaintiff, as a result of a temporary disability stemming from
a motor vehicle accident, received disability benefits under the
Group LTD Plan, which the Defendants seek to recover from a
personal injury settlement she has reached with the accident
tortfeasor.
The Plaintiff claims that the Defendants' demand for reimbursement
from her tort settlement is improper under the law and the terms of
the Group LTD Policy's right of recovery provisions, which she
quotes at length in her Complaint. The Plaintiff asserts claims
under the Employee Retirement Income Security Act of 1974.[BN]
Defendants Aetna Life Insurance Company, and The Rawlings Company,
LLC, are represented by:
Elizabeth A. Venditta, Esq.
David J. Creagan, Esq.
Timothy A. Carroll, Esq.
WHITE AND WILLIAMS LLP
1650 Market Street
One Liberty Place, Suite 1800
Philadelphia, PA 19103-7395
Telephone: (215) 864-6392
Facsimile: (215) 789-7592
E-mail: vendittae@whiteandwilliams.com
creagand@whiteandwilliams.com
carrollt@whiteandwilliams.com
ALLEGIANT TRAVEL: Court Deems Deritivative & Checkman Suits Related
-------------------------------------------------------------------
In the case, IN RE ALLEGIANT TRAVEL CO. STOCKHOLDER DERIVATIVE
LITIGATION, Case No. 2:18-CV-01864-GMN-CWH (D. Nev.), Judge Andrew
P. Gordon of the U.S. District Court for the District of Nevada (i)
deemed Daniel Checkman v. Allegiant Travel Company, et al. (Case
No. 2:18-cv-01758-JFW-AS) and the Consolidated Derivative Action
related, and (ii) reassigned the Consolidated Derivative Action to
him.
On April 24, 2018, Daniel Checkman filed his case in the U.S.
District Court for the Central District of California, alleging
violations of Sections 10(b) and 20(a) of the Securities and
Exchange Act of 1934 in connection with the Defendants' statements
concerning Allegiant's alleged safety practices.
On July 20, 2018, Charles Blackburn filed the Shareholder
Derivative Complaint in Charles Blackburn v. Maurice J. Gallagher,
Jr., et al. (Case No. 2:18-cv-06296-GW-SSx) in the Central
District, alleging violations of the Defendants' fiduciary duties
as the members of Allegiant's Board of Directors and alleging
conduct that overlaps factually with the allegations in Checkman.
On Sept. 11, 2018, Judge John F. Walter of the Central District
issued an Order in Checkman granting the parties' joint stipulation
to transfer venue to the U.S. District Court for the District of
Nevada. On the same day, Checkman was assigned to Judge Gordon.
On Sept. 26, 2018, Mark Fullenkamp filed the Shareholder Derivative
Complaint in Mark Fullenkamp v. Maurice J. Gallagher, Jr., et al.
(Case No. 2:18-cv-01864-GMN-CWH) in the District of Nevada,
alleging violations of the Defendants' fiduciary duties as members
of Allegiant's Board of Directors and alleging conduct that is
factually and legally related to the allegations in Checkman and
Blackburn.
On Sept. 26, 2018, Fullenkamp was assigned to Judge Gloria M.
Navarro.
On Oct. 10, 2018, Judge George H. Wu of the Central District issued
an Order in Blackburn granting the parties' joint stipulation to
transfer venue to the District of Nevada.
On Oct. 12, 2018, Blackburn was assigned to Judge Gordon.
On Dec. 23, 2018, the parties in Fullenkamp and Blackburn filed a
joint stipulation to consolidate the two derivative actions
On Jan. 8, 2019, the Defendants in Checkman, Blackburn, and
Fullenkamp filed three Notices of Related Cases to relate Checkman,
Blackburn, and Fullenkamp.
On Jan. 8, 2019, Blackburn and Fullenkamp were consolidated as In
re Allegiant Travel Co. Stockholder Derivative Litigation (Case No.
2:18-cv-1864-GMN-CWH) and reassigned to Judge Navarro. On April 8,
2019, the Plaintiffs in the Consolidated Derivative Action filed a
Verified Consolidated Stockholder Derivative Complaint.
In Checkman, the Defendants' motion to dismiss is fully briefed.
On May 13, 2019, in the Consolidated Derivative Action the Court
granted the parties' joint stipulation for a limited stay of
proceedings pending Judge Gordon's ruling on the motion to dismiss
in Checkman. The Court has not yet ruled on the Notices of Related
Cases filed on Jan. 8, 2019.
The Plaintiffs in the Consolidated Derivative Action agree that the
action contains factual contentions that overlap with the
allegations in Checkman, and the administration of justice would be
best served by having the same judicial officer -- Judge Gordon
--assigned to both Checkman and the Consolidated Derivative Action.
Their stipulation is not a waiver of any of the parties' rights,
remedies, claims, or defenses.
Therefore, they stipulate and agree, and upon approval and entry by
the Court will be ordered, as follows: (i) pursuant to the Court's
approval, Checkman and the Consolidated Derivative Action will be
deemed related, and (ii) pursuant to the Court's approval, the
Consolidated Derivative Action will be reassigned to Judge Gordon.
Pursuant to the parties' Stipulation, Judge Gordon (i) reassigned
Case No. 2:18-cv-1864-GMN-DJA to him, and (ii) identified Case No.
2:18-cv-1864-GMN-DJA and Case No. 2:18-cv-1758-APG-BNW as related
cases in their respective dockets.
A full-text copy of the Court's Aug. 20, 2019 Order is available at
https://is.gd/BYD1KO from Leagle.com.
Daniel Checkman, Individually And On Behalf Of All Others
Similarly
Situated, Plaintiff, represented by Phillip Kim –
pkim@rosenlegal.com -- The Rosen Law Firm, P.A., pro hac vice,
Laurence M. Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm,
P.A. & Patrick R. Leverty -- pat@levertylaw.com -- Leverty &
Associates Chtd.
Charles Brendon, Plaintiff, represented by Phillip Kim, The Rosen
Law Firm, P.A., pro hac vice, Laurence M. Rosen, The Rosen Law
Firm, P.A., Zachary Halper, pro hac vice & Patrick R. Leverty,
Leverty & Associates Chtd.
Charles Brendon, Movant, represented by Phillip Kim, The Rosen Law
Firm, P.A., pro hac vice, Laurence M. Rosen, The Rosen Law Firm,
P.A., Zachary Halper, pro hac vice & Patrick R. Leverty, Leverty &
Associates Chtd.
Allegiant Travel Company, Maurice J. Gallagher, Jr. & Scott
Sheldon, Defendants, represented by Colin W. Fraser --
frasercw@gtlaw.com -- Greenberg Taurig LLP, pro hac vice, Daniel
J.
Tyukody -tyukodyd@gtlaw.com -- Greenberg Traurig, LLP, pro hac
vice, Mark E. Ferrario -- ferrariom@gtlaw.com -- Greenberg Traurig
& Jacob D. Bundick -- bundickj@gtlaw.com -- Greenberg Traurig,
LLP.
Steven E. Harfst & Jude I Bricker, Defendants, represented by
Jacob
D. Bundick, Greenberg Traurig, LLP.
ALLIED UNIVERSAL: Douglas Seeks Initial Approval of Suit Settlement
-------------------------------------------------------------------
In the lawsuit titled KIRK DOUGLAS, individually and on behalf of
all others similarly situated v. ALLIED UNIVERSAL SECURITY SERVICES
ALLIED BARTON SECURITY SERVICES LLC and ALLIED SECURITY HOLDING
LLC, Case No. 1:17-cv-6093 (E.D.N.Y.), the Plaintiff moves for an
order:
(1) preliminary approving the settlement reached by the
parties in this action as embodied in their Amended
Settlement Agreement;
(2) provisionally certifying a settlement class under Rule 23
of the Federal Rules of Civil Procedure in connection with
the settlement process:
all present and former persons employed as Airport
Security Agents, Operation Assistants, or Tour Supervisors
at JFK by Defendants at any time between September 1, 2013
and May 28, 2019.
(3) provisionally certifying a settlement class under the Fair
Labor Standards Act, 29 U.S.C. Section 216(b) in
connection with the settlement process:
all present and former persons employed as Airport
Security Agents, Operation Assistants, or Tour Supervisors
at JFK by Defendants at any time between October 18, 2014
and May 28, 2019.
(4) approving the proposed Notice of Class Action Settlement
attached to the Settlement Agreement;
(5) appointing The Law Office of Christopher Q. Davis, PLLC,
as Class Counsel;
(6) appointing RG2 Claims Administration as the Administrator;
and
(7) approving the Parties' proposed schedule for final
settlement approval.[CC]
The Plaintiff is represented by:
Christopher Q. Davis, Esq.
Rachel M. Haskell, Esq.
THE LAW OFFICE OF CHRISTOPHER Q. DAVIS, PPLC
225 Broadway, Suite 1803
New York, NY 10007
Telephone: (646) 430-7932
E-mail: cdavis@workingsolutionsnyc.com
rhaskell@workingsolutionsnyc.com
ARCHER DANIELS: Manipulates Ethanol Prices, AOT Holding Alleges
---------------------------------------------------------------
AOT HOLDING AG, individually and on behalf of all others similarly
situated, Plaintiff v. ARCHER DANIELS MIDLAND COMPANY, Defendant,
Case No. 2:19-cv-02240-CSB-EIL (C.D. Ill., Sept. 4, 2019) seeks
redress under the Commodity Exchange Act for the Defendant's
manipulation of a key ethanol benchmark price -- the Chicago
Ethanol (Terminal) price -- that is used to price and settle
numerous ethanol derivatives traded on the New York Mercantile
Exchange ("NYMEX") and Chicago Board of Trade ("CBOT"), both
operated by CME Group, Inc.
According to the complaint, to ensure the Defendant's derivatives
bets would pay off handsomely, in November 2017 it began to
aggressively sell ethanol during the 30-minute window, the
Market-on-Close ("MOC" window) by reducing prices and filling the
lower-priced bids of various ethanol purchasers in these critical
30 minutes of daily trading. On its face, the Defendant's behavior
appeared economically irrational because it chiseled away at the
Defendant's ethanol profit margins and even drove prices below the
Defendant's variable cost of production. The Defendant's
competitors were largely unwilling to sell at these low prices
because they (and the Defendant) could sell their ethanol at
significantly higher prices at other terminals in the U.S. or
through private contracts, even after taking additional transport
costs into account.
The intended and actual effect of the Defendant's aggressive
pricing and filling of lower-priced bids during the MOC window was
to manipulate the Platts benchmark price downward. The Defendant's
downward manipulation of physical ethanol prices at the Argo
Terminal in turn artificially increased the value of the
Defendant's massive short positions in ethanol derivatives based on
those same prices—thus allowing the Defendant's ethanol group to
reap outsized profits despite low or negative margins on physical
ethanol sales. The Defendant's public financial filings have
credited this anomalous performance to "effective ethanol risk
management."
The evidence indicates that, starting in November 2017 and
continuing through today (the "Relevant Period"), much of the
Defendant's behavior was economically irrational and contrary to
its self-interest as an ethanol producer—unless it was intended
to manipulate physical ethanol prices at the Argo Terminal in order
to benefit the Defendant's large short positions in related ethanol
derivatives. Thus, the only reasonable conclusion to draw from the
evidence is that the Defendant in fact engaged in precisely this
kind of manipulation.
Archer-Daniels-Midland Company procures, transports, stores, and
merchandises agricultural commodities and products. The Company
processes oilseeds, corn, milo, oats, barley, peanuts, and wheat.
Archer-Daniels-Midland also processes produce products which have
primarily two end uses including food or feed ingredients. [BN]
The Plaintiffs are represented by:
George A. Zelcs, Esq.
John A. Libra, Esq.
Chad E. Bell, Esq.
Ryan Z. Cortazar, Esq.
KOREIN TILLERY LLC
205 North Michigan Ave., Suite 1950
Chicago, IL 60601
Telephone: 312-641-9750
Facsimile: 312-641-9751
E-mail: gzelcs@koreintillery.com
jlibra@koreintillery.com
cbell@koreintillery.com
rcortazar@koreintillery.com
- and -
Stephen M. Tillery, Esq.
Michael E. Klenov, Esq.
KOREIN TILLERY LLC
505 North 7th Street, Suite 3600
St. Louis, MO 63101
Telephone: 314-241-4844
Facsimile: 314-241-3525
E-mail: stillery@koreintillery.com
mklenov@koreintillery.com
B&G FOODS: Claims in Walker Suit Over Food Mislabeling Narrowed
---------------------------------------------------------------
Judge Jon S. Tigar of the U.S. District Court for the Northern
District of California granted in part and denied in part the
Defendants' motion to dismiss the case, TROY WALKER, Plaintiff, v.
B&G FOODS, INC., et al., Defendants, Case No. 15-cv-03772-JST (N.D.
Cal.).
In the putative class action, Plaintiff Walker contends that
Defendants B&G Foods, Inc., and B&G Foods North America, Inc.
unlawfully marketed and sold taco shells that contain partially
hydrogenated oils ("PHOs"). The complaint asserts seven claims for
relief: (1) violation of California's Unfair Competition Law,
"Unlawful Prong"; (2) violation of California's Unfair Competition
Law, "Fraudulent Prong"; (3) violation of California's Unfair
Competition Law, "Unfair Prong"; (4) violation of California's
False Advertising Law; (5) violation of California's Consumer Legal
Remedies Act; (6) breach of express warranty; and (7) breach of the
implied warranty of merchantability.
The Plaintiff's claims can be divided into mislabeling claims and
use claims. Their mislabeling claims (claims I, II, IV, V, and VI)
allege that the Defendants' taco shells were mislabeled because the
packaging stated 0g Trans Fat! when, in fact, the Defendants' taco
shells contained trans fat. The Plaintiff's use claims (claims III
and VII) contend that the inclusion of trans fat in the Defendants'
taco shells renders them not fit for their ordinary purpose and
that the harm caused by the inclusion of trans fat in the taco
shells outweighs any conceivable benefit of such conduct.
The Court dismissed the mislabeling claims with prejudice as
preempted by the federal Nutrition Labeling and Education Act. It
then concluded that Walker has standing to pursue his use claims,
including standing to pursue injunctive relief. However, the Court
stayed consideration of those claims under the primary jurisdiction
doctrine, pending the Food and Drug Administration's "determination
of the food additive status of trans fats." The Court ordered the
parties to file a joint statement, within 14 days of the FDA's
determination of any petition seeking food additive approval for
one or more specific uses of PHOs, setting forth their respective
positions on the effect of the FDA's determination on the
Plaintiff's remaining claims and recommending a further schedule.
The parties agree that the FDA issued a relevant determination on
May 21, 2018. They did not file the required joint statement
within 14 days, and it was not until nearly one year later -- on
May 13, 2019 -- that Walker filed a unilateral statement requesting
that the Court lift the stay and grant leave to file an amended
complaint. The Court set the matter for a June 12, 2019 case
management conference. At that time, the Defendants requested that
the Court rules on the outstanding issues from its original motion
to dismiss.
Two substantive issues remain to be resolved: whether Walker's
implied warranty of merchantability claim should be dismissed, and
whether the class claims should be dismissed because the Plaintiff
has not alleged any facts showing that the class is ascertainable.
In specific, the Plaintiff has not alleged any plausible way to
identify who would be in the class. The Defendants also ask the
Court to order Walker to show cause as to why sanctions should not
be imposed under Federal Rule of Civil Procedure 11(c)(3).
Walker contends that the Defendants breached the implied warranty
of merchantability by selling goods that are not "fit for the
ordinary purposes for which such goods are used." In particular,
he asserts that the presence of PHOs in the taco shells at issue
renders them unfit for human consumption.
Judge Tigar finds that Walker fails to state a plausible claim for
breach of the implied warranty of merchantability. Because it does
not appear that Walker could allege any facts to support his
contention that the taco shells at issue lack "even the most basic
degree of fitness for ordinary use," the Judge will dismiss the
claim without leave to amend.
During the time that the case was stayed, the Ninth Circuit decided
Briseno v. ConAgra Foods, Inc., in which it explained that the
language of Rule 23 does not impose a freestanding administrative
feasibility prerequisite to class certification. Mindful of the
Supreme Court's guidance, the Judge declines to interpose an
additional hurdle into the class certification process delineated
in the enacted Rule. This forecloses the Defendants' argument that
Walker's class claims should be dismissed on grounds that the
Plaintiff has not alleged any plausible way to identify who would
be in the class.
Finally, the Judge declines the Defendants' request that the Court
orders Walker to show cause under Federal Rule of Civil Procedure
11(c)(3) as to why he and his attorney should not be sanctioned.
Rule 11(c)(3) allows for such orders on a court's own initiative,
not on motion by a party. If the Defendants believe that sanctions
are warranted under Rule 11, they must follow the procedure for
filing a motion for sanctions under Rule 11(c)(2). In addition,
orders under Rule 11(c)(3) will ordinarily be issued only in
situations that are akin to a contempt of court, and the Judge is
not convinced that such circumstances are present in the case.
Based on the foregoing, Judge Tigar granted in part and denied in
part the Defendants' motion to dismiss. He granted the motion as
to Walker's breach of the implied warranty of merchantability
claim, which is dismissed without leave to amend. He denied it as
to Walker's proposed class claims and the Defendants' request that
the Court issues an order to show cause under Federal Rule of Civil
Procedure 11(c)(3).
The stay on the case is lifted. The parties will appear for a
further case management conference on Sept. 30, 2019, and file a
joint case management statement by Sept. 23, 2019.
A full-text copy of the Court's Aug. 20, 2019 Order is available at
https://is.gd/ZnVV1Q from Leagle.com.
Troy Walker, on behalf of himself and all others similarly
situated, Plaintiff, represented by Gregory Weston --
greg@westonfirm.com -- The Western Firm.
B&G Foods, Inc. & B&G Foods North America, Inc., Defendants,
represented by David Howard Kwasniewski --
kwasniewski@braunhagey.com -- BraunHagey & Borden, LLP, Jonas Noah
Hagey -- hagey@braunhagey.com -- BraunHagey & Borden LLP & Matthew
Brooks Borden -- aborden@braunhagey.com -- BraunHagey & Borden
LLP.
BAR 20: Class Cert. Discovery Deadline in Maciel Moved to Nov. 15
-----------------------------------------------------------------
Magistrate Judge Sheila K. Oberto of the U.S. District Court for
the Eastern District of California extended the discovery period in
the case, JOSE MACIEL and ELVIS BONILLA, on behalf of themselves,
and all others similarly situated, and as "aggrieved employees" on
behalf of other "aggrieved employees" under the Labor Code Private
Attorney General Act of 2004, Plaintiffs, v. BAR 20 DAIRY, LLC, a
California limited liability company, Defendant, Case No.
1:17-cv-00902-DAD-SKO (E.D. Cal.), to Nov. 15, 2019 to allow the
parties sufficient time to complete the procedure outlined in their
stipulation and any further discovery needed after the Plaintiffs'
receipt of the contact information.
Plaintiffs Maciel and Bonilla previously filed separate cases in
Fresno County Superior Court against the Defendant, alleging
violations of the Fair Labor Standards Act, and California labor
laws. The two cases were consolidated in state court on April 27,
2016, alleging class action claims, and on July 7, 2017, the
Defendant removed the case to the Court. On March 15, 2019, the
Court entered a Scheduling Order setting the class certification
deadline for Sept. 30, 2019, and the deadline for filing for class
certification for Dec. 13, 2019. The Plaintiffs filed a Fifth
Amended Complaint on April 30, 2019.
On Aug. 13, 2019, the parties filed a "Stipulation Re Discovery of
Putative Class Member Identities and Contact Information." The
stipulation states that during class certification discovery, the
Plaintiffs requested that the Defendant identifies all its
non-exempt employees in California during the relevant time period
of Feb. 11, 2011 to the present, including all employees employed
in the following departments and/or job categories, or any like
position(s): Breeders, Calf, Corral Maintenance, Feed Push,
Feeders, Fresh Cow, Hospital, Maintenance, Waste Management,
Maternity, Milkers, Farm Tractor and Equipment Drivers, Farm
Irrigators, and Farm Shop.
The parties met and conferred and agreed on a method of producing
the information that balances the Plaintiffs' need for the
information and the Defendant's employees' privacy rights. They
propose that the Defendant provide to a third-party administrator a
list of all the putative class members and their names, addresses,
email addresses, and telephone numbers, and the administrator mail
a notice letter, to all the putative class members.
The putative class members will then have an opportunity to
"opt-out" of class certification discovery by either mailing a
postcard included with the notice letter, or by emailing the
administrator, within 30 days of the date of mailing. No later
than 45 days after mailing the notice letters, the administrator
will provide the Plaintiffs with a list of all the putative class
members who did not "opt-out" and their contact information, and
provide to the Defendant a list of all the putative class members
who did "opt-out." Finally, the Plaintiffs will keep all
information discovered by the process confidential, will use the
information only for purposes of the litigation, and will return
the information to Defendant or destroy it at the end of the case.
Magistrate Judge Oberto finds that the Plaintiffs are entitled to
the contact information of the putative class members to
substantiate class allegations and meet certification requirements,
and the parties have proposed the type of opt-out procedure that
has been routinely accepted in federal and state courts in
California. The procedure proposed by the parties is appropriate
and sufficiently protects the privacy rights of Defendant's
employees. This is especially true because the information
requested is limited to basic contact information, which is less
sensitive than more intimate privacy interests such as compelled
disclosure of medical records and personal histories, and the
Plaintiffs have agreed to keep the information confidential, use
the information only for purposes of the litigation, and return or
destroy it at the end of the case. Finally, the Judge finds the
use of a third-party administrator appropriate as well.
In view of Sept. 30, 2019 class certification discovery deadline,
the JUdge will sua sponte extend the discovery period to allow the
parties sufficient time to complete the procedure outlined in their
stipulation and any further discovery needed after the Plaintiffs'
receipt of the contact information.
Based on the foregoing, Magistrate Judge Oberto granted the
parties' stipulated request. The Defendant will produce the list
of the putative class members and their contact information to the
Plaintiffs pursuant to the terms of the parties' stipulation. The
class certification discovery deadline is extended to Nov. 15,
2019. All other deadlines in the Scheduling Order remain
unchanged.
A full-text copy of the Court's Aug. 16, 2019 Order is available at
https://is.gd/1iMkUv from Leagle.com.
Jose Maciel, on behalf of himself, and all others similarly
situated, and as an "aggrieved employee" on behalf of other
"aggrieved employees" under the Labor Code Private Attorney
General
Act of 2004, Plaintiff, represented by Caroline Tahmassian Zarneh
-- caroline@spivaklaw.com -- The Spivak Law Firm & David Glenn
Spivak -- david@spivaklaw.com -- The Spivak Law Firm.
Elvis Bonilla, on behalf of himself, and all others similarly
situated, and as an "aggrieved employee" on behalf of other
"aggrieved employees" under the Labor Code Private Attorney
General
Act of 2004, Plaintiff, represented by Eric Bryce Kingsley --
eric@kingsleykingsley.com -- Kingsley & Kingsley APC & Kelsey M.
Peterson-More -- kelsey@kingsleykingsley.com -- Kingsley &
Kingsley.
Bar 20 Dairy, LLC, a California limited liability company,
Defendant, represented by Jared Hague -- jared@suttonhague.com --
Sutton Hague Law Corporation, PC, Joseph Vidal Macias --
joseph.macias@maximintegrated.com -- Sutton Hague Law Corporation,
PC, S. Brett Sutton -- brett@suttonhague.com -- Sutton Hague Law
Corporation, PC & Wesley Lawrence Carlson, Sutton Hague Law
Corporation.
BARCLAYS BANK: FrontPoint's Claims in Antitrust Suit Dismissed
--------------------------------------------------------------
In the case, SONTERRA CAPITAL MASTER FUND, LTD., RICHARD DENNIS,
and FRONTPOINT EUROPEAN FUND, L.P., on behalf of themselves and all
others similarly situated, Plaintiffs, v. BARCLAYS BANK PLC,
COOPERATIEV ECENTRALE RAIFFEISEN-BOERENLEENBANK B.A., DEUTSCHE BANK
AG, LLOYDS BANKING GROUP PLC, THE ROYAL BANK OF SCOTLAND PLC, UBS
AG, JOHN DOE NOS. 1-50, and BARCLAYS CAPITAL, INC., Defendants,
Case No. 15-CV-3538 (VSB) (S.D. N.Y.), Judge Vernon S. Broderick of
the U.S. District Court for the Southern District of New York (i)
denied FrontPoint's motion to substitute Fund Liquidation Holdings,
LLC ("FLH"), individually, and as assignee of and attorney-in-fact
for FrontPoint, pursuant to Federal Rule of Civil Procedure
17(a)(3); and (ii) granted grant UBS' request that FrontPoint's
claims be dismissed in their entirety.
Plaintiff FrontPoint brings the putative antitrust class action
lawsuit against Defendant UBS for allegedly conspiring with other
financial institutions to manipulate the London Interbank Offered
Rate ("LIBOR") for British Pound Sterling. The action arises out
of alleged manipulation and price fixing of the Sterling LIBOR by
numerous financial institutions, which allegedly harmed purchasers
and sellers of financial instruments that were in some way
connected to LIBOR. In 2007, FrontPoint -- a Delaware limited
partnership -- entered into swap transactions with UBS, the price
of which was allegedly affected by UBS's manipulation of Sterling
LIBOR.
On July 13, 2011, as FrontPoint was preparing to wind up and cease
operations, FrontPoint and related entities entered into an Asset
Purchase Agreement ("APA") with FLH. Pursuant to the APA,
FrontPoint absolutely, unconditionally and irrevocably sold,
assigned, conveyed and transferred to FLH all of FrontPoint's
"right, title and interest" in certain of FrontPoint's assets. The
APA also appointed FLH as FrontPoint's attorney-in-fact and granted
FLH the authority to take certain actions on FrontPoint's behalf.
The APA further provided that the agreement would be "governed by
and construed in accordance with the laws of the State of New
York." On March 9, 2012, FrontPoint filed its Certificate of
Cancellation of Certificate of Limited Partnership with the
Delaware Secretary of State.
Notwithstanding the fact that FrontPoint had ceased operations in
2012, FrontPoint -- along with Richard Dennis -- filed a complaint
against the Defendants on Jan. 21, 2016, in which FrontPoint
alleged that it is a Delaware limited partnership with its
principal place of business in Greenwich, Connecticut. On Feb. 16,
2016, FrontPoint and Dennis' action was consolidated with the
instant case, which had been filed by Sonterra on May 6, 2015.
Plaintiffs FrontPoint, Sonterra, and Dennis filed a Consolidated
Amended Class ("CAC") Action Complaint on Feb. 25, 2016. The CAC
-- which also described FrontPoint as a live entity, asserted
federal claims under the Sherman Antitrust Act; the Commodity
Exchange Act; and the Racketeer Influenced and Corrupt
Organizations Act; and also asserted common law claims for breach
of the implied covenant of good faith and fair dealing and unjust
enrichment.
On April 11, 2016, the Defendants moved to dismiss the CAC in its
entirety for lack of subject matter jurisdiction and personal
jurisdiction, and for failure to state a claim, pursuant to Federal
Rules of Civil Procedure 12(b)(1), 12(b)(2), and (12)(b)(6). On
Nov. 6, 2017 -- while the Defendants' motion to dismiss was pending
-- the Plaintiffs submitted a letter requesting a pre-motion
conference in advance of seeking leave to substitute FLH as a
plaintiff in place of both FrontPoint and Sonterra under Federal
Rule of Civil Procedure 17(a)(3).
In that letter, FrontPoint and Sonterra explained that they were
contacted by the Defendants in October 2017 regarding certain
inaccuracies in the CAC -- namely the references to FrontPoint and
Sonterra as "live" entities. They acknowledged that both entities
had long since ceased operations but asserted that, prior to doing
so, they had each assigned and transferred their respective rights
to bring the instant lawsuit to FLH. Accordingly, FrontPoint and
Sonterra argued that substitution of FLH into the action, both
individually and as assignee and attorney-in-fact for FrontPoint
and Sonterra, would address any potential concerns relating to the
fact that FrontPoint and Sonterra were "no longer in business."
In a letter dated Nov. 9, 2017, the Defendants noted their
opposition to FrontPoint and Sonterra's substitution request but
asserted that the Court should address the Defendants' motion to
dismiss prior to entertaining the Plaintiffs' request given that a
ruling in the Defendants' favor on that motion would "render the
proposed substitution motion moot."
On Dec. 21, 2018, Judge Broderick issued an Opinion & Order
dismissing all of the Plaintiffs' claims, with the exception of
FrontPoint's antitrust and unjust enrichment claims against UBS.
His order did not address the substance of FrontPoint's
substitution request, but rather instructed FrontPoint to file its
motion to substitute pursuant to Rule 17(a)(3), limited in scope to
the surviving claims.
On Feb. 5, 2019, FrontPoint filed the instant motion to substitute,
along with a memorandum of law and supporting declarations with
exhibits. UBS filed its opposition to FrontPoint's motion on March
5, 2019, along with a declaration with exhibits in support; and
FrontPoint filed its reply and supporting declarations with
exhibits on March 18, 2019.
Considering FrontPoint's Sherman Act claim first, Judge Broderick
notes that the APA makes no reference to the Sherman Act
specifically or to "antitrust claims" generally. The APA also
fails to make an unambiguous assignment of causes of action in a
manner that would clearly encompass the antitrust claim. Rather,
the APA specifically defines the claims assigned to FLH to exclude
all claims other than those pertaining to "securities class action
lawsuits." He also finds that the APA did not assign FrontPoint's
unjust enrichment claim to FLH. Because he find the APA's
language unambiguous, the Judge declines to consider the supporting
declarations that FrontPoint has submitted to establish the
parties' intent in drafting the agreement.
Finally, the Judge finds that FrontPoint cannot invoke the APA's
Power of Attorney clause as the source of FLH's asserted right to
bring the instant claims. The APA designates and appoints FLH "as
FrontPoint's attorney-in-fact, with the right, power, and authority
to take a wide range of actions on behalf of FrontPoint, in
FrontPoint's name, place and stead, with respect to any of the
Claims. The foregoing power of attorney is coupled with an
interest and may not be terminated or revoked by FrontPoint at any
time."
Thus, because he has determined that FLH was not assigned the
claims asserted in the litigation -- and that FLH lacks an interest
"in the thing itself" -- the Judge finds that the power of attorney
terminated when FrontPoint ceased operations in 2012 and it
therefore cannot be the source of FLH's right to assert the claims
at issue in the litigation.
Because he has concluded that FrontPoint did not assign the claims
at issue in the litigation to FLH and that FLH therefore may not be
substituted pursuant to Rule 17(a)(3), he need not and declines to
consider UBS' remaining arguments as to why substitution would be
improper.
Having determined that FLH may not be substituted as a Plaintiff in
the action, the Judge turns to the issue of whether FrontPoint may
continue to litigate the action in its own name. Because it is
undisputed that FrontPoint lacked capacity to sue when the instant
action was filed on Jan. 21, 2016 -- and continues to lack capacity
today -- he grants UBS' request to dismiss the action in its
entirety.
For the foregoing reasons, Judge Broderick denied FrontPoint's
motion for substitution. Because FrontPoint lacks capacity to
maintain thes lawsuit, he dismissed its claims. The Clerk of Court
is respectfully directed to terminate the motions pending at Docket
Entries 196, 198, and 201, and to close the case.
A full-text copy of the Court's Aug. 16, 2019 Opinion and Order is
available at https://is.gd/vuikz4 from Leagle.com.
Sonterra Capital Master Fund, Ltd., on bhealf of itself and all
others similarly situated, Plaintiff, represented by Christian
Levis -- clevis@lowey.com -- Lowey Dannenberg P.C., Geoffrey
Milbank Horn -- ghorn@lowey.com -- Lowey Dannenberg P.C., Raymond
Peter Girnys -- rgirnys@lowey.com -- Lowey Dannenberg, P.C.,
Vincent Briganti -- -- Lowey Dannenberg, P.C., Benjamin Martin
Jaccarino -- bjaccarino@lshllp.com -- Lovell Stewart Halebian
Jacobson LLP, Christopher Lovell -- CLovell@lshllp.com -- Lovell
Stewart Halebian Jacobson LLP, Lee Jason Lefkowitz --
name@email.com -- Lowey Dannenberg P.C., Peter Dexter St. Phillip,
Jr. -- pstphillip@lowey.com -- Lowey Dannenberg, P.C. & Sitso W.
Bediako -- sbediako@lowey.com -- Lowey Dannenberg P.C.
Richard Dennis, on behalf of themselves and all others similarly
situated, Plaintiff, represented by Christian Levis, Lowey
Dannenberg P.C., Geoffrey Milbank Horn, Lowey Dannenberg P.C., Lee
Jason Lefkowitz, Lowey Dannenberg P.C., Peter Dexter St. Phillip,
Jr., Lowey Dannenberg, P.C., Raymond Peter Girnys, Lowey
Dannenberg, P.C., Sitso W. Bediako, Lowey Dannenberg P.C., Vincent
Briganti, Lowey Dannenberg, P.C. & James Anthony Diehl, Akin Gump
Strauss Hauer & Feld LLP.
Frontpoint European Fund L.P., on behalf of themselves and all
others similarly situated, Plaintiff, represented by Christian
Levis, Lowey Dannenberg P.C., Geoffrey Milbank Horn, Lowey
Dannenberg P.C., Lee Jason Lefkowitz, Lowey Dannenberg P.C., Peter
Dexter St. Phillip, Jr., Lowey Dannenberg, P.C., Raymond Peter
Girnys, Lowey Dannenberg, P.C., Sitso W. Bediako, Lowey Dannenberg
P.C. & Vincent Briganti, Lowey Dannenberg, P.C.
Frontpoint European Fund, L.P., on behalf of themselves and all
others similarly situated & Richard Dennis, on behalf of
themselves
and all others similarly situated, Consolidated Plaintiffs,
represented by Geoffrey Milbank Horn, Lowey Dannenberg P.C. &
Vincent Briganti, Lowey Dannenberg, P.C.
Barclays Bank PLC & Barclays Capital, Inc., Defendants,
represented
by David Harold Braff `-- braffd@sullcrom.com -- Sullivan and
Cromwell, LLP, Jonathan David Schiller -- jschiller@bsfllp.com --
Boies, Schiller & Flexner LLP, Amos Emory Friedland --
afriedland@bsfllp.com -- Boies, Schiller & Flexner LLP, Jeffrey T.
Scott -- scottj@sullcrom.com -- Sullivan and Cromwell, LLP, Leigh
Mager Nathanson -- lnathanson@bsfllp.com -- Boies, Schiller &
Flexner LLP, Matthew Joseph Porpora porporam@sullcrom.com --
Sullivan & Cromwell, LLP, Melissa Brooke Felder Zappala --
mfelder@bsfllp.com -- Boies, Schiller & Flexner LLP, Michael
Brille
-- mbrille@bsfllp.com -- Boies, Schiller & Flexner LLP, pro hac
vice & Yvonne Susan Quinn -- quinny@sullcrom.com -- Sullivan &
Cromwell, LLP.
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., Defendant,
represented by David Robert Gelfand, Milbank, Tweed, Hadley &
McCloy LLP, Jonathan Ohring, Milbank, Tweed, Hadley & McCloy LLP,
Mark David Villaverde, Milbank, Tweed, Hadley & McCloy LLP,
Melanie
Westover Yanez, Milbank, Twwed, Hadley & McCloy, LLP & Sean Miles
Murphy, Milbank, Tweed, Hadley & McCloy LLP.
Deutsche Bank AG, Defendant, represented by Aidan John Synnott,
Paul Weiss, Elizabeth M. Sacksteder, Paul, Weiss, Rifkind, Wharton
& Garrison LLP, Elizabeth Justine Grossman, Paul, Weiss, Rifkind,
Wharton & Garrison & Michael Joseph Biondi, Paul, Weiss, Rifkind,
Wharton & Garrison LLP.
Lloyds Banking Group Plc, Defendant, represented by Lisa Jean
Fried
, Hogan Lovells US LLP, Benjamin Andrew Fleming, Hogan Lovells US
LLP, Kevin Timothy Baumann, Hogan Lovells US LLP & Marc Joel
Gottridge, Hogan Lovells US LLP.
The Royal Bank of Scotland PLC, Defendant, represented by David
Sapir Lesser, Wilmer Cutler Pickering Hale & Dorr LLP, Fraser Lee
Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP & Jamie
Stephen Dycus, Wilmer Cutler Pickering Hale and Dorr LLP.
UBS AG, Defendant, represented by Eric Jonathan Stock, Gibson,
Dunn
& Crutcher, LLP, Jefferson Eliot Bell, Gibson, Dunn & Crutcher,
LLP, Lawrence Jay Zweifach, Gibson, Dunn & Crutcher, LLP & Mark
Adam Kirsch, Gibson, Dunn & Crutcher, LLP.
Lloyds Banking Group Plc, Consolidated Defendant, represented by
Marc Joel Gottridge, Hogan Lovells US LLP.
BARTON PERREIRA: Traynor Asserts Breach of ADA
----------------------------------------------
Barton Perreira, LLC is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Yaseen Traynor also known as: Yaseen Traylor other, on behalf of
himself and all others similarly situated, Plaintiff v. Barton
Perreira, LLC, Defendant, Case No. 1:19-cv-08883 (S.D. N.Y., Sept.
25, 2019).
Barton Perreira LLC is a privately held company categorized under
protective eyeware.[BN]
The Plaintiff is represented by:
Russel Craig Weinrib, Esq.
Stein Saks PLLC
285 Passaic St., Suite 5
Hakensack, NJ 07601
Tel: (201) 282-6500
Email: rweinrib@steinsakslegal.com
BAY PARK: Clark Remanded to New York State Court
------------------------------------------------
In the case, SHERARD CLARK, Plaintiff, v. BAY PARK CENTER FOR
NURSING AND REHABILITATION, ET AL., Defendants, Case No. 19-CV-506
(VSB) (S.D. N.Y.), Judge Vernon S. Broderick of the U.S. District
Court for the Southern District of New York granted in part and
denied in part the Plaintiff's motion to remand and for attorneys'
fees and costs.
Plaintiff Clark brought the action in the Supreme Court of the
State of New York, County of Bronx, on Nov. 27, 2018, against
Defendants Bay Park Center for Nursing and Rehabilitation, LLC,
Benjamin Landa, Ben Philipson, Mayer Fischl, Eli Grinspan, Chana
Laerner, Berish Rubinstein, Naomi Tessler, Sentosacare, LLC, and
several John Defendants, alleging in a single cause of action
various violations of Section 2801 -d of New York's Public Health
Law. The Plaintiff alleges that the Defendants violated Section
2801-d of New York's Public Health Law by failing to staff a
sufficient number of nurses and aides, thereby depriving the
Plaintiff and other residents of a nursing home owned and operated
by the Defendants of the level of care required under New York and
federal law.
On Jan. 17, 2019, the Defendants removed the action to the Court.
On Feb. 1, 2019, they filed a motion to compel arbitration. The
Plaintiff did not respond to that motion; instead, he filed a
motion to remand the action to the Supreme Court of the State of
New York.
In light of the motion to remand, Judge Broderick denied the
Defendants' motion to compel arbitration without prejudice. The
Defendants filed an opposition to the Plaintiff's motion to remand
on Feb. 27, 2019, and the Plaintiff filed his reply on March 6,
2019.
The Defendants assert that because the Plaintiff's Complaint
alleges that the Defendants violated federal laws, the Plaintiff's
cause of action arises under the laws of the United States, and
therefore the Court has original subject matter jurisdiction over
the Complaint. For example, the complaint alleges that the
Defendants' conduct violates "federal and New York State laws,
rules, and regulations," and states that a "resident's right to
sufficient staffing is one of the most important rights protected
by New York and federal statutes." Additionally, in the portion of
the complaint related to class action allegations, the Plaintiff
alleges eight questions of fact and law that are common to all
members of the purported class, and one of those questions is
whether the Defendants' conduct violated or violates the federal
Nursing Home Reform Act.
The Plaintiff's sole cause of action alleges violations of a state
law, Section 2801-d of New York's Public Health Law. Accordingly,
even though his complaint refers to the violation of a federal law,
federal subject matter jurisdiction will only lie if the Defendants
can demonstrate that each of the four elements articulated in Gunn
have been met.
Judge Broderick begins with a discussion of the first element,
which is whether a federal issue is "necessarily raised." He finds
that the Plaintiff's state law claim under Section 2801-d does not
necessarily raise a federal issue. Because the Defendants must
demonstrate all four of the Gunn requirements are met, he need not
consider the other three in order to find that federal subject
matter jurisdiction does not lie under 28 U.S.C. Section 1331.
The Second Circuit has approved awards of attorneys' fees related
to motions to remand where arguments for federal jurisdiction were
based on federal defenses, or on claims raised in a third-party
complaint. The circumstances of this case are easily
distinguishable. The Plaintiff's complaint includes several
allegations that the Defendants violated federal laws, including
references to specific federal statutes. In light of these
allegations and references, the Judge cannot find that there was no
objectively reasonable basis for the Defendants' removal, even
though they do not establish federal subject matter jurisdiction.
Accordingly, he will follow the "general rule" and declines to
award attorneys' fees.
For the foregoing reasons, Judge Broderick granted in part and
denied in part the Plaintiff's motion. The Plaintiff's motion to
remand is granted, and remanded the case to the Supreme Court of
the State of New York, County of Bronx. He denied the Plaintiff's
motion for an award of attorneys' fees and costs related to the
motion to remand. The Clerk of Court is respectfully directed to
terminate the open motion at Document 8 and to close the case.
A full-text copy of the Court's Aug. 16, 2019 Opinion and Order is
available at https://is.gd/FbtWgF from Leagle.com.
Sherard Clark, Individually and on behalf of all others similarly
situated, Plaintiff, represented by Jeremiah Lee Frei-Pearson --
jfrei-pearson@fbfglaw.com -- Finkelstein Blankinship, Frei-Pearson
& Garber, LLP & Todd Seth Garber -- tgarber@fbfglaw.com --
Finkelstein Blankinship, Frei-Pearson & Garber, LLP.
Bay Park Center For Nursing and Rehabilitation, LLC, doing business
as Bay Park Center For Nursing And Rehabilitation, Benjamin Landa,
Ben Philipson, Mayer Fischl, Eli Grinspan, Chana Laerner, Berish
Rubinstein, Naomi Tessler, Sentosacare, LLC & Does 1-25,
Defendants, represented by Lori Rosen Semlies --
lori.semlies@wilsonelser.com -- Wilson Elser Moskowitz Edelman &
Dicker LLP.
BELK INC: Traynor Asserts Violation under Disabilities Act
----------------------------------------------------------
Belk, Inc. is facing a class action lawsuit filed pursuant to the
Americans with Disabilities Act. The case is styled as Yaseen
Traylor also known as: Yaseen Traylor other, on behalf of himself
and all others similarly situated, Plaintiff v. Belk, Inc.,
Defendant, Case No. 1:19-cv-08887 (S.D. N.Y., Sept. 25, 2019).
Belk, Inc., is an American department store chain founded in 1888
by William Henry Belk in Monroe, North Carolina, with nearly 300
locations in 16 states. Belk stores and Belk.com offer apparel,
shoes, accessories, cosmetics, home furnishings and wedding
registry.[BN]
The Plaintiff is represented by:
Russel Craig Weinrib, Esq.
Stein Saks PLLC
285 Passaic St., Suite 5
Hakensack, NJ 07601
Tel: (201) 282-6500
Email: rweinrib@steinsakslegal.com
BORO PARK: Adrien Files Suit in N.Y. Sup. Ct.
---------------------------------------------
A class action lawsuit has been filed against BORO PARK OPERATING
CO., LLC. The case is styled as LUCILLE ADRIEN individually and on
behalf of all other persons simalrly situated who were employed by
BORO PARK OPERATING CO., LLC D/B/A BORO PARK CENTER FOR
REHABILITATION AND HEALTHCARE, Plaintiff v. BORO PARK OPERATING
CO., LLC, Defendant, Case No. 159245/2019 (N.Y. Sup. Ct., New York
Cty., Sept. 23, 2019).
BORO PARK OPERATING CO LLC is a healthcare provider in Brooklyn,
NY.[BN]
BUYSEASONS ENTERPRISES: Traylor Files ADA Suit in New York
----------------------------------------------------------
Buyseasons Enterprises, LLC is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Yaseen Traynor also known as: Yaseen Traylor other, on behalf of
himself and all others similarly situated, Plaintiff v. Buyseasons
Enterprises, LLC, Defendant, Case No. 1:19-cv-08889 (S.D. N.Y.,
Sept. 25, 2019).
Buyseasons Enterprises, LLC is a Costume store in New Berlin,
Wisconsin.[BN]
The Plaintiff is represented by:
Russel Craig Weinrib, Esq.
Stein Saks PLLC
285 Passaic St., Suite 5
Hakensack, NJ 07601
Tel: (201) 282-6500
Email: rweinrib@steinsakslegal.com
CACHET FINANCIAL: Faces Class Suit Over Alleged MyPayrollHR Fiasco
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A class action lawsuit was filed in Los Angeles Federal Court
alleging that Cachet Financial Services failed to abide by industry
and federal regulatory standards which allowed for MyPayrollHR to
exact a scheme to fraudulently withdraw $26 million from 250,000
employees nationwide.
Cachet is a payroll processing and financial services company that
processes $150 billion annually for more than 110,000 employers. A
company called MyPayrollHR subcontracted its payroll processing
work to Cachet but in August of 2019, MyPayrollHR executed a
massive $26 million fraud. The lawsuit alleges that this fraud was
only made possible because Cachet failed to abide by industry and
federal regulations which would have provided safety protocols to
prevent this sort of disaster. MyPayrollHR has since shut down, its
founder Michael Mann has disappeared, and the FBI is currently
investigating the company and Mr. Mann.
"This financial nightmare is ruinous to the employees who did
nothing wrong and earned their pay to which they were legally
entitled," said attorney Alfredo Torrijos of Arias Sanguinetti Wang
& Torrijos LLP. "Cachet failed to abide by federal standards which
would have prevented this nightmare and even attempted to claw back
payments from the employees."
According to the complaint, after doing business with MyPayrollHR
for 12 years, Cachet was given a completely different set of
deposit and withdrawal instructions which it executed without any
scrutiny. As a result, on August 29 and August 30 of 2019,
MyPayrollHR was able to fraudulently take $26 million meant to
cover the payroll of a quarter of a million people. After
discovering what had occurred, the complaint goes on to state that
Cachet panicked and tried to perform "claw back" withdrawals from
employees. Those attempts to claw back the money happened almost a
full week later and were performed so poorly that one member of the
class who had under $1,000 in a bank account was overdrawn by
nearly $1,000,000 after repeated reversals were attempted by
Cachet.
Many members of the class still do not have access to their pay
from that period which has impacted their ability to pay bills,
care for their families, pay child support, travel to work and
more. They have incurred costs of fees, interest, missed payments
and impacts to credit scores.
The case is Veleta Stevens et al. v. Cachet Financial Services,
Financial Business Group Holdings, U.S. District Court Central
District of California, Case No. 2:19-cv-08120.
With offices in Oakland, Los Angeles, Las Vegas and Montreal, Arias
Sanguinetti Wang & Torrijos represents clients in complex
litigation in state and federal courts throughout the United
States. Some of our practice areas include: Class Actions, Mass
Torts, Major Personal Injury, Employment Law, and Intellectual
Property Rights. On the web: https://aswtlawyers.com/
The Detroit class action attorneys of Liddle & Dubin, PC --
https://www.ldclassaction.com/ -- have represented tens of
thousands of individuals in class actions involving a variety of
environmental contamination -- including air pollution, noxious
odors, fugitive dust, and sewage backup or flooding -- or cases
involving consumer fraud. We believe that class actions level the
playing field between large corporate entities and the individual
citizen. As stated by one court, the class action is a very
valuable tool to the "everyday, average citizen lost and bewildered
in the jungle of giants." To learn more about us, go to:
https://www.ldclassaction.com
Contact:
Joe Marchelewski, Esq.
Tel: 310-462-2252
Email: joe@jurisproductions.com [GN]
CADENCE BANCORPORATION: Gainey McKenna Files Class Action
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Gainey McKenna & Egleston announces that a class action lawsuit has
been filed against Cadence Bancorporation (NYSE: CADE) in the
United States District Court for the Southern District of Texas on
behalf of those who purchased or acquired the securities of Cadence
between July 23, 2018 through July 22, 2019, inclusive (the "Class
Period"), seeking to recover damages caused by Defendants'
violations of the federal securities laws and to pursue remedies
under Sections 10(b) and 20(a) of the Securities Exchange Act of
1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder.
The Complaint alleges Defendants made false and/or misleading
statements and/or failed to disclose that: (1) the Company lacked
adequate internal controls to assess credit risk; (2) as a result,
certain of the Company's loans posed an increased risk of loss; (3)
as a result, the Company was reasonably likely to incur significant
losses for certain loans; (4) the Company's financial results would
suffer a material adverse impact; and (5) as a result, Cadence'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.
Investors who purchased or otherwise acquired shares during the
Class Period should contact the Firm prior to the November 15, 2019
lead plaintiff motion deadline. A lead plaintiff is a
representative party acting on behalf of other class members in
directing the litigation. If you wish to discuss your rights or
interests regarding this class action, please contact Thomas J.
McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey McKenna &
Egleston at (212) 983-1300, or via e-mail at tjmckenna@gme-law.com
or gegleston@gme-law.com
Please visit our website at http://www.gme-law.comfor more
information about the firm. [GN]
CANADA GOOSE: Nov. 4 Lead Plaintiff Bid Deadline
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Rosen Law Firm, a global investor rights law firm, reminds
purchasers of the securities of Canada Goose Holdings, Inc. (NYSE:
GOOS) from March 16, 2017 through August 1, 2019, inclusive (the
"Class Period") of the important November 4, 2019 lead plaintiff
deadline in the case. The lawsuit seeks to recover damages for
Canada Goose investors under the federal securities laws.
To join the Canada Goose class action, go to
https://www.rosenlegal.com/cases-register-1646.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) Canada Goose sourced the down and fur used in its
clothing products in a way that treated animals in an unethical and
inhumane manner; (2) Canada Goose was thus non-compliant with
relevant Federal Trade Commission ("FTC") regulations pertaining to
false advertising with respect to its sourcing practices; (3)
accordingly, Canada Goose was the subject of an ongoing FTC
investigation regarding false advertising; and (4) as a result,
Canada Goose'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 action lawsuit has already been filed. If you wish to serve
as lead plaintiff, you must move the Court no later than November
4, 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-1646.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. Attorney advertising. Prior
results do not guarantee future outcomes.
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
E-mail: lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com [GN]
CENTRA TECH: Court Denies Rensel's Class Certification Bid
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The Hon. Robert N. Scola, Jr., denies the Plaintiffs' Motion for
Class Certification in the lawsuit captioned Jacob Zowie Thomas
Rensel and others v. Centra Tech, Inc., Case No. 1:17-cv-24500-RNS
(S.D. Fla.).
The Court finds that, in addition to filing an untimely motion for
class certification, the Plaintiffs have failed to meet their
burden of demonstrating that the proposed classes are
ascertainable. The Court opines that the Plaintiffs have failed to
proffer any evidence that Centra Tech's records would be useful to
identify class members.
In December 2017, the Plaintiffs in this case filed a class action
complaint against Defendant Centra Tech and a number of related
individuals. Centra Tech, a company founded in May 2016, purported
to sell cryptocurrency, "Centra Tech Tokens" or "CTR Tokens," in an
initial coin offering. The ICO allegedly raised funds for, among
other things, a debit card backed by Visa and Mastercard that would
allow users to instantly use cryptocurrencies to make purchases.
Between July 23, 2017 and April 20, 2018, Centra Tech's ICO raised
more than $32 million from thousands of investors.
The founders of Centra Tech, Defendants Sharma, Farkas, and Trapani
are currently the subject of an SEC enforcement action for
securities fraud (S.E.C. v. Sharma et al., No. 18-cv-2909-DLC
(S.D.N.Y.) and are being criminally prosecuted in the Southern
District of New York for the fraudulent Centra Tech scheme (United
States v. Sharma et al., No. 18-cr-340-LGS (S.D.N.Y.)).
The Plaintiffs proposed these three subclasses:
(1) All persons and entities who purchased CTR Tokens directly
from Defendant Centra Tech during Centra Tech's official
initial coin offering from approximately June 23, 2017
through October 5, 2017;
(2) All persons and entities who purchased CTR Tokens directly
from Defendant Centra Tech during the remainder of Centra
Tech's initial coin offering from approximately October 6,
2017 through April 20, 2018; and
(3) All persons and entities who purchased CTR Tokens on the
open market as a result of Defendant Centra Tech
successfully soliciting their purchases of CTR Tokens.[CC]
CHARLES SCHWAB: 9th Cir. Flips Arbitration Denial in Dorman Suit
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In the case, MICHAEL F. DORMAN, individually as a participant in
the SCHWAB PLAN RETIREMENT SAVINGS AND INVESTMENT PLAN and on
behalf of a class of all those similarly situated,
Plaintiff-Appellee, v. THE CHARLES SCHWAB CORPORATION; et al.,
Defendants-Appellants, Case No. 18-15281 (9th Cir.), the U.S. Court
of Appeals for the Ninth Circuit reversed the district court's
denial of the Defendants' motion to compel individual arbitration.
The Court opines that the district court erred by refusing to
compel arbitration of the ERISA breach of fiduciary duty claims
asserted in the First Amended Class Action Complaint even though
those claims fall squarely within the ambit of at least the Schwab
Retirement Savings and Investment Plan.
First, the Court finds that the district court incorrectly found
that Dorman was not bound by the Plan document's arbitration
provision. Contrary to the district court's ruling, the record
reflects that Dorman participated in the Plan for nearly a year
while the Provision was in effect. A plan participant agrees to be
bound by a provision in the plan document when he participates in
the plan while the provision is in effect.
Second, it holds that the Federal Arbitration Act's ("FAA") savings
clause is inapplicable because Dorman does not assert any generally
applicable contract defenses. To the extent the district court
believed that an arbitrator would be less equipped than a court to
resolve ERISA claims or less willing to find against Plan
fiduciaries, the court was expressing precisely the type of
"judicial hostility" towards arbitration that the FAA was designed
to eliminate.
Moreover, the district court incorrectly held that the Provision is
unenforceable under Bowles v. Reade, because a plan participant
cannot agree to arbitrate a Section 502(a)(2) claim without the
plan's consent. The Plan did consent in the Plan document to
arbitrate all ERISA claims. Dorman also did not waive any rights
that belong to the Plan. When an individual participant agrees to
arbitrate, he does not give up any substantive rights that belong
to other Plan participants. No party can be compelled under the
FAA to arbitrate on a class-wide or collective basis unless it
agrees to do so by contract. The Plan and Dorman both agreed to
arbitration on an individualized basis.
Based on the foregoing, the Court reversed and remanded with
instructions for the district court to order arbitration of
individual claims limited to seeking relief for the impaired value
of the plan assets in the individual's own account resulting from
the alleged fiduciary breaches.
A full-text copy of the Court's Aug. 20, 2019 Memorandum is
available at https://is.gd/nvkgkG from Leagle.com.
CLIENT SERVICES: Lantry Appeals Order and Judgment to 8th Circuit
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Plaintiff Desirae Lantry filed an appeal from the District Court's
Order & Memorandum dated August 2, 2019, and Judgment dated August
6, 2019, entered in the lawsuit styled Desirae Lantry v. Client
Services, Inc., Case No. 4:18-cv-01694-RWS, in the U.S. District
Court for the Eastern District of Missouri - St. Louis.
As previously reported in the Class Action Reporter, the Plaintiff
filed the case under the Fair Debt Collection Practices Act.
Client Services, Inc. operates as a customer relationship
management company that offers a suite of accounts receivable
management, business processing outsourcing (BPO), and healthcare
solutions. It provides customer care, technical support, customer
acquisition, cross sell/up-sell, customer retention,
product/account activation, appointment setting/reminders, disaster
support, first notice of loss, market research, customer
satisfaction surveys, and multi-channel interaction management
services.
The appellate case is captioned as Desirae Lantry v. Client
Services, Inc., Case No. 19-2954, in the United States Court of
Appeals for the Eighth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appendix is due on October 21, 2019;
-- Brief of Appellant Desirae Lantry is due on October 21,
2019;
-- Appellee brief is due 30 days from the date the court
issues the Notice of Docket Activity filing the brief of
appellant;
-- Appellant reply brief is due 21 days from the date the
court issues the Notice of Docket Activity filing the
appellee brief.[BN]
Plaintiff - Appellant Desirae Lantry, individually, and on behalf
of all others similarly situated
Marwan Rocco Daher, Esq.
James Constantine Vlahakis, Esq.
SULAIMAN LAW GROUP
2500 S. Highland Avenue, Suite 200
Lombard, IL 60148
Telephone: (630) 575-8141
Facsimile: (630) 575-8188
E-mail: mdaher@sulaimanlaw.com
jvlahakis@sulaimanlaw.com
Defendant-Appellee Client Services, Inc., is represented by:
Patrick A. Watts, Esq.
WATTS LAW GROUP
7733 Forsyth Boulevard, Suite 600
Saint Louis, MO 63105
Telephone: (314) 669-5490
E-mail: pwatts@swattslaw.com
CLIF BAR: Court Denies Bids to Dismiss & Strike in Milan Suit
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In the case, RALPH MILAN, et al., Plaintiffs, v. CLIF BAR &
COMPANY, Defendant, Case No. 18-cv-02354-JD (N.D. Cal.), Judge
James Donato of the U.S. District Court for the Northern District
of California denied both Clif's motion to dismiss and motion to
strike.
In the putative consumer class action, Plaintiffs Milan, Sarah
Aquino and Elizabeth Arnold have sued the Defendant for Clif's Kid
ZBars and "Classic" Clif Bars. The Plaintiffs assert that Clif
markets these bars with labeling and packaging claims that convey a
health and wellness message. They say these claims are deceptive
because they are incompatible with the dangers of the excessive
sugar consumption to which the products contribute.
The Plaintiffs allege that Clif has violated California's Unfair
Competition Law, False Advertising Law, Consumer Legal Remedies
Act, and Commercial Code sections on express warranty and the
implied warranty of merchantability; as well as New York's Unfair
and Deceptive Business Practices statute, False Advertising law,
and Consolidated Laws sections on express warranty and the implied
warranty of merchantability. They seek enjoin Clif from using any
challenged labeling or marketing claim that is found to be false,
misleading, or unlawful, and order Clif to conduct a corrective
advertising campaign.
Clif has brought a motion to dismiss and a motion to strike.
Clif contends that express and conflict preemption bar the
Plaintiffs' claims. In its view, the Plaintiffs' attempt to
regulate the Clif Bar products' labels and labeling falls squarely
within 21 U.S.C. Section 343(q) because they challenge 'healthy'
statements on the label and labeling, and they seek to impose
warnings directly contrary to FDA's determination that the amount
of added sugars in a Clif Bar product is consistent with healthful
dietary patterns.
Judge Donato finds these points not well taken. To start, 21
United States Code Section 343-1(a)(4) expressly preempts any
requirement for nutrition labeling of food that is not identical to
the requirement of section 343(q) of this title. But these
provisions are of no moment because the Plaintiffs are not
challenging the nutrition information on the Clif bars' label or
labeling that is mandated by Section 343(q). None of the
statements the Plaintiffs are challenging appear in the "nutrition
facts" boxes on the bars. Nor are the Plaintiffs' claims preempted
by the FDA's final rule issued in May 2016, which set a Daily
Reference Value of 10% of total energy intake from added sugars,
and noted that some added sugars can be included as part of a
healthy dietary pattern. Taken together, Clif has failed to
identify any conflict between the Plaintiffs' claims and the Final
Rule.
As Clif acknowledges, the Plaintiffs allege that they overpaid for
the challenged products due to Clif Bar's supposed deception, but
it nevertheless argues that, if the Plaintiffs cannot plead
specifically how Clif Bar products contain excessive added sugar,
then there is no link to studies indicating a possible increased
risk of disease, the 'healthy' aura product claims were not
deceptive, and the Plaintiffs suffered no cognizable injury. This
is in fact a challenge to the plausibility of the Plaintiffs'
deception claims, not to the Plaintiffs' Article III standing. The
Judge holds that the Plaintiffs' allegations of injury are
sufficient to establish their standing to sue.
Turning to the sufficiency of pleading, the Judge finds that the
Plaintiffs have stated a claim and, given the opportunity, could
plausibly prove that a reasonable consumer would be deceived by the
Clif bars' packaging. For the implied warranty of merchantability,
the Judge finds that Clif has failed to identify any deficiency in
their pleading. For the Plaintiffs' UCL, FAL and CLRA claims under
California law, he finds that the Plaintiffs allegations are
sufficient.
Clif has separately filed a motion to strike, making two arguments:
that the Court should strike the Plaintiffs' nationwide class
allegations, and strike any class allegations arising from the
express warranty claims from the complaint. As the Plaintiffs have
pointed out, Clif's argument that applying California and New York
consumer protection laws to a nationwide class would violate due
process, rests on a misunderstanding, as the Plaintiffs have sought
a nationwide class under California law only. In any event, Clif's
arguments are not appropriate on a 12(f) motion.
Moreover, they are not proper arguments under Rule 12(f), which
permits the Court to strike material from a pleading only if it is
(1) an insufficient defense; (2) redundant; (3) immaterial; (4)
impertinent; or (5) scandalous. Clif's arguments are not even
directed towards any of those five permissible bases. Rather,
Clif's motion appears to raise premature Rule 23 arguments that are
not suited for resolution on a Rule 12(f) motion.
For these reasons, Judge Donato denied both Clif's motion to
dismiss and motion to strike. The stay that was previously
imposed, is lifted, and the Court will issue a scheduling order.
A full-text copy of the Court's Aug. 20, 2019 Order is available at
https://is.gd/0C1uWU from Leagle.com.
Ralph Milan, on behalf of himself, those similarly situated and the
general public, Sarah Aquino, on behalf of herself, those similarly
situated and the general public & Elizabeth Arnold, on behalf of
herself, those similarly situated and the general public,
Plaintiffs, represented by Paul Kenneth Joseph --
paul@pauljosephlaw.com -- The Law Office of Paul K. Joseph, PC,
Jack Fitzgerald -- jack@jackfitzgeraldlaw.com -- The Law Office of
Jack Fitzgerald, PC, Melanie Rae Persinger --
melanie@jackfitzgeraldlaw.com -- The Law Office of Jack Fitzgerald,
PC & Trevor Matthew Flynn -- trevor@jackfitzgeraldlaw.com -- Law
Office of Jack Fitzgerald, PC.
Clif Bar & Company, Defendant, represented by Christopher Gail Van
Gundy -- cvangundy@sheppardmullin.com -- Sheppard, Mullin, Richter
& Hampton LLP.
CONCENTRA INC: Dismissal of Class Claims in Pascal TCPA Suit Denied
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In the case, LAWRENCE PASCAL, Plaintiff, v. CONCENTRA, INC.,
Defendant, Case No. 19-cv-02559-JCS (N.D. Cal.), Judge Joseph C.
Spero of the U.S. District Court for the Northern District of
California granted in part and denied in part Concentra's Motion to
Dismiss and to Strike.
Pascal brings a putative class action against Defendant Concentra
under the Telephone Consumer Protection Act ("TCPA"). In the First
Amended Complaint, Pascal alleges that Concentra is a nationwide
provider of physical therapy services, that it is incorporated in
Delaware and has its principal place of business in West Addison,
Texas. Pascal alleges that Concentra sent out a text message for
the purposes of recruiting physical therapists on May 13, 2019 at
7:55 p.m. He alleges he did not consent to receive the message.
He alleges that the message was "spam" sent by Concentra using
technological equipment designed to spam consumers' cell phones.
In the FAC, Pascal asserts a claim for violation of 47 U.S.C.
Section 227 on behalf of himself and a putative class under Rule 23
of the Federal Rules of Civil Procedure of all individuals in the
United States who have received text messages from Concentra in the
last four years where the message was sent using an automatic
telephone dialing system and the recipients did not consent to
receive the text messages. In the Prayer, he seeks, inter alia,
injunctive relief, actual damages and/or statutory fines, and
reasonable attorneys' fees and costs.
In the Motion, Concentra asks the Court to dismiss Pascal's
complaint on the basis that he has not adequately alleged that
Concentra used an Automatic Telephone Dialing System ("ATDS") and
therefore, that he fails to state a claim under the TCPA. It
further contends the request for attorneys' fees should be
dismissed or stricken from the complaint because the TCPA does not
provide for an award of attorneys' fees to a prevailing party.
Finally, Concentra argues that the nationwide class definition must
be stricken because there is no jurisdiction over class members who
reside outside of California under the Supreme Court's decision in
Bristol-Myers Squibb Co. v. Superior Court.
Judge Spero finds that the Motion can be decided without a hearing
and therefore vacates the Motion hearing set for Aug. 30, 2019 at
9:30 pursuant to Civil Local Rule 7-1(b). The Case Management
Conference set for the same date will be moved from 9:30 a.m. to
2:00 p.m. on Aug. 30, 2019.
The Judge finds that the Plaintiff has sufficiently alleged use of
an ATDS and therefore declines to dismiss the Plaintiff's TCPA
claim on that basis. The FAC includes the content of the text
message the Plaintiff received, which is generic and ends with the
instruction to "text STOP to end." These factual allegations are
sufficient to raise a plausible inference that the text message
allegedly sent to the Plaintiff by Concentra was sent using an ATDS
because they go beyond merely reciting the definition of an ATDS.
Concentra's assertion that nearly identical allegations have
recently been rejected in the Northern District of California is
not supported by the cases it cites. In most of the cases
Concentra cites, few or no specific facts were alleged to support
the allegation that an ATDS was used; in some, facts were alleged
that made use of an ATDS implausible.
It is undisputed that attorneys' fees are unavailable under the
TCPA and the Plaintiff has pointed to no source of authority that
would allow him to recover attorneys' fees in the action. The
Judge finds it is improper to strike a claim for damages under Rule
12(f) on the basis that such damages are unavailable.
The Defendant contends that to the extent the Plaintiff's claim
survives, the class allegations should be dismissed to the extent
he seeks to include in the class individuals who are not California
residents. In particular, it argues that the Court does not have
personal jurisdiction over the claims of non-California residents,
citing Bristol-Myers.
The Judge disagrees. He explains that in Bristol-Myers, the
Supreme Court concluded that a California state court lacked
personal jurisdiction over the defendant corporation with respect
to claims asserted against it by nonresidents in a mass action tort
suit, reversing the holding of the California Supreme Court that
there was specific jurisdiction over the claims of the nonresident
plaintiffs. There, more than 600 plaintiffs, the majority of whom
were not California residents, filed claims in California state
court based on injuries allegedly caused by the prescription drug
Plavix, sold by Bristol-Myers Squibb Company ("BMS"). The court in
Sloan v. Gen. Motors LLC concluded that the holding in
Bristol-Myers does not apply to cases pending in federal court
where the plaintiff's claims are based on a federal statute.
The Judge finds the reasoning in Sloan to be persuasive and
therefore concludes that Bristol-Myers does not apply in the case
because the Plaintiff asserts his claim in a federal court and
under federal law. He further concludes that Bristol-Myers does
not apply to class actions under Rule 23 for the reasons set forth
in Allen v. ConAgra Foods, Inc. In that case, the court
acknowledged that there is a split of authority as to whether
Bristol-Myers applies to class actions, but found more persuasive
the decisions of courts that have found that Bristol-Myers does not
apply to class actions.
The Judge finds the reasoning of Allen to be persuasive.
Therefore, because the Plaintiff seeks to assert his claim on
behalf of a Rule 23 class, Bristol-Myers does not apply in the case
for this reason as well. Accordingly, the Judge declines to
dismiss the class allegations to the extent the class definition
includes non-California members.
For the reasons set forth, Judge Spero granted the Motion as to the
Plaintiff's prayer for attorneys' fees, which is dismissed under
Rule 12(b)(6). He denied the Motion in all other respects.
A full-text copy of the Court's Aug. 20, 2019 Order is available at
https://is.gd/1M89rD from Leagle.com.
Lawrence Pascal, individually and on behalf of all others similarly
situated, Plaintiff, represented by Mark Louis Javitch --
mark@javitchlawoffice.com -- Javitch Law Office.
Concentra, Inc., a Delaware corporation, Defendant, represented by
Esteban Morales Fabila -- emorales@mintz.com -- Mintz Levin Cohn
Ferris Glovsky and Popeo PC.
CORINDUS VASCULAR: Sabatini Sues Over Exchange Act Breach
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ERIC SABATINI, Individually and On Behalf of All Others Similarly
Situated, Plaintiff, v. CORINDUS VASCULAR ROBOTICS, INC., JEFFREY
C. LIGHTCAP, MARK J. TOLAND, JEFFREY G. GOLD, CAMPBELL ROGERS,
LOUIS A. CANNON, NATHAN R. HARRINGTON, JAMES TOBIN, and DOUGLAS L.
BRAUNSTEIN, Defendants, Case No. 1:19-cv-01752-UNA (D. Del., Sept.
18, 2019) is an action stemming from a proposed transaction
announced on August 8, 2019, pursuant to which Corindus Vascular
Robotics, Inc. will be acquired by Siemens Medical Solutions UA,
Inc. ("Parent") and Corpus Merger, Inc.
On August 7, 2019, Corindus's Board of Directors caused the Company
to enter into an agreement and plan of merger with Siemens.
Pursuant to the terms of the Merger Agreement, Corindus's
stockholders will receive $4.28 in cash for each share of Corindus
common stock they own. On August 30, 2019, defendants filed a proxy
statement with the United States Securities and Exchange Commission
in connection with the Proposed Transaction. The Proxy Statement
omits material information with respect to the Proposed
Transaction, which renders the Proxy Statement false and
misleading. Accordingly, plaintiff alleges herein that defendants
violated Sections 14(a) and 20(a) of the Securities Exchange Act of
1934 in connection with the Proxy Statement.
First, the Proxy Statement omits material information regarding the
Company's financial projections. The Proxy Statement fails to
disclose: (i) projected free cash flow and all underlying line
items; (ii) all line items used to calculate EBITDA; and (iii) a
reconciliation of all non-GAAP to GAAP metrics. Second, the Proxy
Statement omits material information regarding the analyses
performed by the Company's financial advisor in connection with the
Proposed Transaction, Citigroup Global Markets Inc. With respect to
Citi's Discounted Cash Flow Analysis, the Proxy Statement fails to
disclose: (i) the estimates of the unlevered free cash flows that
Corindus is expected to generate during the period from July 1,
2019 through December 31, 2024 and all underlying line items; (ii)
the range of terminal values for Corindus; (iii) the individual
inputs and assumptions underlying the discount rates ranging from
10.9% to 13.0% and the perpetuity growth rates ranging from 5.0% to
6.0%; (iv) the benefits estimated to be realized from Corindus's
net operating losses; and (v) the diluted share counts of
Corindus.
With respect to Citi's Equity Research Analyst Price Targets
analysis, the Proxy Statement fails to disclose: (i) the price
targets observed by Citi in the analysis; and (ii) the sources
thereof. With respect to Citi's Implied Premia Paid, the Proxy
Statement fails to disclose: (i) the transactions observed by Citi
in the analysis; and (ii) the premiums paid in the transactions.
Third, the Proxy Statement omits material information regarding
potential conflicts of interest of Citi. The Proxy Statement fails
to disclose whether Citi has provided past services to the Company
or its affiliates, as well as the timing and nature of such
services and the amount of compensation Citi received for providing
the services. The omission of the above-referenced material
information renders the Proxy Statement false and misleading,
including, inter alia, the following sections of the Proxy
Statement: (i) Background of the Merger; (ii) Recommendation of the
Board and Reasons for the Merger; (iii) Opinion of Citigroup Global
Markets Inc.; and (iv) Financial Projections, says the complaint.
Plaintiff is the owner of Corindus common stock.
Corindus is a global technology leader in robotic-assisted vascular
interventions.[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
COSTCO WHOLESALE: Bid to Amend Reply to Pearlstone Partly Okayed
----------------------------------------------------------------
In the case, SCOTT PEARLSTONE, individually and on behalf of
similarly situated individuals, Plaintiff(s), v. COSTCO WHOLESALE
CORPORATION, Defendant(s), Case No. 4:18CV630 SRC (E.D. Mo.), Judge
Stephen R. Clark of the U.S. District Court for the Eastern
District of Missouri, Eastern Division, granted in part and denied
in part Costco's Motion for Leave to File First Amended Answer.
Pearlstone filed a class action complaint in the Court on April 19,
2018, alleging that Defendant Costco failed to honor a "Risk-Free
100% Satisfaction Guarantee" to provide a full refund of membership
fees to executive members who cancel their membership. Pearlstone
alleges claims of breach of contract, unjust enrichment, and
violation of the Missouri Merchandising Practices Act ("MMPA").
Costco filed a motion to dismiss Pearlstone's complaint arguing
that (1) Pearlstone failed to state a breach of contract claim as a
matter of law, (2) Pearlstone's unjust enrichment claim should be
dismissed because it fails to properly plead an essential element
of the claim and is barred by the economic loss doctrine, and (3)
Pearlstone failed to establish any deception or unfair practice
that would give rise to a claim under the MMPA. The Court denied
the motion to dismiss and, on March 21, 2019, Costco filed an
answer. On July 1, 2019, Costco filed the pending motion for leave
to file first amended answer.
In its motion for leave to amend, Costco sought to amend its
answers to paragraphs 11 and 12 of Pearlstone's Complaint and its
eighth affirmative defense, and to add five new affirmative
defenses. Pearlstone objected to the amendment as it relates to
Costco's attempt to pursue defenses based on lack of personal
jurisdiction or improper venue.
Judge Clark held that allowing Costco to amend its answer to assert
defenses of lack of personal jurisdiction and improper venue would
be futile. A party waives the defenses of lack of personal
jurisdiction and improper venue when it omits them from a motion
raised under Federal Rule of Civil Procedure 12(b)(6) or fails to
include it in a responsive pleading. Costco consented to the
jurisdiction of the Court and waived any objections it had to
personal jurisdiction and venue by failing to raise the objections
in its motion to dismiss. The judge accordingly denied Costco's
motion for leave to amend as to paragraphs 11 and 12 and
affirmative defenses 26 and 27.
The Judge permitted Costco to make the remaining proposed
amendments to its answer. Rule 12(h)-waiver does not apply to
these defenses, and the Rule 15(a)(2) freely-give-leave standard
applies. Additionally, Pearlstone did not object to the remaining
proposed amendments in his opposition brief or during oral
argument. Costco sought to amend affirmative defense eight to add
the applicable Missouri statutes, and to state the limitations
began to run as of the date of cancellation of the particular
membership at issue. It also sought to add the following defenses:
(25) the Plaintiff's and the putative class members' lack of
standing to pursue the claim and/or the doctrines of res judicata
or collateral estoppel bar the claims; (28) accord and
satisfaction, waiver, settlement, and/or release bar the claims;
and (29) the Plaintiff is not a member of the putative class or is
otherwise unsuitable to serve as class representative.
Costco sought leave to amend within the time period allowed by the
Case Management Order, so there has not been undue delay and there
is no suggestion Costco seeks leave to amend in bad faith or for a
dilatory motive. Pearlstone did not show he faces undue prejudice
or that amendment would be futile as to these defenses. Therefore,
the Judge granted Costco leave to amend its answer as to
affirmative defenses 8, 25, 28, and 29.
Based on the foregoing, Judge Clark granted in part and denied in
part Costco's Motion for Leave.
A full-text copy of the Court's Aug. 23, 2019 Memorandum and Order
is available at https://is.gd/07kAi0 from Leagle.com.
Scott Pearlstone, individually and on behalf of similarly situated
individuals, Plaintiff, represented by Lanny H. Darr --
ldarr@darrfirm.com -- DARR FIRM & Paul T. Geske, MCGUIRE LAW, PC.
Costco Wholesale Corporation, Defendant, represented by Booker T.
Shaw -- bshaw@thompsoncoburn.com -- THOMPSON COBURN, LLP & Kristen
E. Sanocki -- ksanocki@thompsoncoburn.com -- THOMPSON COBURN, LLP.
COX COMMUNICATIONS: 9th Cir. Affirms Summ. Judgment in Taylor Suit
------------------------------------------------------------------
In the case, BILL TAYLOR, Plaintiff-Appellant, v. COX
COMMUNICATIONS CALIFORNIA, LLC, Erroneously Sued As: CoxCom, Inc.,
and CoxCom, LLC; COX COMMUNICATIONS, INC.; DOES, 1 through 50
inclusive, Defendants-Appellees, Case (9th Cir.), the U.S. Court of
Appeals for the Ninth Circuit affirmed the district court's grant
of summary judgment in favor of Cox.
Plaintiff-Appellant Taylor, represents a certified class of field
technicians employed by Defendant-Appellee Cox, in the diversity
wage-and-hour class action. Cox field technicians travel in
company vehicles to customer residences to install and repair Cox's
television and internet services. Some Cox field technicians
participate in an employee program known as Home Start, which
permits them to keep their company vehicles at home during
non-working hours and commute directly to their field assignments
from home, rather than from the company depot.
According to Taylor, Cox violated California law by not
compensating its Home Start field technicians for their time spent
commuting home from their last field assignments in company
vehicles. The district court granted summary judgment in favor of
Cox, which Taylor now appeals.
Taylor alleges that the time Cox's Home Start field technicians
spend commuting home in their company vehicles qualifies as
compensable "hours worked" under California law. To prevail on
this claim, Taylor must demonstrate either that, during this
commute time, (1) the field technicians were "subject to the
control" of Cox, or (2) they were "suffered or permitted to work."
The district court found that Taylor was unable to present a
genuine issue of material fact as to either claim.
The Ninth Circuit agrees. First, Taylor fails to present a genuine
issue of material fact as to whether Cox's Home Start field
technicians were "subject to the control" of Cox during their
commutes home. Second, Taylor also has not shown that the district
court erred in concluding that, because Home Start participants do
not engage in any additional work-related tasks and the
transportation of tools and equipment does not add any time to
their commutes, no reasonable juror could find that the class
members here were suffered or permitted to work during their
commutes home.
For these reasons, the Nonth Circuit affirmed the district court's
grant of summary judgment.
A full-text copy of the Court's Sept. 5, 2019 Memmorandum is
available at https://is.gd/P18Roa from Leagle.com.
CREDIT CORP: Demsko Files Class Suit under FDCPA in Florida
-----------------------------------------------------------
A class action lawsuit has been filed against Credit Corp
Solutions, Inc. The case is styled as Jessica Demsko, individually
and on behalf of all others similarly situated, Plaintiff v. Credit
Corp Solutions, Inc. doing business as: Tasman Credit, Defendant,
Case No. 4:19-cv-02637 (E.D. Mo., Sept. 25, 2019).
The docket of the case states the nature of suit as Consumer Credit
filed pursuant to the Fair Debt Collection Act.
Credit Corp Solutions Inc is a debt collection agency.[BN]
The Plaintiff is represented by:
James Constantine Vlahakis, Esq.
SULAIMAN LAW GROUP, LTD.
2500 S. Highland Ave., Suite 200
Lombard, IL 60148
Tel: (630) 575-8141
Email: jvlahakis@sulaimanlaw.com
CRST EXPEDITED: Underpays Drivers, Broome Suit Alleges
------------------------------------------------------
BARRY BROOME, individually and on behalf of all others similarly
situated, Plaintiff v. CRST EXPEDITED, INC.; CRST INTERNATIONAL,
INC.; CRST MALONE, INC.; and DOES 1 through 10, inclusive,
Defendants, Case No. 2:19-cv-07664 (C.D. Cal., Sept. 4, 2019) is an
action against the Defendants for unpaid regular hours, overtime
hours, minimum wages, wages for missed meal and rest periods.
The Plaintiff Broome was employed by the Defendant as driver.
CRST International, Inc. offers transportation services focusing on
longer length hauls and including short-haul regional, air cargo,
shipping, and dedicated fleets. [BN]
The Plaintiff is represented by:
Joshua H. Haffner, Esq.
Graham G. Lambert, Esq.
HAFFNER LAW PC
445 South Figueroa Street, Suite 2625
Los Angeles, CA 90071
Telephone: (213) 514-5681
Facsimile: (213) 514-5682
E-mail: jhh@haffnerlawyers.com
gl@haffnerlawyers.com
CUBICLE ENTERPRISES: Traynor Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Cubicle Enterprises
LLC. The case is styled as Yaseen Traynor, on behalf of himself and
all others similarly situated, Plaintiff v. Cubicle Enterprises
LLC, Defendant, Case No. 1:19-cv-08959-AJN (S.D. N.Y., Sept. 26,
2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Cubicle Enterprises LLC operates TheCubicle.us, which is a
USA-based online specialty cube store.[BN]
The Plaintiff is represented by:
Russel Craig Weinrib, Esq.
Stein Saks PLLC
285 Passaic St., Suite 5
Hakensack, NJ 07601
Phone: (201) 282-6500
Email: rweinrib@steinsakslegal.com
DURAVENT: Ling Suit Removed to E.D. California
----------------------------------------------
The case captioned JULIAN LING, individually, and on behalf of
other members of the general public similarly situated and on
behalf of other aggrieved employees pursuant to the California
Private Attorneys General Act; Plaintiff, v. DURAVENT, an unknown
business entity; DURAVENT, INC., an unknown business entity; M&M
DURAVENT INC., an unknown business entity; and DOES 1 through 100
inclusive, Defendants, Case No. FCS053402 was removed from the
Superior Court of the State of California, County of Solano to the
United States District Court for the Eastern District of California
on Sept. 19, 2019, and assigned Case No. 2:19-cv-01903-MCE-AC.
The Complaint asserts the following cause of action: (1) unpaid
overtime, (2) unpaid meal period premiums, (3) unpaid rest period
premiums, (4) unpaid minimum wages, (5) final wages not timely
paid, (6) wages not timely paid during employment, (7)
non-compliant wage statements, (8) failure to requisite payroll
records, (9) unreimbursed business expenses, (10) violation of the
California business & Professions Code, (11) violation of the
California Labor code Private attorneys General Act of 2004.[BN]
The Defendants are represented by:
Robert L. Rosenthal, Esq.
Ryan A. Ellis, Esq.
HOWARD & HOWARD ATTORNEYS PLLC
2049 Century Park East, Suite 330
Los Angeles, CA 90067
Phone: (424) 303-7700
Facsimile: (424) 274-3202
Email: rk@h2law.com
re@h2law.com
E&M ICE CREAM: Illescas Dutan Sues Over Unpaid Compensations
------------------------------------------------------------
MANUEL ILLESCAS DUTAN, individually and on behalf of others
similarly situated, Plaintiff v. E & M ICE CREAM INC. (D/B/A E & M
ICE CREAM), MIZZLE ICE CREAM, INC. (D/B/A MIZZLE ICE CREAM, INC.),
MARTIN KELLY, and MANUEL ORTIZ, Defendants, Case No. 1:19-cv-08701
(S.D. N.Y., Sept. 19, 2019) seeks unpaid minimum and overtime wages
pursuant to the Fair Labor Standards Act of 1938, and for
violations of the N.Y. Labor Law, including applicable liquidated
damages, interest, attorneys' fees and costs.
Plaintiff worked for Defendants in excess of 40 hours per week,
without appropriate minimum wage and overtime compensation for the
hours that he worked, notes the complaint. The Defendants also
failed to maintain accurate recordkeeping of the hours worked and
failed to pay Plaintiff appropriately for any hours worked, either
at the straight rate of pay or for any additional overtime premium;
and maintained a policy and practice of requiring Plaintiff and
other employees to work in excess of 40 hours per week without
providing the minimum wage and overtime compensation required by
federal and state law and regulations, says the complaint.
Plaintiff Illescas was employed as a truck driver's assistant at
the frozen foods distributors located at 701 Zerega Ave Bronx, NY
10473 and 41 Whipple Street, Brooklyn, New York, 11206.
Defendants own, operate, or control a frozen foods distributor,
located at 701 Zerega Ave Bronx, NY 10473 under the name "E & M Ice
Cream" and at 41 Whipple Street, Brooklyn, New York, 11206 under
the name "Mizzle Ice Cream, Inc".[BN]
The Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Phone: (212) 317-1200
Facsimile: (212) 317-1620
EEG INC: McKinney Seeks Initial Class Certification Under Damasco
-----------------------------------------------------------------
Pakita McKinney moves the Court to certify the class described in
the complaint of the lawsuit captioned PAKITA MCKINNEY,
Individually and on Behalf of All Others Similarly Situated v. EEG,
INC. d/b/a EMPIRE BEAUTY SCHOOL and AR RESOURCES, INC., Case No.
2:19-cv-01358-NJ (E.D. Wisc.), and further asks that the Court both
stay the motion for class certification and to grant the Plaintiff
(and the Defendants) relief from the Local Rules setting automatic
briefing schedules and requiring briefs and supporting material to
be filed with the Motion.
Dicta in the Supreme Court's decision in Campbell-Ewald Co. v.
Gomez, left open the possibility that a defendant facing a class
action complaint could moot a class representative's case by
depositing funds equal to or in excess of the maximum value of the
plaintiff's individual claim with the court and having the court
enter judgment in the plaintiff's favor prior to the filing of a
class certification motion, the Plaintiff asserts, citing
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016).
To avoid the risk of a defendant mooting a putative class
representative's individual stake in the litigation, the Seventh
Circuit instructed plaintiffs to file a certification motion with
the complaint, along with a motion to stay briefing on the
certification motion. Damasco v. Clearwire Corp., 662 F.3d 891,
896 (7th Cir. 2011), overruled on other grounds, Chapman v. First
Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of
that motion [for class certification] protects a putative class
from attempts to buy off the named plaintiffs.").
While the Seventh Circuit has held that the specific procedure
described in Campbell-Ewald cannot force the individual settlement
of a class representative's claims, the same decision cautions that
other methods may prevent a plaintiff from representing a class,
the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco,
Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June
20, 2017). The Plaintiff asserts that one defendant has attempted
a similar tactic by sending a certified check to the proposed class
representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D.
Wis.); see also Severns v. Eastern Account Systems of Connecticut,
Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis.
Feb. 24, 2016).
The Plaintiff is obligated to move for class certification to
protect the interests of the putative class, the Plaintiff avers.
As the Motion to certify a class is a placeholder motion as
described in Damasco, the parties and the Court should not be
burdened with unnecessary paperwork and the resulting expense when
short motion to certify and stay should suffice until an amended
motion is filed, the Plaintiff contends.
The Plaintiff also asks to be appointed as class representative,
and for the appointment of Ademi & O'Reilly, LLP, as class
counsel.[CC]
The Plaintiff is represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
EXPERIAN INFORMATION: Traynor Files ADA Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Experian Information
Solutions, Inc. The case is styled as Yaseen Traynor, on behalf of
himself and all others similarly situated, Plaintiff v. Experian
Information Solutions, Inc., Defendant, Case No. 1:19-cv-08945
(S.D. N.Y., Sept. 26, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Experian Information Solutions, Inc., an information services
company, provides information, analytical, and marketing services
to organizations and consumers to manage risk and reward of
commercial and financial decisions.[BN]
The Plaintiff is represented by:
Russel Craig Weinrib, Esq.
Stein Saks PLLC
285 Passaic St., Suite 5
Hakensack, NJ 07601
Phone: (201) 282-6500
Email: rweinrib@steinsakslegal.com
EXTRA SPACE: Arbitration Compelled in Ionescu Lawsuit
-----------------------------------------------------
Judge Yvonne Gonzalez Rogers of the U.S. District Court for the
Northern District of California granted the Defendant's motion to
compel arbitration in the case, ALEXANDRU IONESCU, ET AL.,
Plaintiffs, v. EXTRA SPACE STORAGE INC., Defendant, Case No.
19-cv-02226-YGR (N.D. Cal.).
Plaintiffs Ionescu, Lenay Johnson, and Lamar Mosley each rented a
storage unit from Extra Space in California. They brought the
putative class-action law suit against Defendant Extra Space for
false advertising in violation of California Business and
Professions Code Section 17500 (Count I), unfair competition in
violation of Section 17200 (Count II), and violations of the
California Consumers Legal Remedies Act ("CLRA") (Count III).
Specifically, the plaintiffs allege that Extra Space engaged in a
deceptive bait-and-switch scheme in which it lures consumers into
leasing storage units by advertising competitive rental rates,
while hiding the fact that it will hike up those rental rates
shortly after consumers have signed leases.
The Amended Class Action Complaint defines the putative class as
all persons residing in the United States who signed leases for
storage units in California from Extra Space Storage from Jan. 28,
2015 to the present.
The Defendant removed the case to the Court on April 24, 2018.
Defendant Extra Space sought to compel the Plaintiffs into
arbitration based on the rental agreements each Plaintiff signed.
The Rental Agreements each contained an "Agreement to Arbitrate"
provision in which the Plaintiffs are designated as "Customers,"
and Extra Space as the "Operator."
An oral argument from the counsel was held on July 9, 2019.
The Plaintiffs did not dispute that the Federal Arbitration Act
(FAA) applies. Instead, they contended that the Arbitration
Provision, and therefore the Agreement to Arbitrate, are invalid
and unenforceable under California law because the provision
precludes consumers from bringing claims for public injunctive
relief in any forum, including arbitration, in violation of the
California Supreme Court's decision in McGill v. Citibank, N.A.
Specifically, they contended that the prohibition of the Plaintiffs
proceeding in arbitration on any sort of "representative" basis
that does not contain a carveout for actions seeking injunctive
relief on behalf of the general public as contemplated by the UCL,
CLRA, and FAL" violates the McGill v. Citibank, N.A. Rule.
The Defendant replied that the agreement does not fall within the
McGill Rule because unlike the arbitration provision at issue in
McGill, the Provision here does not preclude the arbitrator from
issuing any relief beyond the individual claimant at issue in the
case.
Judge Rogers agrees. She held that the California Supreme Court in
McGill did not independently analyze the arbitration provision and
instead proceeded based on the parties' shared view that the
arbitration provision purports to preclude McGill from seeking
public injunctive relief in arbitration, in court, or in any forum.
Nonetheless, the language indicating that the arbitrator will not
award relief for or against anyone who is not a party has been
found to violate the McGill rule.
As McGill itself makes clear, an action seeking public injunctive
relief is not a "representative action." Therefore, the presence
of a class action waiver, like the one present in the instant case,
does not, without more, violate the McGill Rule. Moreover, the
Arbitration Provision specifically contemplates claims for
violation of California Business and Professions Code Section
17200, the same claim that the Plaintiffs assert forms the basis
for their claim for public injunctive relief.
For the foregoing reasons, Judge Rogers granted the Defendant's
motion to compel arbitration.
A full-text copy of the Court's Aug. 23, 2019 Order is available at
https://is.gd/OaFBZG from Leagle.com.
Alexandru Ionescu, Lenay Johnson & Lamar Mosley, individually and
on behalf of themselves and all other similarly situated,
Plaintiffs, represented by Sabita J. Soneji -- ssoneji@tzlegal.com
-- Tycko & Zavareei LLP & Tanya Susan Koshy, Tycko & Zavareei LLP.
Extra Space Storage Inc., Defendant, represented by Quyen Le Ta ,
Boies Schiller Flexner LLP, James Allen Unger -- junger@bsfllp.com
-- Boies Schiller Flexner LLP & Kathleen R. Hartnett --
khartnett@bsfllp.com -- Boies Schiller Flexner LLP.
FAB COMMERCE: Traynor Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Fab Commerce &
Design, Inc. The case is styled as Yaseen Traynor, on behalf of
himself and all others similarly situated, Plaintiff v. Fab
Commerce & Design, Inc., Defendant, Case No. 1:19-cv-08946 (S.D.
N.Y., Sept. 26, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Fab is an e-commerce company founded in 2010. Once estimated at a
worth of over $1 billion, in March 2015, the digital and ecommerce
assets of Fab were acquired by PCH International for an undisclosed
sum and has since been relaunched as a new entity with no
interaction from the original founders.[BN]
The Plaintiff is represented by:
Russel Craig Weinrib, Esq.
Stein Saks PLLC
285 Passaic St., Suite 5
Hakensack, NJ 07601
Phone: (201) 282-6500
Email: rweinrib@steinsakslegal.com
FARFETCH LIMITED: 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 New York on behalf of all investors that purchased
Farfetch Limited (NYSE: FTCH) securities pursuant to and/or
traceable to the company's September 2018 initial public offering
("IPO"). Investors have until November 18, 2019 to apply to the
Court to be appointed as lead plaintiff in the lawsuit.
The complaint, filed September 17, 2019, alleges that throughout
the Class Period, defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the company's business, operations, and
prospects. Specifically, defendants failed to disclose to
investors: (1) that large scale online wholesale was reasonably
likely to lead to pricing volatility and heavy promotions of luxury
goods; (2) that the company's core business was vulnerable to such
pricing pressures; (3) that the company would aggressively pursue
acquisitions to remain profitable; and (4) that, as a result of the
foregoing, defendants positive statements about the company's
business, operations, and prospects, were materially misleading
and/or lacked a reasonable basis.
On or about September 24, 2018, Farfetch held its IPO in which it
sold approximately 50 million shares of Class A common stock at a
price of $20.00 per share.
On August 8, 2019, Farfetch reported a larger-than-expected loss of
$89.6 million for second quarter 2019. The company also announced a
$675 million acquisition of New Guards Group and that its Chief
Operating Officer had resigned.
On this news, the company's share price fell $8.12, or over 44%, to
close at $10.13 per share on August 9, 2019. By the date this
complaint was filed, the company's stock was trading as low as
$10.20 per share, a nearly 50% decline from the $20 IPO price.
If you purchased Farfetch securities pursuant or traceable to the
IPO, 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 Farfetch lawsuit, please go
to https://bespc.com/ftch. On the web: http://www.bespc.com/
Contacts:
Brandon Walker, Esq.
Melissa Fortunato, Esq.
Bragar Eagel & Squire, P.C.
Tel: (212) 355-4648
Website: www.bespc.com
E-mail: investigations@bespc.com
fortunato@bespc.com
walker@bespc.com [GN]
FARFETCH LIMITED: Kessler Topaz Files Class Action Lawsuit
----------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP, announces that
the firm has filed a securities fraud class action lawsuit against
Farfetch Limited (FTCH) on behalf of investors who purchased or
acquired Farfetch Class A ordinary shares between September 21,
2018, and August 8, 2019, both dates inclusive (the "Class
Period"), including those who purchased or otherwise acquired
Farfetch Class A ordinary shares pursuant and/or traceable to the
registration statement and prospectus (the "Registration
Statement") issued in connection with Farfetch's September 21, 2018
initial public offering (the "IPO"). This action, captioned City of
Coral Springs Police Officers' Retirement Plan v. Farfetch Limited,
et al., Case No. 1:19-cv-08720 (the "Coral Springs Action") was
filed in the United States District Court for the Southern District
of New York. The Coral Springs Action asserts additional and
expanded claims compared to those pled in the first-filed
securities fraud lawsuit, Omdahl v. Farfetch Limited, et al., Case
No. 1:19-cv-08657, which was also filed in the United States
District Court for the Southern District of New York.
The filing of the Coral Springs Action does not change the November
18, 2019 deadline for investors who purchased or acquired Farfetch
Class A 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/farfetch-limited
Farfetch is the leading technology platform for the global luxury
fashion industry. On September 21, 2018, the Defendants conducted
the IPO pursuant to the Registration Statement, offering over 44
million Class A ordinary shares at $20.00 per share. The Defendants
made various statements in the Registration Statement and
throughout the Class Period touting the growth potential and
competitive advantages of Farfetch's business model.
On August 8, 2019, after the market closed, Farfetch issued a press
release disclosing its second quarter 2019 financial results.
Farfetch reported a loss of $89.6 million after taxes, compared to
a loss of $17.7 million the year prior. Additionally, after
previously predicting that its platform gross merchandise value
("Platform GMV") metric would grow 41% year-over-year, Farfetch
announced that it now expected only 30% to 35% year-over-year
Platform GMV growth for third quarter 2019, and only 37% to 40%
year-over-year Platform GMV growth for full year 2019.
Additionally, Farfetch announced that Chief Operating Officer,
Andrew Robb, would be stepping down from his position after a
six-month transitional period. During Farfetch's second quarter
2019 earnings call with investors and analysts, Farfetch blamed the
disappointing results on competitive pressures from increased
promotional pricing and discounting of luxury goods by competitors,
despite previous touting of "barriers to entry" and Farfetch's
allegedly "superior" platform.
Following this news, the price of Farfetch Class A ordinary shares
declined $8.12 per share, or more than 44%, from a close of $18.25
per share on August 8, 2019, to close at $10.13 per share on August
9, 2019.
The complaint alleges that, in the Registration Statement and
throughout the Class Period, Defendants failed to disclose material
adverse facts about Farfetch's operations and prospects.
Specifically, Defendants failed to disclose that: (1) Farfetch
would refuse to reduce merchandise prices to match the rest of the
market; (2) this sub-optimal pricing strategy rendered Farfetch's
platform highly susceptible to underpricing by competitors, despite
what the Defendants touted as a "superior" platform; and (3) as a
result, Farfetch's past and projected Platform GMV growth rates
were foreseeably unsustainable. As a result of the foregoing,
Defendants' statements about Farfetch's business strategy and
growth prospects lacked a reasonable basis at all relevant times.
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
Farfetch investors may, no later than November 18, 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]
FLASHOVER MAINTENANCE: Hall Sues Over Unpaid Overtime Wages
-----------------------------------------------------------
DAVID HALL and ROBERT MOYER, for themselves and all others
similarly situated, Plaintiffs v. FLASHOVER MAINTENANCE, LLC and
BRIAN KNOWLTON, Defendants, Case No. 1:19-cv-02181 (N.D. Ohio,
Sept. 19, 2019) is an action brought pursuant to the Fair Labor
Standards Act, and Ohio Minimum Fair Wage Standards Act.
At the time Plaintiff Hall began his employment with Defendants, he
was paid on an hourly basis and worked approximately 65 to 70 hours
per workweek. At the time Plaintiff Moyer began his employment with
Defendants, he was paid on an hourly basis and worked between 50
and 75 hours per workweek.
The Defendants classified Plaintiffs as employees exempt from
overtime laws, as Defendants never paid them a premium rate for
hours they worked above 40 in a workweek, notes the complaint. The
Defendants did not provide Plaintiffs with pay or premium overtime
payments for hours worked in excess of 40 per workweek, the
complaint says.
Plaintiffs began working with Defendants in the summer of 2016 and
in September 2017.
Flashover is a company that provides lawncare, hardscaping, and
snow removal services, for both residential and commercial
properties.[BN]
The Plaintiff is represented by:
Bradley L. Gibson, Esq.
Brian G. Greivenkamp, Esq.
GIBSON LAW, LLC
9200 Montgomery Rd., Suite 11A
Cincinnati, OH 45242
Phone: (513) 834-8254
Email: brad@gibsonemploymentlaw.com
brian@gibsonemploymentlaw.com
FONTANA & FONTANA: Bardales May File Class Cert Bid Until Nov. 7
----------------------------------------------------------------
The Hon. Wendy B. Vitter granted the Joint Motion to Continue Class
Certification Deadline in the lawsuit styled CORNELIA BARDALES v.
FONTANA & FONTANA, LLC, ET AL., Case No. 2:19-cv-00340-WBV-DMD
(E.D. La.).
Judge Vitter ruled that Plaintiffs Cornelia Bardales and Donald
Russell shall have until November 7, 2019, to move for class
certification under Rule 23(c)(1) of the Federal Rules of Civil
Procedure.[CC]
FORD MOTOR: Expedited Review of Persad's Bid to Strike Granted
--------------------------------------------------------------
In the case, SURESH PERSAD, et al., Plaintiffs, v. FORD MOTOR
COMPANY, Defendant, Case No. 2:17-cv-12599 (E.D. Mich.), Judge
Terrence G. Berg of the U.S. District Court for the Eastern
District of Michigan, Southern Division, granted the Plaintiffs'
motion for expedited review of their motion to strike but denieed
their motion to strike Exhibits 30 through 33 to the Defendant's
response brief.
Plaintiffs Persad, Daniel G. Wright and Robert S. Drummond filed
the potential class action against the Defendant on behalf of all
individuals in the United States who purchased, leased, or owned a
2016 or 2017 Ford Explorer. They contend that the vehicles include
defective exhaust, heating, ventilation, and air conditioning
systems that permit exhaust odors and gases, including carbon
monoxide, to reach the passenger compartment while the vehicles are
in use. The Amended Complaint asserts claims under the
Magnuson-Moss Warranty Act, as well as various claims under the
laws of multiple states.
The case is now before the Court on the Plaintiffs' motions to
strike several exhibits to the Defendants' brief in opposition to
the motion for class certification, and for expedited consideration
of that motion. The Plaintiffs filed a motion seeking to certify a
class of individuals who purchased, leased, or owned a 2016 or 2017
Ford Explorer. The Court granted both parties permission to file
lengthier briefs in support of, and in opposition to, the motion
for class certification. Accordingly, Ford's page-limit for its
response to the motion for class certification was extended to 35
pages.
Though Ford's brief complies with the 35-page maximum, the
Plaintiffs contend that Ford, without the Court's authorization,
circumvented the page-limit by including additional briefing in the
form of appendices to its response brief. These appendices --
labelled Exhibits 30 through 33 -- comprise charts summarizing case
law from various federal and state courts that the Defendant
considers relevant to the claims for implied warranty, fraudulent
concealment, unjust enrichment, and express warranty, which are
asserted under the laws of multiple states.
The Plaintiff points out that the Court's Practice Guidelines
require that all briefs before it "contain citation to appropriate
authorities within the text of the brief."
Judge Berg finds that the appendices at issue provide a reference
for the Court to relevant legal authorities without engaging in
argumentation or one-sided analysis. Hence, they will not be
stricken.
The Plaintiffs pray that, should the Court fails to grant their
motion to strike, they be permitted (a) two additional weeks to
prepare a sur-reply responding to the Defendant's appendices and
(b) a 48-page enlargement of the page-limit for their reply so that
they may "clearly and effectively analyze and respond to each of
the several hundred cases cited in the Appendices."
The Judge granted the first request. The Plaintiffs will have
until Sept. 10, 2019 to file their reply in further support of the
motion for class certification. He denied the second request. He
holds that there is no need to "clearly and effectively analyze and
respond" to a list of cases. If the Plaintiffs wish to attach
appendices to their reply that contain tables of relevant
authorities, they may do so. But if those appendices include legal
argumentation, persuasive analysis, or advocacy, they will be
stricken.
The Judge is giving the parties leeway in the complex class
litigation to present reference materials by way of summary
exhibits. If the latitude granted by his Order is abused in the
future by the counsel submitting exhibits that cross the line from
instructive reference tools to legal arguments and advocacy, such
exhibits will be swiftly stricken.
For these reasons, Judge Berg granted the Plaintiffs' motion for
expedited consideration of their motion to strike, but denied the
Plaintiffs' motion to strike Exhibits 30 through 33 to the
Defendant's brief in opposition to the motion for class
certification. The Plaintiffs' reply is due Sept. 10, 2019.
A full-text copy of the Court's Aug. 20, 2019 Order is available at
https://is.gd/bZILwk from Leagle.com.
Suresh Persad, Daniel G Wright & Robert S Drummond, Plaintiffs,
represented by Ethan Barlieb -- ebarlieb@ktmc.com -- Kessler Topaz
Meltzer & Check, LLP, James A. Maro, Kessler Topaz Meltzer & Check,
LLP, James P. McEvilly -- jmcevilly@ktmc.com -- Kessler Topaz
Meltzer & Check, LLP, Joseph H. Meltzer -- jmeltzer@ktmc.com --
Kessler Topaz Meltzer & Check, LLP, Natalie Lesser --
nlesser@ktmc.com -- Kessler Topaz meltzer & Check, LLP, Sharon S.
Almonrode -- ssa@millerlawpc.com -- The Miller Law Firm, P.C.,
Tyler S. Graden -- tgraden@ktmc.com -- Kessler Topaz Meltzer &
Check, LLP, William Kalas -- wk@millerlawpc.com -- The Miller Law
Firm, P.C. & E. Powell Miller -- epm@millerlawpc.com -- The Miller
Law Firm.
Ford Motor Company, Defendant, represented by David M. George --
dgeorge@dykema.com -- Dykema Gossett, Jeffrey M. Yeatman --
jeffrey.yeatman@dlapiper.com -- DLA Piper LLP & Joel A. Dewey --
joel.dewey@dlapiper.com -- DLA Piper LLP.
GREENLANE HOLDINGS: Brodsky & Smith Probing Class Action 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.
[GN]
GULF COAST: Ordered to Supplement Bid for Mygrant Deal Approval
---------------------------------------------------------------
In the case, BRYAN MYGRANT et al., Plaintiffs, v. GULF COAST
RESTAURANT GROUP, INC., et al., Defendants, Civil Action No.
18-0264-WS-M (S.D. Ala.), Judge William H. Steele of the U.S.
District Court for the Southern District of Alabama, Southern
Division, ordered the parties to supplement their joint motion to
approve settlement, brief and/or evidence as they deem sufficient
to justify conditional certification, and to establish the
appropriate parameters thereof.
The two named Plaintiffs in the case filed a collective action
complaint in June 2018. The Plaintiffs were employed in Mobile,
Alabama, between March 2015 and May 2017, in the positions of
server and "food expo." The complaint asserts that the Defendants,
who own and/or operate a chain of restaurants along the Gulf Coast,
have committed the following Fair Labor Standards Act (FLSA)
violations: (1) requiring servers to absorb business expenses (such
as uniform costs, tools of the trade, non-paying customers ("walk
offs") and erroneous orders), bringing their hourly wage below the
minimum wage; (2) requiring servers to study and pass periodic menu
tests without any compensation for the time involved; (3) claiming
a tip credit for all hours worked by servers, even though servers
commonly work over 20% of their hours doing mandatory non-tipped
work; (4) requiring servers to "tip out," via a tip pool, to
non-tipped employees (bartenders, food expeditors, food runners and
bussers); and (5) requiring servers to work shifts as non-tipped
food expo and claiming a tip credit for all such hours.
The complaint alleges the Defendants' violations were willful so as
to trigger a three-year limitations period, through June 2015. It
seeks recovery of all unpaid wages and all improperly skimmed tips,
along with liquidated damages and attorney's fees and costs.
The named Plaintiffs seek to maintain a collective action in which
similarly situated past and present employees may participate. The
complaint identifies such persons as those who worked as servers at
any of the Defendants' locations since June 6, 2015, along with
other employees within these geographical and temporal parameters
who were required to absorb the Defendants' business expenses or as
to whom the defendants claimed a tip credit.
Following two mediations and the informal exchange of information
and documents, the parties reached a settlement. The parties' joint
motion to approve settlement represents their effort to secure
judicial approval of that settlement as required by cases Lynn's
Food Stores, Inc. (11th Cir. 1982) v. United States, and Nall v.
Mal-Motels, Inc. (11th Cir. 2013)
Judge Steele finds that the parties' settlement agreement
contemplates relief to a broad spectrum of past and present
employees, yet their motion does not request establishment of a
collective action. Nor have the parties made any showing that
conditional certification is appropriate under the test established
in Hipp v. Liberty National Life Insurance Co. They appear
instead to assume that an FLSA action can be settled collectively
without satisfying the ordinary requirements for conditional
certification.
In short, the Judge stated, the parties have not moved for
conditional certification; have not made a threshold showing
sufficient to obtain conditional certification; and have not
demonstrated that the mere fact they desire to settle the action
excuses them from doing so. The Judge has and expresses no opinion
whether the parties can make such a showing or demonstration, but
until and unless they do so, their proposed settlement cannot be
approved. Nor is it clear that certification is the only
impediment to approval.
Although it is premature to resolve the motion to approve
settlement, the Judge questions certain provisions because they
affect the size of the universe of potential opt-in Plaintiffs who
would receive notice prior to approval of the settlement.
On the assumption that the parties will resolve the issues noted,
the Judge provides these non-exhaustive list of potential concerns
with the terms of the proposed settlement, which the parties should
be prepared to address:
a. First, the settlement provides for each named and opt-in
Plaintiff to receive a flat $2.50 for each "compensable hour
worked" during the relevant period, which sounds evenhanded so long
as the only violations concern wrongfully claiming a tip credit but
which could lead to incongruities if an opt-in Plaintiff's only
claim is for, say, having to buy a uniform shirt that dropped one
workweek's wages below the minimum wage.
b. Second, the proposed settlement appears to envision
releases extending beyond the FLSA claims resolved by the lawsuit,
both by reaching state and local wage and compensation claims and
by covering FLSA claims for time periods following the June 2018
closing date of the settlement.
c. Third, the expense of the settlement administrator -- which
is not quantified or estimated -- is to be borne equally by the
parties, with the named and opt-in Plaintiffs collectively
responsible for half of those expenses.
d. Fourth, the agreement calls for all attorney's fees to be
paid to counsel within a week after the Defendants fund the
settlement account, which is two weeks before the settlement
administrator must distribute checks to the opt-in Plaintiffs and
months before their deadline expires to object to the settlement
administrator's calculation of their payment.
The parties were given until Sept. 6, 2019, to file such
supplemental motion, briefing and/or evidence as they deem
sufficient to justify conditional certification and to establish
appropriate parameters. Their motion to approve settlement remains
pending in the interim.
A full-text copy of the Court's Aug. 23, 2019 Order is available at
https://is.gd/CbegSo from Leagle.com.
Bryan Mygrant & Jonathan Webber, Plaintiffs, represented by Daniel
Eduardo Arciniegas -- Daniel@attorneydaniel.com -- Arciniegas Law
PLLC & Charles Peter Yezbak, III -- yezbak@yezbaklaw.com -- Yezbak
Law Offices, pro hac vice.
Gulf Coast Restaurant Group, Inc., Defendant, represented by Dena
H. Sokolow -- dsokolow@bakerdonelson.com -- Walston, Wells,
Anderson & Bains, pro hac vice, Daisy Christina Karlson --
dckarlson@bakerdonelson.com -- Baker Donelson & Zachary B. Busey --
zbusey@bakerdonelson.com -- Baker, Donelson, Bearman, Caldwell &
Berkowitz, P.C., pro hac vice.
Half Shell Oyster House, Inc. & Robert Taylor, doing business as
Half Shell Oyster House, Defendants, represented by Dena H.
Sokolow, Walston, Wells, Anderson & Bains, pro hac vice, Daisy
Christina Karlson, Baker Donelson & Zachary B. Busey, Baker,
Donelson, Bearman, Caldwell & Berkowitz, P.C.
HILL'S PET: Dismissal of ICFA & Unjust Enrichment Claims Reversed
-----------------------------------------------------------------
Judge Joel Flaum of the U.S. Court of Appeals for the Seventh
Circuit reversed the district court's dismissal of the Consumer
Fraud Act and unjust-enrichment claims in the case, HOLLY B.
VANZANT and DANA LAND, on behalf of themselves and all others
similarly situated, Plaintiffs-Appellants, v. HILL'S PET NUTRITION,
INC., and PETSMART, INC., Defendants-Appellees, Case No. 17-3633
(7th Cir.).
Vanzant and Land own cats with health problems. Their
veterinarians prescribed cat food manufactured by Hill's and sold
under Hill's "Prescription Diet" brand. For several years Vanzant
and Land purchased the higher-priced cat food from their local
PetSmart stores using their veterinarian's prescriptions. They
eventually learned, however, that the Prescription Diet cat food is
not materially different from nonprescription cat food. And the
prescription requirement is illusory; no prescription is necessary.
Feeling deceived, Vanzant and Land filed a class-action lawsuit
against Hill's and PetSmart, Inc., asserting claims under the
Illinois Consumer Fraud and Deceptive Business Practices Act, and
for unjust enrichment.
The district judge dismissed the Consumer Fraud Act claim for two
reasons: (1) the complaint lacked the specificity required for a
fraud claim; and (2) the claim is barred by a statutory safe harbor
for conduct specifically authorized by a regulatory body -- the
U.S. Food and Drug Administration ("FDA"). The judge dismissed the
unjust-enrichment claim because it was premised on the same conduct
as the statutory claim.
Judge flaum reversed. He finds that the safe-harbor provision does
not apply. Under the Food, Drug, and Cosmetic Act, pet food
intended to treat or prevent disease and marketed as such is
considered a drug and requires approval of a new animal drug
application. Without FDA approval, the manufacturer may not sell
it in interstate commerce and the product is deemed adulterated and
misbranded. The FDA issued guidance recognizing that most pet-food
products in this category do not have the required approval; the
guidance states that the agency is less likely to initiate an
enforcement action if consumers purchase the food through or under
the direction of a veterinarian (among other factors guiding the
agency's enforcement discretion). But the guidance does not
specifically authorize the conduct alleged, so the safe harbor does
not apply.
And the Plaintiffs pleaded the fraud claim with the particularity
required by Rule 9(b) of the Federal Rules of Civil Procedure. So
the statutory claim may proceed. The unjust-enrichment claim is
more appropriately construed as a request for relief in the form of
restitution based on the alleged fraud. In Illinois unjust
enrichment is not a separate cause of action but is a condition
brought about by fraud or other unlawful conduct. The request for
restitution based on unjust enrichment therefore rests entirely on
the consumer-fraud claim, and it too may move forward.
A full-text copy of the Court's Aug. 20, 2019 Order is available at
https://is.gd/NIovZL from Leagle.com.
Jonathan Hacker, for Defendant-Appellee.
Eileen R. Ridley -- eridley@foley.com -- for Defendant-Appellee.
Ellen M. Carey -- ecarey@fordellp.com -- for Plaintiff-Appellant.
John C. Gekas -- john.gekas@saul.com -- for Defendant-Appellee.
Brett Doran -- doranb@gtlaw.com -- for Defendant-Appellee.
John L. Litchfield -- jlitchfield@foley.com -- for
Defendant-Appellee.
Hannah Y.S. Chanoine -- hchanoine@omm.com -- for
Defendant-Appellee.
Richard Blair Goetz -- rgoetz@omm.com -- for Defendant-Appellee.
JLN CONSTRUCTION: Class of Laborers/Foremen in Lee Suit Certified
-----------------------------------------------------------------
In the case, CHRISTOPHER LEE, et al., Plaintiffs, v. JLN
CONSTRUCTION SERVICES, LLC, et al., Defendants, Civil Action No.
RDB-17-2765 (D. Md.), Judge Richard D. Bennett of the U.S. District
Court for the District of Maryland granted the Plaintiffs' Motion
for Class Certification.
On Sept. 18, 2017, Plaintiffs Lee and Taylor, on behalf of
themselves and other similarly situated employees, brought the
three-count Complaint against their former employer, JLN and Nnamdi
C. Iwuoha. JLN is a general contractor that provides construction
services for both private and public construction projects
throughout Maryland, and Iwuoha is JLN's owner.
The Plaintiffs allege failure to pay overtime wages under the Fair
Labor Standards Act ("FLSA"), the Maryland Wage and Hour Law
("MWHL"), and the Maryland Wage Payment and Collection Law
("MWPCL"). The Plaintiffs allege that they routinely worked over
40 hours a week, and the Defendants failed to properly pay overtime
wages.
The Plaintiffs then filed a Motion for Conditional Certification of
a Collective Class and to Facilitate Identification and Notice to
Similarly Situated Employees, which the Court granted. The Notice
of Rights Under the Fair Labor Standards Act was distributed to the
list of all potential collective action members provided by the
Defendants to the Plaintiffs.
The potential members were identified as all current and former
laborers and/or foremen of JLN Construction Services who worked
with JLN at any time between September 2014 and May 2018.
On May 14, 2018, the Court granted the Plaintiffs' Motion for
Conditional Certification. A Notice of Collective Action under the
FLSA was distributed to potential class members, and 15 additional
individuals notified the Court of their consent to be a party
Plaintiff/class member in the matter, bringing the total number of
named Plaintiffs to 17 individuals.
All 17 Plaintiffs now move the Court to grant class certification
for the wage claims alleged under the MWHL and the MWPCL. The
Plaintiffs request that the named Plaintiffs be designated the
class representatives and that the Plaintiffs' attorneys be
appointed as the class counsel.
They to certify the class of all persons who were employed by the
Defendants as laborers and/or foremen for any period between
September 2014 to present.
The Defendants oppose the class certification.
Judge Bennett finds that Plaintiffs met all four requirements of
Rule 23(a) of the Federal Rules of Civil Procedure, and the
predominance and superiority requirements of a Rule 23(b)(3) class
action. Therefore, he granted the Plaintiffs' Motion for Class
Certification. The Judge appointed (i) the Plaintiffs' attorneys
as the class counsel, and (ii) the named Plaintiffs as the class
representatives. A separate order follows.
A full-text copy of the Court's Aug. 16, 2019 Memorandum Opinion is
available at https://is.gd/Q7Ldi8 from Leagle.com.
Christopher Lee, Ladrian Taylor, Individually and on Behalf of All
Similarly Situated Employees, Christopher Louj, Oscar Mejia, Jose
Garay, David Jones, Marco Holmes, Theodore Holmes, Walter A.
Guerrero, Henry Rasmussen Taxdal, Jerome Roberts, Heath Roy, Chad
Groht, Ronald Wilson, Alphonso A. Jones, Jr., Anthony Beck &
Romarise Scott, Plaintiffs, represented by George Edward Swegman --
gswegman@nicholllaw.com -- Law Offices of Peter T. Nicholl &
Benjamin L. Davis, III -- bdavis@nicholllaw.com -- Law Offices of
Peter T. Nicholl.
JLN Construction Services, LLC & Nnamdi C. Iwuoha, Defendants,
represented by Joshua Aaron Glikin -- info@bowie-jensen.com --
Bowie and Jensen LLC & Cynthia Lynn Polasko --
polasko@bowie-jensen.com -- Bowie & Jensen, LLC.
JOHASEE REBAR: Fails to Pay Proper Wages, Sanchez et al. Say
------------------------------------------------------------
ABRAHAM SANCHEZ, and GERMAN ARREOLA-GOMEZ, individually and on
behalf of all others similarly situated, Plaintiffs v. JOHASEE
REBAR, LP; JOHASSEE REBAR, INC.; DOES 1 TO 100, Defendants, Case
No. 19STCV31242 (C.D. Cal., Sept. 4, 2019) is an action against the
Defendants for failure to pay minimum wages, overtime compensation,
authorize and permit meal and rest periods, provide accurate wage
statements, and reimburse necessary business expenses.
The Plaintiffs were employed by the Defendants as non-exempt,
hourly paid employees.
Johasee Rebar, Inc. was founded in 1999. The company's line of
business includes providing construction services such as the
erection of structural steel and of similar products of prestressed
or precast concrete. [BN]
The Plaintiff is represented by:
Joseph Lavi, Esq.
Vincent C. Granberry, Esq.
Anwar D. Burton, Esq.
LAVI & EBRAHIMIAN, LP
8889 W. Olympic Blvd., Suite 200
Beverly Hills, CA 90211
Telephone: (310) 432-0000
Facsimile: (310) 432-0001
E-mail: jlavi@lelawfirm.com
vgranberry@lelawfirm.com
aburton@lelawfirm.com
JUST ENERGY: Wilkins Appeals N.D. Ill. Ruling to Seventh Circuit
----------------------------------------------------------------
Plaintiff Levonna Wilkins filed an appeal from a Court ruling in
the lawsuit titled Levonna Wilkins v. Just Energy Group, Inc., et
al., Case No. 1:13-cv-05806, in the U.S. District Court for the
Northern District of Illinois, Eastern Division.
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act.
As previously reported in the Class Action Reporter, Judge Joan B.
Gottschall denied both the Defendants' (i) second motion to
decertify the class, and (ii) motion to reconsider entry of summary
judgment.
In the certified class action, Plaintiff Wilkins claims that the
Defendants misclassified her and the class members as independent
contractors and outside salespersons in violation of the Illinois
Minimum Wage Law. Following years of discovery, the Defendants
have filed two motions seeking reconsideration of portions of the
Court's March 13, 2015, opinion, Wilkins v. Just Energy Grp., Inc.
("Wilkins I"), modified in part on reconsideration ("Wilkins II"),
further reconsideration denied ("Wilkins III"). The first motion
asks the Court to decertify the class. The second, filed
approximately five months later, asks the Court to reconsider the
denial of summary judgment in light of Encino Motorcars, LLC v.
Navarro, and Flood v. Just Energy Mktg. Corp.
The appellate case is captioned as Levonna Wilkins v. Just Energy
Group, Inc., et al., Case No. 19-2746, in the U.S. Court of Appeals
for the Seventh Circuit.
The briefing schedule in the Appellate Case states that the
Appellant's brief is due on or before October 21, 2019, for Levonna
Wilkins.[BN]
Plaintiff-Appellant LEVONNA WILKINS, on behalf of herself and all
others similarly situated, is represented by:
Nicole T. Fiorelli, Esq.
DWORKEN & BERNSTEIN CO., L.P.A.
60 S. Park Place
Painesville, OH 44077
Telephone: (440) 352-3391
E-mail: nfiorelli@dowrkenlaw.com
Defendants-Appellees JUST ENERGY GROUP, INC., a Foreign
corporation; JUST ENERGY ILLINOIS CORP.; COMMERCE ENERGY, INC.,
Foreign Corporations; and JUST ENERGY MARKETING CORP. are
represented by:
Amanda Inskeep, Esq.
LITTLER MENDELSON P.C.
321 N. Clark Street
Chicago, IL 60654
Telephone: (312) 372-5520
E-mail: ainskeep@littler.com
JUUL LABS: Cincinnatians File Suit Over Marketing Deceit
--------------------------------------------------------
Sarah Walsh, writing for WCPO Cincinnati, reports that a pair of
Cincinnatians filed a federal class-action lawsuit Sept. 13, 2019,
against the makers of Juul e-cigarettes, arguing amid a rash of
vaping-linked illnesses that the company deceived vulnerable
customers about the amount and intensity of nicotine contained in
its its product.
The suit claims that by marketing the Juul vape pen as a "youthful,
contemporary, sexy, trendy and energetic" smoking alternative and
failing to disclose that it contained nicotine until mid-2018, the
product's creators took advantage of young people who didn't
understand the risks and smokers who believed it would help them
quit.
The plaintiffs represent both groups. According to September 13's
filing in the United States District Court for the Southern
District of Ohio, Andrew Tekulve, an 18-year-old college freshman,
never smoked cigarettes but began using a Juul as a high school
student in 2017. Although he was 16, pods were "popular, ubiquitous
and easy to obtain" from 18-year-olds who could legally purchase
them. Neither he nor his friends realized at first that the pods
contained nicotine, but he now considers himself addicted and
consumes four pods each week.
Lawyers wrote the other plaintiff, Morgan Wright, was a pack-a-day
smoker attempting to quit when she switched to Juul in 2018. Like
Tekulve, she didn't know how much nicotine was contained in a pod
or how potent a dose it would deliver.
Juul Labs leaned into marketing to recovering cigarette smokers
such as Wright, according to letters sent to the company from the
Food and Drug Administration. As of Septemeber 13, the company's
website still advertises the Juul as a smoking alternative and ads
encourage smokers to "make the switch."
Juul Labs' mission statement reads in part: "We envision a world
where fewer people use cigarettes, and where people who smoke
cigarettes have the tools to reduce or eliminate their consumption
entirely, should they so desire."
Statements like that misrepresent the Juul as a healthy product,
the suit argues. Instead, it delivers a highly concentrated dose of
nicotine -- roughly the same amount as a pack of cigarette but more
intense -- and creates or extends addiction in people who did not
realize the health risks of using it. Juul Labs did not add a
nicotine warning to the outside of the pods' packaging until spring
2018. In the year leading up to the change, high schoolers' rates
of vaping had increased by 78%.
Representatives of the company have argued to Congress that
encouraging cigarette smokers to "make the switch" does not imply
that the Juul is healthier, just different.
Juul Labs also points to recent changes, including discontinuing
its social media accounts and restricting sales of flavored pods,
as evidence it is attempting to stop illegal use by teenagers such
as Tekulve.
Still, the suit alleges the company's colorful marketing, variety
of pod flavors and longtime reluctance to clearly mark its product
as nicotine-based contributed to the problems now faced by Wright,
Tekulve and others in Ohio.
The complaint accuses Juul Labs and parent company Pax Labs of
fraud, unjust enrichment, failure to warn customers, negligence and
public nuisance, among other offenses. Wright and Tekulve request
the court issue an injunction against further Juul advertising and
award damages to customers.
A recent spate of vaping-adjacent respiratory illnesses has
affected around 380 patients, according to the Centers for Disease
Control and Prevention. No individual product or ingredient has
been definitively linked to the sicknesses, which had claimed six
lives by the time Tekulve and Wright filed their suit.
The American Lung Association requested that e-cigarette users
attempt to stop at least until the CDC investigation was complete.
Like quitting cigarettes, however, cutting out vaping is hard.
Ex-vapers interviewed by The Verge reported tossing their Juuls out
car windows, throwing them in the trash and attempting to sate
their cravings with sugar snap peas.
One woman said she ruined her Juul with water and posted about it
on social media, hoping that her fear of embarrassment would be
stronger than her desire to vape.
"I took this huge stance and told my friends what I had done, so I
felt like if I bought pods, I'd just be a f------ idiot," said.
[GN]
KANSAS CITY ROYALS: Certification of Classes in Senne Partly Upheld
-------------------------------------------------------------------
In the cases, AARON SENNE; MICHAEL LIBERTO; OLIVER ODLE; BRAD
McATEE; CRAIG BENNIGSON; MATT LAWSON; KYLE WOODRUFF; RYAN KIEL;
KYLE NICHOLSON; BRAD STONE; MATT DALY; AARON MEADE; JUSTIN JAKE
KAHAULELIO; RYAN KHOURY; DUSTIN PEASE; JEFF NADEAU; JON GASTON;
BRANDON HENDERSON; TIM PAHUTA; LEE SMITH; JOSEPH NEWBY; RYAN
HUTSON; MATT FREVERT; ROBERTO ORTIZ; WITER JIMENEZ; KRIS WATTS;
MITCH HILLIGOSS; DANIEL BRITT; YADEL MARTI; HELDER VELAQUEZ; JORGE
JIMENEZ; JORGE MINYETY; EDWIN MAYSONET; JOSE DIAZ; NICK GIARRAPUTO;
LAUREN GAGNIER; LEONARD DAVIS; GASPAR SANTIAGO; GRANT DUFF; OMAR
AGUILAR; MARK WAGNER; DAVID QUINOWSKI; BRANDON PINCKNEY,
Individually and on Behalf of All Those Similarly Situated; JAKE
OPITZ; BRETT NEWSOME, Plaintiffs-Appellants, v. KANSAS CITY ROYALS
BASEBALL CORP.; MARLINS TEAMCO LLC; SAN FRANCISCO BASEBALL
ASSOCIATES, LLC; OFFICE OF THE COMMISSIONER OF BASEBALL, DBA Major
League Baseball, an unincorporated association; ALLAN HUBER SELIG,
"BUD"; ANGELS BASEBALL LP; ST. LOUIS CARDINALS, LLC; COLORADO
ROCKIES BASEBALL CLUB, LTD.; CINCINNATI REDS, LLC; HOUSTON BASEBALL
PARTNERS LLC; ATHLETICS INVESTMENT GROUP, LLC; ROGERS BLUE JAYS
BASEBALL PARTNERSHIP; PADRES L.P.; SAN DIEGO PADRES BASEBALL CLUB,
L.P.; MINNESOTA TWINS, LLC; DETROIT TIGERS, INC.; LOS ANGELES
DODGERS LLC; STERLING METS L.P.; AZPB L.P.; NEW YORK YANKEES
P'SHIP; RANGERS BASEBALL EXPRESS, LLC; MILWAUKEE BREWERS BASEBALL
CLUB, INC.; CHICAGO CUBS BASEBALL CLUB, LLC; PITTSBURGH ASSOCIATES,
LP; BASEBALL CLUB OF SEATTLE, LLP; LOS ANGELES DODGERS HOLDING
COMPANY LLC; RANGERS BASEBALL, LLC, Defendants-Appellees, Case Nos.
17-16245, 17-16267, 17-16276 (0th Cir.), Judge Richard Paez of the
U.S. Court of Appeals for the Ninth Circuit affirmed in part and
reversed in part the district court's (i) denial of certification
for the Arizona, Florida, and Rule 23(b)(2) classes, and (ii)
certification of the California class.
The Plaintiffs are 45current and former minor league baseball
players who bring claims under the federal Fair Labor Standards Act
("FLSA") and the wage-and-hour laws of California, Arizona, and
Florida against MLB, MLB Commissioner Bud Selig, and a number of
MLB franchises. The Plaintiffs allege that the Dfendants do not
pay the players at all during spring training, extended spring
training, or the instructional leagues. They further allege that
because players are "employees" and the activities the players
perform during those periods constitute compensable work, the
Defendants have unlawfully failed to pay them at least minimum
wage. And according to the Plaintiffs, while the players are paid
-- albeit not much -- during the championship season, they
routinely work overtime, for which they are never compensated as a
matter of policy.
In May 2015, the Plaintiffs filed their Second Amended Consolidated
Class Action Complaint, which alleged wage-and-hour claims under
the laws of eight states and the FLSA; the Plaintiffs also sought
certification of a FLSA collective action. The district court
preliminarily certified the FLSA collective in October 2015.
Notice was sent to approximately 15,000 current and former minor
league players, of which more than 2,200 opted in.
In 2016, the Defendants moved to decertify the FLSA collective,
while the Plaintiffs moved to certify a Rule 23(b)(2) class as well
as Rule 23(b)(3) classes under the laws of eight states. The
district court denied certification for all proposed Rule 23(b)(3)
classes, concluding that predominance was not satisfied for two
primary reasons. The court also granted the Defendants' motion to
exclude an expert survey ("Pilot Survey") submitted by the
Pplaintiffs, finding that its methodology and results did not
satisfy the requirements of Federal Rule of Evidence 702 and
Daubert v. Merrell Dow Pharmaceuticals, Inc.. The court further
refused to certify the proposed Rule 23(b)(2) class, concluding
that because the Plaintiffs were all former -- rather than current
-- players, they lacked standing to represent a (b)(2) class.
The Plaintiffs moved for reconsideration, narrowing their proposed
classes significantly in response to the concerns the district
court expressed in its initial certification order. They requested
Rule 23(b)(3) certification of an Arizona class and a Florida class
for work performed during spring training, extended spring
training, and the instructional leagues in those states. The
Plaintiffs also moved for certification of a 23(b)(3) California
class, covering players who participated in the California League
during the championship season. Additionally, they sought to
certify a reworked FLSA collective of players who participated in
the California League or in spring training, extended spring
training, and the instructional leagues.
In addition to the 23(b)(3) classes and FLSA collective, the
Plaintiffs requested certification of a Rule 23(b)(2) injunctive
relief class consisting of current minor league players who
participate in spring training, extended spring training, or the
instructional leagues in Florida or Arizona. To cure the court's
earlier concerns about standing, four current minor league players
moved to intervene to represent the proposed (b)(2) class.
Because it concluded that the predominance and "similarly situated"
requirements could be met with the use of representative evidence
and application of the continuous workday rule, the district court
recertified the narrowed FLSA collective and certified a California
(b)(3) class. However, the district court denied certification for
the Arizona, Florida, and (b)(2) classes, holding that
choice-of-law concerns defeated predominance for the Arizona and
Florida classes and undermined "cohesiveness" for the (b)(2)
class.
At the Defendants' request, the district court certified the FLSA
collective certification order for interlocutory review under 28
U.S.C. Section 1292. The Plaintiffs petitioned the Courts for
permission to appeal the denial of certification for the Arizona,
Florida, and Rule 23(b)(2) classes, and the Defendants likewise
petitioned to appeal the certification of the California class; the
Court granted both petitions, consolidating those cross-appeals
with the FLSA collective appeal.
To paraphrase the Chief Justice, these complex appeals require the
Court to call a great number of balls and strikes, as both parties
raise numerous challenges to the district court's certification
order. For their part, the Plaintiffs challenge the district
court's decision to deny certification for the Arizona and Florida
Rule 23(b)(3) classes and the Rule 23(b)(2) class on the grounds
that choice-of-law issues defeated the predominance requirement for
the Arizona and Florida (b)(3) classes and also thwarted
"cohesiveness" for the proposed (b)(2) class.
The Defendants, on the other hand, contest the district court's
certification of the California (b)(3) class, arguing first that
choice-of-law issues defeat both predominance and adequacy, and
second, that plaintiffs cannot meet the predominance requirement
through the use of their proffered representative evidence: the
Main Survey, team schedules, payroll records, deposition testimony,
and declarations. The Defendants further charge that the district
court erred in certifying the FLSA collective because the
Plaintiffs' representative evidence does not show that the
collective members are "similarly situated." They also contend
that the district court erred by not "rigorously analyzing" the
Plaintiffs' expert evidence at the class and collective
certification stage.
First, Judge Paez does not foreclose the possibility that there
could be some circumstances in which a proper application of
California's choice-of-law rules might lead to the application of
another state's wage and hour laws to work performed in California.
Nor does he create a per se rule or an unrebuttable presumption.
He holds only that, given the considerations, he is more than
satisfied that the district court did not err in concluding that
under Sullivan v. Oracle Corp., California law applies to the to
the (b)(3) California class.
The Judge next addresses whether the district court erred in
determining that choice-of-law considerations defeated predominance
and adequacy for the proposed Arizona and Florida Rule 23(b)(3)
classes. He conclude sthat the district court's determination must
be reversed. His conclusion is animated in part by several of the
considerations, which apply with equal force to the Arizona and
Florida classes. Moreover, the aforementioned enormous practical
implications of a contrary holding would be just as problematic and
unworkable in Arizona and Florida as in California.
The Judge next addresses whether the district court erred in
refusing to certify a Rule 23(b)(2) class for unpaid work at the
Defendants' training facilities in Arizona and Florida on the sole
basis that choice-of-law issues undermined "cohesiveness" and
therefore made injunctive and declaratory relief inappropriate.
Because the district court's errors in its choice-of-law analysis
relating to the proposed Arizona and Florida Rule 23(b)(3) classes
apply equally to its refusal to certify the proposed Rule 23(b)(2)
class, he also reverses the denial of the (b)(2) class.
The Judge further holds that the district court erred in imposing a
"cohesiveness" requirement for the proposed Rule 23(b)(2) class.
Although he has never explicitly addressed whether "cohesiveness"
is required under Rule 23(b)(2), courts that have imposed such a
test treat it similarly to Rule 23(b)(3)'s predominance inquiry --
something the Court has previously rejected in no uncertain terms.
He therefore remands for the district court to consider anew
whether to certify the proposed Rule 23(b)(2) class.
Having addressed the impact of choice-of-law questions, the Judge
turns to the issue next up at bat: whether the district court erred
in concluding that the Plaintiffs could meet the predominance
requirement for the proposed California, Florida, and Arizona
(b)(3) classes through a combination of representative evidence and
application of the "continuous workday" rule.
Whether the district court was correct in concluding that the
Plaintiffs had satisfied the predominance requirement hinges on the
application of two longstanding wage-and-hour doctrines to the
case: first, the burden-shifting framework initially set forth in
the Supreme Court's seminal decision in Anderson v. Mt. Clemens,
and recently expanded upon in Tyson Foods v. Bouaphakeo; and
second, the so-called "continuous workday" rule.
As to the Arizona and Florida classes, the Judge easily affirms the
district court's determination. Recall that these two classes
cover time spent participating in spring training, extended spring
training, and the instructional leagues -- periods during which
virtually all players are completely unpaid for their
participation. Moreover, these classes do not bring overtime
claims, but rather allege minimum wage violations. Therefore -- as
the district court correctly held -- liability can be established
simply by showing that the class members performed any compensable
work. That is easily resolved on a classwide basis by answering
two questions: (1) whether the players are employees of the
Defendants, and (2) whether the minor league team activities during
these periods constitute compensable work under the laws of either
Arizona or Florida. The Judgee holds that these two "common,
aggregation-enabling issues in the case are more prevalent and
important than the non-common, aggregation-defeating, individual
issues," therefore making certification appropriate.
The Judge next addresses whether the district court was correct to
hold that predominance had been met for the California class. A
number of considerations lead the Judge to affirm the district
court's determination. First, the Defendants do not credibly
dispute that their policy is to never pay overtime and to pay a
fixed salary, regardless of the actual number of hours worked.
Second, the team schedules alone -- independent of the Main Survey
or any other evidence -- may suffice to show overtime liability.
Third, and most significantly, he is persuaded that under Tyson,
the representative evidence the Plaintiffs offered was adequate to
meet their burden at this stage.
Next, the Judge addresses whether the district court properly
certified the FLSA collective action. He is satisfied that
certification of the collective is not only appropriate under his
interpretation of "similarly situated," but also that it is
consistent with "the great public policy" embodied by the FLSA.
For the reasons explained, Judge Paez affirmed in part, reversed in
part, and reamnded for further proceedings consistent with his
Opinion. The Plaintiffs-Appellants/Cross-Appellees will recover
their costs on appeal.
A full-text copy of the Court's Aug. 16, 2019 Opinion is available
at https://is.gd/KojX0j from Leagle.com.
Robert L. King (argued) -- rking@koreintillery.com -- and Garrett
R. Broshuis, Korein Tillery LLC, St. Louis, Missouri; Bruce L.
Simon -- bsimon@pswlaw.com -- and Benjamin E. Shiftan, Pearson
Simon & Warshaw LLP, San Francisco, California; Daniel L. Warshaw
-- dwarshaw@pswlaw.com -- and Bobby Pouya -- bpouya@pswlaw.com --
Pearson Simon & Warshaw LLP, Sherman Oaks, California; for
Plaintiffs-Appellants.
Elise M. Bloom (argued) -- ebloom@proskauer.com -- Adam M. Lupion
-- alupion@proskauer.com -- and Mark D. Harris, Proskauer Rose LLP,
New York, New York; John E. Roberts, Proskauer Rose LLP, Boston,
Massachusetts; for Defendants-Apellees.
David C. Frederick and Jeffrey A. Love, Kellogg Hansen Todd Figel &
Frederick PLLC, Washington, D.C., for Amici Curiae Professors Peter
Hay and Patrick J. Borchers.
Allan Steyer and Donald Scott MacRae, Steyer Lowenthal Boodrookas
Alvarez & Smith LLP, San Francisco, California, for Amici Curiae
Professional Hockey Players Assocation; Association of Minor League
Umpires; Office and Professional Employee's International Union;
and United Steel, Paper and Forestry, Rubber, Manufacturing,
Energy, Allied and Industrial Service Workers International Union.
LABORATORY CORP: Court Narrows Claims in Amended Anderson Suit
--------------------------------------------------------------
In the case, SHERYL ANDERSON, MARY CARTER, TENA DAVIDSON, ROBERT
HUFFSTUTLER, RAMZI KHAZEN, CHAIM MARCUS, LILY MARTYN, JONAH McCAY,
HOLDEN SHERIFF, VICTORIA SMITH, MICHELLE SULLIVAN, SHONTELLE
THOMAS, JOSEPH WATSON, and MICHAEL WILSON, individually and on
behalf of all others similarly situated, Plaintiffs, v. LABORATORY
CORPORATION OF AMERICA HOLDINGS, Defendant, Case No. 1:17cv193
(M.D. N.C.), Judge Thomas D. Schroeder of the U.S. District Court
for the Middle District of North Carolina (i) granted in part and
denied in part LabCorp's motion to dismiss Plaintiffs' amended
complaint, and (ii) denied without prejudice LabCorp's motion to
strike class allegations.
LabCorp provides laboratory testing services to healthcare
recipients internationally. It has more than 115 million patient
encounters annually and has generated more revenue from clinical
lab testing services than any other company in the world. Its
"LabCorp Diagnostics" segment is an independent clinical laboratory
business that provides the services that are the subject of
Plaintiffs' amended complaint. LabCorp's customers are managed
care organizations, biopharmaceutical companies, governmental
agencies, physicians and other healthcare providers, hospitals,
employers, patients, and consumers.
LabCorp routinely charges different customers different rates for
the same services. These rates include an undiscounted retail
rate, which Plaintiffs variously term the "fee schedule rate,"
"list price," and "chargemaster rate"; the discounted rates LabCorp
has negotiated with certain third-party payors, such as insurers; a
standardized rate for Medicare clients; and rates that LabCorp
negotiates with certain uninsured or underinsured individuals.
These rates vary greatly, but the list prices tend to be much
higher than the other rates.
There are 14 Plaintiffs. Their common complaint is that they were
provided services by LabCorp for which they were charged the list
price, which they allege is grossly too high, without any prior
agreement as to price. Some Plaintiffs -- Michelle Sullivan, Mary
Carter, and Chaim Marcus -- arranged for their diagnostic testing
at a LabCorp facility, presumably in their states of residence,
California, Maryland, and New Jersey, respectively. Others,
including Tena Davidson (resides in Florida), Shontelle Thomas
(resides in Tennessee), and Lily Martyn (resides in New York but
had services performed in North Carolina), authorized their
physicians to order laboratory testing without knowing what lab
would do the work. Still others, including Sheryl Anderson
(resides in Alabama) and Ramzi Khazen (resides in Texas), had blood
drawn by their health care providers who sent the specimens to
LabCorp without advising either Plaintiff that the sample was being
sent to any laboratory testing company.
At the time the services were rendered, none of these Plaintiffs
had an express agreement with LabCorp to pay the list prices
LabCorp subsequently charged. Most Plaintiffs had health
insurance, but the relevant testing performed by LabCorp was not
covered by their policies; Martyn and Thomas were uninsured. As a
result, the Plaintiffs were charged LabCorp's list prices. Some
Plaintiffs paid the charges under protest, while others have
refused to pay.
The amended complaint expands on the original complaint in the case
that made similar allegations. On March 28, 2018, the Court
granted LabCorp's motion to dismiss the original complaint in a
memorandum opinion and order finding that the allegations failed to
state a claim upon which relief could be granted. On Aug. 10,
2018, after the Court granted leave, the Plaintiffs filed an
amended complaint.
The amended complaint brings 11 claims, each on behalf of a
putative class. In Count I, the Plaintiffs seek a declaratory
judgment that they never contractually assented to LabCorp's list
prices, and therefore that LabCorp's right of recovery against them
for the relevant laboratory testing services is limited to an
implied-contract recovery of the "reasonable value" of the services
rendered. Further, the Plaintiffs seek a declaration that
LabCorp's list prices exceed the "reasonable value" of its
services. In Count II, as to all the Plaintiffs who paid LabCorp's
list prices, the Plaintiffs seek to recoup the amounts they paid
above the "reasonable value" of the services rendered. In Counts
III-XI, they allege that LabCorp's billing practices violate
various consumer protection statutes prohibiting unfair or
deceptive trade practices in North Carolina, Alabama, California,
Florida, Maryland, New Jersey, Tennessee, and Texas.
LabCorp now moves to dismiss the amended complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6), largely on the basis that
the Plaintiffs have failed to correct the defects of the original
complaint, as laid out in the Court's previous memorandum opinion
and order in the case. The Plaintiffs contend in response that
they have rectified any defects in the original complaint by
recharacterizing their implied-contract theory, adding a
declaratory judgment claim, and backing off their earlier
insistence that the "reasonable value" of LabCorp's services is
necessarily the rates LabCorp negotiates with insurers. The Court
held argument on July 16, 2019.
Judge Schroeder granted in part and denied in part LabCorp's motion
to dismiss. He granted it as to Count II and as to any claim in
Counts III-XI based on nondisclosure of CPT codes; and denied the
motion as to all other claims.
As for Count I, the Judge finds that nothing in the Court's prior
memorandum opinion and order bars the Plaintiffs' claim seeking a
declaratory judgment that LabCorp is limited to a quasi-contract
theory of recovery against the Plaintiffs, and LabCorp offers no
other persuasive reason that the claim should fail at this early
stage.
He denied LabCorp's motion to dismiss as to any claim based on
allegations that LabCorp was limited to payment for the reasonable
value of its services under a quasi-contract theory and
nevertheless attempted to collect undisclosed and grossly excessive
prices through coercive billing practices. The Judge need not
reach arguments pertaining to whether the threatening letters in
isolation would support a claim for unfair or deceptive trade
practices, as it construes the Plaintiffs' excessive-pricing and
threatening-letter theories together as a general challenge to
LabCorp's billing practices. Lacking any persuasive argument to
the contrary, the Judge cannot say that the Plaintiffs have failed
to plead a claim under the state consumer protection statutes at
issue.
The Judge denied LabCorp's motion to strike class allegations
without prejudice to those challenges being raised in opposition to
the Plaintiffs' motion for class certification. He finds that
although LabCorp identifies serious hurdles that the Plaintiffs
will have to overcome to achieve class certification, the
Plaintiffs' chances of attaining certification are not so wholly
nonexistent as to justify the drastic remedy of striking their
class allegations. While such noncommittal positions on reasonable
value and certification do not justify striking the class
allegations at this early stage, they will not translate into
fishing-expedition-style class discovery. Instead, the Plaintiffs
should be permitted the opportunity to demonstrate how some
targeted discovery can be had that is reasonable and proportional
to the necessary issues. The prudent course is to allow the
parties to more fully marshal their certification arguments with
the benefit of at least preliminary discovery.
A full-text copy of the Court's Aug. 16, 2019 Memorandum Opinion
and Order is available at https://is.gd/7eVXr6 from Leagle.com.
MICHELLE SULLIVAN, INDIVIDUALLY AND BEHALF OF ALL OTHERS SIMILARLY
SITUATED, HOLDEN SHERIFF, INDIVIDUALLY AND BEHALF OF ALL OTHERS
SIMILARLY SITUATED, SHERYL ANDERSON, individually and on behalf of
all others similarly situated, MARY CARTER, individually and on
behalf of all others similarly situated, TENA DAVIDSON,
individually and on behalf of all others similarly situated, ROBERT
HUFFSTUTLER, individually and on behalf of all others similarly
situated, RAMZI KHAZEN, individually and on behalf of all others
similarly situated, CHAIM MARCUS, individually and on behalf of all
others similarly situated, LILY MARTYN, individually and on behalf
of all others similarly situated, JONAH MCCAY, individually and on
behalf of all others similarly situated, VICTORIA SMITH,
individually and on behalf of all others similarly situated,
SHONTELLE THOMAS, individually and on behalf of all others
similarly situated, JOSEPH WATSON, individually and on behalf of
all others similarly situated & MICHAEL WILSON, individually and on
behalf of all others similarly situated, Plaintiffs, represented by
ROBERT C. FINKEL -- rfinkel@wolfpopper.com -- WOLF POPPER LLP, SEAN
M. ZAROOGIAN -- szaroogian@wolfpopper.com -- WOLF POPPER LLP &
JONATHAN DREW SASSER -- jon.sasser@elliswinters.com -- ELLIS &
WINTERS, LLP.
LABORATORY CORPORATION OF AMERICA HOLDINGS, Defendant, represented
by AARON M. HEALEY -- ahealey@jonesday.com -- JONES DAY, B. KURT
COPPER -- bkcopper@jonesday.com -- JONES DAY, CHARLES E. RAYNAL, IV
-- charlesraynal@parkerpoe.com -- PARKER POE ADAMS & BERNSTEIN LLP,
DUSTIN M. KOENIG, JONES DAY, HEATHER M. O'SHEA, JONES DAY, SCOTT
ELLIOTT BAYZLE, PARKER POE ADAMS & BERNSTEIN LLP & STEPHEN G. SOZIO
-- sgsozio@jonesday.com -- JONES DAY.
LAPEER INDUSTRIES: Nikora Moves to Certify Ex-Workers Class
-----------------------------------------------------------
The Plaintiff in the lawsuit entitled ALEX NIKORA IV, on behalf of
himself and all others similarly situated v. LAPEER INDUSTRIES,
INC., Case No. 2:19-cv-10816-AC-MKM (E.D. Mich.), moves the Court
for an order, in furtherance of his claims under the Worker
Adjustment Retraining and Notification ("WARN") Act, certifying a
class comprised of similarly situated former employees:
(i) who were terminated without cause beginning on or about
January 4, 2019, and within ninety (90) days of that
date, or were terminated without cause as the reasonably
foreseeable consequence of the mass layoffs and/or plant
closings ordered by Defendant beginning on January 4,
2019;
(ii) who were not provided advance written notice of their
terminations;
(iii) who are "affected employees" within the meaning of
29 U.S.C. Section 2101(a)(5); and
(iv) who have not filed a timely request to opt-out of the
class.
Mr. Nikora also asks the Court to appoint him as the Class
Representative, to appoint Outten & Golden LLP as Class Counsel,
and to approve the form and manner of notice to the class.[CC]
The Plaintiff is represented by:
Rene S. Roupinian, Esq.
Jack A. Raisner, Esq.
OUTTEN & GOLDEN LLP
685 Third Avenue, 25th Floor
New York, NY 10017
Telephone: (212) 245-1000
E-mail: rsr@outtengolden.com
jar@outtengolden.com
LEESA SLEEP: Traynor Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against LEESA SLEEP, LLC. The
case is styled as Yaseen Traynor, on behalf of himself and all
others similarly situated, Plaintiff v. LEESA SLEEP, LLC,
Defendant, Case No. 1:19-cv-08949 (S.D. N.Y., Sept. 26, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Leesa is a mattress manufacturer founded in 2014 that is based in
Virginia Beach, VA.[BN]
The Plaintiff is represented by:
Russel Craig Weinrib, Esq.
Stein Saks PLLC
285 Passaic St., Suite 5
Hakensack, NJ 07601
Phone: (201) 282-6500
Email: rweinrib@steinsakslegal.com
LEXISNEXIS: Hit by Class Suit for Selling Driver Data to Law Firms
------------------------------------------------------------------
Alexis Kramer, writing for Bloomberg Law, reports that LexisNexis
Risk Solutions Inc. has been hit with a proposed class action
alleging it unlawfully sold to law firms the personal information
of drivers involved in car accidents.
The data analytics company obtained names, addresses, and other
data from thousands of motor vehicle records and sold that
information to personal injury firms, plaintiff Jonathan Hatch
alleged in a complaint filed Sept. 12 in the U.S. District Court
for the Western District of North Carolina.
LexisNexis knew that the law firms planned to use the data to
solicit clients, Hatch said. He accused the company of violating
the federal Drivers Privacy Protection Act of 1994, which bars the
unwanted disclosure of personal information obtained by state
departments of motor vehicles.
Soliciting potential clients isn't a permissible purpose for
obtaining motor vehicle records under the law, Hatch said.
Cause of Action: Violation of the Drivers Privacy Protection Act of
1994.
Relief: Permanent injunction, declaratory judgment, liquidated
damages, attorneys' fees.
Potential Class Size: North Carolina drivers' license holders who
are identified on motor vehicle records that LexisNexis distributed
for sale.
Response: LexisNexis didn't immediately respond to a request for
comment.
Attorneys: White & Stradley PLLC is representing Hatch.
The case is Hatch v. LexisNexis Risk Solutions Inc., W.D.N.C., No.
3:19-cv-449, complaint filed 9/12/19. [GN]
LISSON GELLERY: Mendez Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Lisson Gallery NY,
Inc. The case is styled as Himelda Mendez AND ON BEHALF OF ALL
OTHER PERSONS SIMILARLY SITUATED, Plaintiff v. Lisson Gallery NY,
Inc., Defendant, Case No. 1:19-cv-08980 (S.D. N.Y., Sept. 26,
2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Lisson Gallery, founded in 1967, is one of the most influential
contemporary art galleries in the world, showing over 50 innovative
and international artists.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
Bradly Gurion Marks, Esq.
The Marks Law Firm PC
175 Varick Street 3rd Floor
New York, NY 10014
Phone: (646) 770-3775
Fax: (646) 867-2639
Email: bmarkslaw@gmail.com
LOTUS BY JOHNNY: Court Refuses to Certify Classes in Nguyen Suit
----------------------------------------------------------------
The Hon. James V. Selna denies the motion for class certification
filed by Plaintiffs Long Nguyen and Thuy Tran in the lawsuit titled
Long Nguyen, et al. v. Lotus By Johnny Dung, Inc., etc., Case No.
8:17-cv-01317-JVS-JDE (C.D. Cal.).
The Court denies the Plaintiffs' motion for class certification for
failure to satisfy Rule 23(b) of the Federal Rules of Civil
Procedure. Judge Selna opines that none of the Plaintiffs'
proposed classes can satisfy the predominance requirement of Rule
23(b)(3).
The Plaintiffs bring this lawsuit on behalf of themselves and all
other similarly situated individuals. Between October 2016 and
March 2017, the Plaintiffs contend they were exposed to and viewed
the Defendant's commercial advertising for Super Advanced Fucoidan
Plus 800 mg and Super Graviola 3000 mg.
According to the Court's Civil Minutes, on the Defendant's
ecommerce Web site, the products are advertised in broad and
general terms in both English and Vietnamese. However, on
television, in printed brochures, and on social media channels, the
products are advertised to cure asthma, kill cancer, and strengthen
the immune system by 900%. These advertisements are only in
Vietnamese.
The Plaintiffs sought certification of these proposed classes:
-- Unfair Competition Law ("UCL") California-Only Class
(Illegal "Drug" Sales):
* All consumers in California, who within the applicable
statute of limitations, purchased Defendant's Fucoidan
Products; and
* All consumers in California, who within the applicable
statute of limitations, purchased Defendant's Graviola
Products;
-- Unfair Competition Law ("UCL") California-Only Class
(Deception Claim):
* All consumers in California, who within the applicable
statute of limitations, purchased Defendant's Fucoidan
Products; and
* All consumers in California, who within the applicable
statute of limitations, purchased Defendant's Graviola
Products;
-- Consumer Remedies Legal Act ("CLRA") California-Only
Class:
* All consumers in California, who within the applicable
statute of limitations, purchased Defendant's Fucoidan
Products; and
* All consumers in California, who within the applicable
statute of limitations, purchased Defendant's Graviola
Products;
-- False Advertising Law ("FAL") California-Only Class:
* All consumers in California, who within the applicable
statute of limitations, purchased Defendant's Fucoidan
Products; and
* All consumers in California, who within the applicable
statute of limitations, purchased Defendant's Graviola
Products;
-- Breach of Express Indemnity ("BEI") California-Only Class:
* All consumers in California, who within the applicable
statute of limitations, purchased Defendant's Fucoidan
Products; and
* All consumers in California, who within the applicable
statute of limitations, purchased Defendant's Graviola
Products; and
-- Breach of Implied Indemnity ("BII") California-Only Class:
* All consumers in California, who within the applicable
statute of limitations, purchased Defendant's Fucoidan
Products; and
* All consumers in California, who within the applicable
statute of limitations, purchased Defendant's Graviola
Products.[CC]
LUHRING AUGUSTINE: Mendez Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Luhring Augustine
Gallery Incorporated. The case is styled as Himelda Mendez AND ON
BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, ADR Provider v.
Luhring Augustine Gallery Incorporated, Defendant, Case No.
1:19-cv-08979 (S.D. N.Y., Sept. 26, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Luhring Augustine Gallery Incorporated is a gallery founded in 1985
by co-owners Lawrence R. Luhring and Roland J. Augustine. Its
principal focus is the representation of an international group of
contemporary artists whose diverse practices include painting,
drawing, sculpture, video and photography.[BN]
The Plaintiff is represented by:
Bradly Gurion Marks, Esq.
The Marks Law Firm PC
175 Varick Street 3rd Floor
New York, NY 10014
Phone: (646) 770-3775
Fax: (646) 867-2639
Email: bmarkslaw@gmail.com
MACROGENICS INC: Robbins Geller Files Class Action Lawsuit
----------------------------------------------------------
Robbins Geller Rudman & Dowd LLP
(http://www.rgrdlaw.com/cases/macrogenics/)announced that a class
action has been commenced on behalf of purchasers of MacroGenics,
Inc. (NASDAQ:MGNX) common stock during the period between February
6, 2019 and June 3, 2019 (the "Class Period"). This action was
filed in the District of Maryland and is captioned Hill v.
MacroGenics, Inc., et al., No. 19-cv-2713.
The Private Securities Litigation Reform Act of 1995 permits any
investor who purchased MacroGenics 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, Brian E. Cochran of
Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at
bcochran@rgrdlaw.com You can view a copy of the complaint as filed
at http://www.rgrdlaw.com/cases/macrogenics/
The complaint charges MacroGenics and certain of its officers and
directors with violations of the Securities Exchange Act of 1934.
MacroGenics is a clinical stage biopharmaceutical company focused
on the development of antibody-based therapeutics designed to
control the human immune response for the treatment of cancer in
the United States. Its pipeline of immuno-oncology product
candidates includes margetuximab, an investigational monoclonal
antibody that targets the HER2 oncoprotein. HER2 is expressed by
tumor cells in breast, gastroesophageal and other solid tumors.
The SOPHIA study is a randomized, open-label Phase III clinical
trial evaluating margetuximab plus chemotherapy compared to
trastuzumab plus chemotherapy in patients with HER2-positive
metastatic breast cancer.
The complaint alleges that throughout the Class Period, defendants
violated the federal securities laws by disseminating false and
misleading statements to the investing public and/or failing to
disclose adverse facts pertaining to the Company's Phase III SOPHIA
trial. Specifically, defendants concealed material information
and/or failed to disclose that: (a) the Company had conducted the
progression-free survival ("PFS") and first interim overall
survival ("OS") analyses for the SOPHIA trial by no later than
October 10, 2018; (b) the October 2018 PFS analysis showed a 0.9
month improvement in PFS; and (c) the October 2018 OS interim
analysis did not produce a statistically significant result and the
interim OS Kaplan-Meier curves (a non-parametric statistic used to
estimate the survival function from lifetime data) crossed in
several spots (thereby violating the constant hazard assumption)
and separated late. As a result of this information being withheld
from the market, MacroGenics common stock traded at artificially
inflated prices during the Class Period, reaching a high of $25.60
per share on February 6, 2019.
On May 13, 2019, the American Society of Clinical Oncologists
("ASCO") posted the SOPHIA study abstract on the Internet. The
abstract disclosed that the October 2018 PFS analysis resulted in a
0.9 month improvement in PFS. As a result of this news, the price
of MacroGenics common stock dropped $1.17 per share, to close at
$16.25 per share on May 13, 2019, a decline of 7%.
Then on June 4, 2019, during the ASCO annual meeting, the Company
disclosed additional data for the SOPHIA trial. In its
presentation, MacroGenics revealed that it had conducted the PFS
and OS analyses in October 2018, and the OS analyses for the SOPHIA
trial demonstrated Kaplan-Meier curves crossing at several spots
with late separation. As a result of this news, the price of
MacroGenics common stock dropped 17%, or $3.13 per share, to close
at $15.58 per share on June 4, 2019.
Plaintiff seeks to recover damages on behalf of all purchasers of
MacroGenics 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.com/for more
information.
Contacts
Brian E. Cochran, Esq.
Robbins Geller Rudman & Dowd LLP
Tel: 800-449-4900
Email: bcochran@rgrdlaw.com [GN]
MACROGENICS INC: Schall Law Files Class Action Lawsuit
------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
announces the filing of a class action lawsuit against MacroGenics,
Inc. (NASDAQ: MGNX) for violations of Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder by the U.S. Securities and Exchange Commission.
Investors who purchased the Company's shares between February 6,
2019 and June 3, 2019, inclusive (the "Class Period"), are
encouraged to contact the firm before November 12, 2019.
We also encourage you to contact Brian Schall of the Schall Law
Firm, 1880 Century Park East, Suite 404, Los Angeles, CA 90067, at
424-303-1964, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. MacroGenics had conducted a
progression-free survival ("PFS") and first interim overall
survival ("OS") analyses for the SOPHIA trial by October 10, 2018.
This analysis showed a 0.9 month improvement in PFS. The interim OS
analysis did not demonstrate a statistically significant result and
the interim OS Kaplan-Meier curves (a non-parametric statistic used
to estimate the survival function from lifetime data) crossed in
several spots (thereby violating the constant hazard assumption)
before separating late. Based on these facts, the Company's public
statements were false and misleading throughout the class period.
When the market learned the truth about MacroGenics, investors
suffered damages.
Join the case to recover your losses.
The Schall Law Firm represents investors around the world and
specializes in securities class action lawsuits and shareholder
rights litigation. [GN]
MDL 1869: Class Certification Denial in Antitrust Suit Affirmed
---------------------------------------------------------------
In the case, IN RE: RAIL FREIGHT FUEL SURCHARGE ANTITRUST
LITIGATION — MDL NO. 1869. DAKOTA GRANITE COMPANY, ON BEHALF OF
ITSELF AND ALL OTHERS SIMILARLY SITUATED, ET AL., Appellants, v.
BNSF RAILWAY COMPANY, ET AL., Appellees, Case No. 18-7010 (D.C.
App.), Judge Gregory G. Katsas of the U.S. Court of Appeals for the
District of Columbia Circuit affirmed the district court's denial
of class certification because the Plaintiffs' regression analysis
measured negative damages for over 2,000 members of the proposed
class.
The case involves a putative class of over 16,000 shippers
allegedly harmed by a price-fixing conspiracy among the nation's
largest freight railroads. The appeal arises out of 18 antitrust
actions consolidated by the Multidistrict Litigation Panel. The
Defendants are the four largest freight railroads in the United
States: BNSF Railway Company; CSX Transportation, Inc.; Norfolk
Southern Railway Company; and Union Pacific Railroad Co. The
Plaintiffs, who are their customers, allege that the railroads
conspired to fix rate-based fuel surcharges. Railroads impose fuel
surcharges -- additional charges above the base shipping price --
when the price of fuel rises above a certain trigger price.
Rate-based surcharges are calculated as a percentage of the base
shipping price.
Following consolidation, the action was divided into one case
involving direct purchasers and another involving indirect
purchasers. All the Plaintiffs alleged that the railroads violated
section 1 of the Sherman Act by conspiring to fix prices. The
direct purchasers sought treble damages under section 4 of the
Clayton Act, and the district court held that they stated a claim,
In re Rail Freight Surcharge Antitrust Litig. The indirect
purchasers sought injunctive relief under section 16 of the Clayton
Act, and raised various state-law claims. The district court held
that the state claims were preempted by federal law, but it
declined to dismiss the federal claims.
The eight named Plaintiffs in the direct-purchaser case -- Carter
Distributing Co.; Dakota Granite Co.; Donnelly Commodities, Inc.;
Dust Pro, Inc.; Nyrstar Taylor Chemicals, Inc.; Olin Corp.; Strates
Shows, Inc.; and US Magnesium, LLC -- moved to certify a class
under Federal Rule of Civil Procedure 23(b)(3). The proposed class
consisted of all shippers who paid rate-based fuel surcharges for
unregulated services purchased from the Defendants between July 1,
2003 and Dec. 31, 2008.
The district court initially certified the class. It noted that if
individualized proof were necessary to establish causation and
injury, then the Plaintiffs could not satisfy the Rule 23(b)(3)
requirement that common questions predominate. But the court found
Dr. Rausser's regression analysis to be "plausible" and "workable,"
so it concluded that causation, injury, and damages were
"susceptible to proof at trial through evidence common to the
class." The court rejected many different criticisms of the
regression models, but it did not specifically address the question
of false positives for legacy contracts.
On interlocutory review, the Court vacated the certification order
and remanded for reconsideration in light of Comcast Corp. v.
Behrend. The Court explained that, for an antitrust class action,
common questions "cannot predominate where there exists no reliable
means of proving classwide injury in fact." It stressed that Rule
23, as construed in Comcast, requires a "hard look at the soundness
of statistical models that purport to show predominance."
On remand, after permitting supplemental discovery and expert
reports, the district court denied class certification. It
concluded that Dr. Rausser's expert opinions were reliable enough
to be admissible at trial. But in assessing predominance, the
court identified three shortcomings in his damages model: first, it
measured highly inflated damages for intermodal traffic (i.e.,
shipments traveling by rail and another mode of transportation such
as trucks or airplanes); second, as we had noted in the earlier
appeal, the model erroneously measured damages for shipments made
under legacy contracts; and third, the model measured negative
damages -- and hence no injury -- for over 2,000 members of the
proposed class. The court concluded that any one of these problems
was enough to defeat the Plaintiffs' argument for predominance.
The Plaintiffs filed a petition for permission to appeal the
class-certification decision under Federal Rule of Civil Procedure
23(f). A motions panel of the Court granted the petition without
prejudice to reconsideration at the merits stage.
Judge Katsas finds that Dr. Rausser's damages model, even if
sufficiently reliable, does not prove classwide injury. Even
assuming the model can reliably show injury and causation for 87.3%
of the class, that still leaves the Plaintiffs with no common proof
of those essential elements of liability for the remaining 12.7%.
The district court held that the need for individualized inquiries
to determine which of at least 2,037 (and possibly more) class
members were actually injured by the alleged conspiracy, precluded
a finding of predominance.
Looking beyond Dr. Rausser's regression analysis, the Plaintiffs
point to other evidence that they say can prove injury and
causation on a class-wide basis. The Plaintiffs invoke documentary
evidence that the Defendants enforced fuel surcharges "uniformly
and with few exceptions." The Judge finds that the Plaintiffs'
evidence of widespread fuel surcharges helps explain why the
proposed class is a large one, but it neither proves that the 2,037
shippers were injured by the alleged conspiracy nor otherwise
compels a finding of predominance.
Next, the Plaintiffs invoke the expert testimony of Dr. James
McClave, who argued that the 2,037 shippers must have been harmed
by the conspiracy. The Judge finds the evidence insufficient to
prove that injury could be established on a class-wide basis,
because the expert could not say what percentage of adverse
employment decisions were in fact caused by bias. The McClave
study is similarly incomplete because it does not attempt to
identify which of the small shippers, or what percentage of them,
were in fact harmed by the alleged conspiracy.
In In re Asacol Antitrust Litig., the First Circuit noted the
absence of even a single case allowing, under Rule 23, a trial in
which thousands of class members testify. That court declined to
create "the first such case." So does the Court. Given the need
in the case for at least 2,037 individual determinations of injury
and causation, the district court did not abuse its discretion in
denying class certification on the ground that common issues do not
predominate.
Based on the foregoing, Judge Katsas accordingly, affirmed.
A full-text copy of the Court's Aug. 30, 2019 Order is available at
https://is.gd/94nOf5 from Leagle.com.
Kathleen M. Sullivan -- kathleensullivan@quinnemanuel.com -- argued
the cause for appellants. With her on the briefs were Stephen R.
Neuwirth, Sami H. Rashid, Michael D. Hausfeld, and Michael P.
Lehmann.
Carter G. Phillips -- CPHILLIPS@SIDLEY.COM -- argued the cause for
appellees. With him on the brief were Joseph R. Guerra, Kathleen
Moriarty Mueller, Saul P. Morgenstern, Thomas A. Isaacson, John M.
Nannes, Tara L. Reinhart, J. Scott Ballenger, Veronica S. Lewis,
Samuel M. Sipe, Jr., Linda S. Stein, Andrew S. Tulumello, Lucas C.
Townsend, and Kent A. Gardiner.
Anton Metlitsky -- ametlitsky@omm.com -- and Warren D. Postman --
wdp@kellerlenkner.com -- were on the brief for amicus curiae
Chamber of Commerce of the United States of America in support of
defendants-appellees.
MDL 2420: Settlement with IPPs in Antitrust Suit Has Final Approval
-------------------------------------------------------------------
In the case, IN RE: LITHIUM ION BATTERIES ANTITRUST LITIGATION This
Documents Relates to: ALL INDIRECT PURCHASER ACTIONS, Case No.
4:13-md-02420-YGR (MDL) (N.D. Cal.), Judge Yvonne Gonzalez Rogers
of the U.S. District Court for the Northern District of California,
Oakland Division, (i) granted the Indirect Purchaser Plaintiffs
(IPPs)'s motion for final approval of settlements and for
attorneys' fees, reimbursement of expenses, and service awards; and
(ii) granted Objector Gordon Morgan's motion for leave to submit
supplemental authority.
IPPs move for final approval of their settlements with Defendants
Samsung SDI Co., Ltd. and Samsung SDI America, Inc., TOKIN Corp.,
Toshiba Corp., and Panasonic Corp., Panasonic Corp. of North
America, Sanyo Electric Co., Ltd., and Sanyo North America Corp.
On March 11, 2019, the Court directed notice to the class regarding
the SDI, TOKIN, Toshiba, and Panasonic/Sanyo settlements, granting
preliminary approval of these settlements, provisionally certifying
the settlement class, and ordering dissemination of notice to class
members.
The class administrator provided notice in accordance with the
Court's order. Only 10 class members requested exclusion from the
class, and a total of three objections were filed. The settlements
will result in the recovery of $49 million for the IPP class.
Under the proposed schedule, the class members could submit claims
until July 19, 2019, after which time the settlement funds are to
be distributed in accordance with the Court's order.
The proposed settlements resolve all claims against the Settling
Defendants stemming from the alleged conspiracy to restrain
competition for lithium-on batteries ("LIBs"). The settlement
class is defined as all persons and entities who, as residents of
the United States and during the period from Jan. 1, 2000 through
May 31, 2011, indirectly purchased new for their own use and not
for resale one of the following products which contained a
lithium-ion cylindrical battery manufactured by one or more
Defendants or their coconspirators: (i) a portable computer; (ii) a
power tool; (iii) a camcorder; or (iv) a replacement battery for
any of these products.
Under the proposed settlements, the Settling Defendants will pay a
total of $49 million in cash: SDI will pay $39.5 million, TOKIN
will pay $2 million, Toshiba will pay $2 million, and
Panasonic/Sanyo will pay $5.5 million. The settlement funds are
non-reversionary to the Settling Defendants. Inclusive of the
settlements previously approved between IPPs and other Defendants
in the case, IPPs have secured a total of $113.45 million in
settlement funds for the IPP class.
Each Settlement Agreement provides that upon final approval and
entry of judgment, the class members will release state and federal
law claims against the Settling Defendants relating to purchases of
lithium-ion batteries or products containing lithium-ion batteries
up through May 31, 2011. The proposed settlement class includes
only purchasers of portable computers, power tools, camcorders, and
replacement batteries, consistent with the class for which IPPs
originally sought certification. As to these settlement class
members, the Settlement Agreements will release all antitrust
claims based on all lithium-ion battery types (i.e., cylindrical,
prismatic, and polymer batteries) and additional products (e.g.,
mobile phones, smart phones, cameras, digital video cameras, and
digital audio players), consistent with the scope of claims
originally pleaded.
IPPs will distribute the settlement funds in two steps. First, 90
of the settlement funds will be allocated toward the Class Members
who are residents from so-called Illinois Brick repealer states,
and the remaining 10 percent will be allocated toward the Class
Members who are residents of non-repealer states. Second, within
each allocation, the funds will be distributed pro rata to
claimants based on the total number of covered products purchased
from Jan. 1, 2000, through May 31, 2011. Should a balance remain
after distribution to the class (whether by reason of tax refunds,
uncashed checks, or otherwise), those funds will escheat to federal
or state governments. Accordingly, no settlement funds will revert
to the Settling Defendants.
Three individuals have filed objections to the fairness of the
settlements, including the attorneys' fees sought -- Michael Frank
Bednarz, Gordon Morgan, and Christopher Andrews. While the Court
has considered the objections it finds none of them to be
substantial.
The matter comes before the Court on the motions of the IPPs for
final approval of settlements and for attorneys' fees,
reimbursement of expenses, and service awards. A hearing on these
motions was held on July 16, 2019. Subsequently, IPPs submitted a
supplemental brief addressing questions raised by the Court at the
hearing, and objector Gordon Morgan, joined by objector Michael
Frank Bednarz, filed a motion for leave to submit supplemental
authority.
IPPs move the Court for an award of attorneys' fees, expenses, and
class representative awards as follows: (1) an additional award of
$29.54 million in attorneys' fees (i.e., $34,035,000 minus the
$4,495,000 the Court already awarded as interim attorneys' fees),
which is equal to 30% of the common fund of all settlements reached
in the case ($113.45 million); (2) additional reimbursement for
expenses incurred in connection with this litigation totaling
$5,891,547.34 ($6,751,735.84 minus the $860,188.50 already awarded
by the Court in the Interim Award); (3) service awards for each of
the class representatives -- $10,000 for each of the 21 individual
class representatives and $25,000 for each of two governmental
entity class representatives; and (4) additional class settlement
administration costs up to $10,000.
Judge Rogers has carefully reviewed and considered the record in
the matter, including: the memoranda and supporting declarations
submitted in support of the motions and the exhibits submitted
therewith; the objections submitted to the Court by Gordan Morgan,
Michael Frank Bednarz, and Christopher Andrews; IPPs' responses to
those objections; the supplemental filing of IPPs; and the
supplemental authority submitted by Morgan. Good cause appearing,
she finds that the proposed settlements are fair, reasonable, and
adequate, and that they should be approved.
She (i) certified the class for settlement purposes under Rule
23(e). Pursuant to Rule 23(g), (ii) appointed Hagens Berman Sobol
Shapiro LLP, Lieff Cabraser Heimann & Bernstein, LLP, and Cotchett,
Pitre & McCarthy, LLP as the Class Counsel. At the outset of this
action, the Court appointed these firms as Interim Co-Lead Counsel
for IPPs after a competitive application and in-court vetting
process. Considering counsel's work in the action, their
collective expertise and experience in handling similar actions,
and the resources they have committed to representing the class,
the Judge appointed them as the class counsel for the settlement
class under Rule 23(g)(1).
The Judge awarded the Class Counsel the amount of $29,334,176.00 in
attorneys' fees ($33,829,176 minus the $4,495,000 from the Interim
Award), together with a proportional share of interest earned on
the Settlement Fund for the time period until dispersed to the
Class Counsel. The Co-Lead Class Counsel will allocate the fees
and reimbursement of expenses among themselves and supporting
counsel in a fair and equitable manner that, in the Co-Lead Class
Counsel's good-faith judgment, reflects each firm's contribution to
the institution, prosecution, and resolution of the litigation.
The Class Counsel will be reimbursed for their out-of-pocket
expenditures in the amount of $5,891,547.34. The Judge finds that
these expenses are fair and reasonable.
The Judge finds the service awards appropriate in the circumstances
of the long-running litigation. The class representatives were
awarded $1,500 in the Interim Award. Therefore, an additional
$225,500 ($8,500 for each of the 21 individual class
representatives and $23,500 for each of two governmental entity
class representatives) will be distributed from the common
settlement fund.
The Court previously approved payment of taxes, tax expenses,
notice, and administrative costs as set forth in the Settlement
Agreements. The Administrator has estimated that there will be a
need for up to an additional $10,000 to pay for future costs of
distribution, including issuance of checks. The Judge approves
IPPs' request to pay up to $10,000 to pay these costs from the
settlement fund.
Based upon the foregoing, Judge Rogers approved the proposed
settlements. IPPs' counsel will be paid an award of $29,334,176.
Together with the Interim Award of $4,495,000, the total amount of
$33,829,176 represents a fair and reasonable attorneys' fee to be
paid from the $113.45 million settlement fund and constitutes just
under 30% of the total fund. IPPs will be reimbursed expenses from
the settlement fund in the amount of $5,891,547.34 ($6,751,735.84
minus the $860,188.50 already awarded by the Court in the Interim
Award). The class representatives will be paid additional service
awards of $225,500, representing $8,500 for each of the 21
individual class representatives and $23,500 for each of two
governmental entity class representatives. Along with the Court's
Interim Award, this constitutes a service of award of $10,000 for
each individual class representative and $25,000 for each
governmental entity class representative. The class administrator
will be paid additional administrative costs up to $10,000 from the
settlement fund. IPPs are directed to submit a proposed form of
judgment within five days of entry of the Order.
A full-text copy of the Court's Aug. 16, 2019 Order is available at
https://is.gd/94nOf5 from Leagle.com.
Kevin Young, Plaintiff, represented by Jeff D. Friedman --
jefff@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP.
Kevin Young, Plaintiff, represented by George W. Sampson, Hagens
Berman Sobol Shapiro LLP, Jason Allen Zweig -- jasonz@hbsslaw.com
-- Hagens Berman Sobol Shapiro LLP, Shana E. Scarlett --
shanas@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP & Steve W.
Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP,
pro hac vice.
Bradley Seldin, Plaintiff, represented by Jeff D. Friedman,
Hagens Berman Sobol Shapiro LLP, George W. Sampson, Hagens Berman
Sobol Shapiro LLP, Jason Allen Zweig, Hagens Berman Sobol Shapiro
LLP, Shana E. Scarlett, Hagens Berman Sobol Shapiro LLP & Steve
W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice.
Bruce Sterman, Plaintiff, represented by Jeff D. Friedman, Hagens
Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol
Shapiro LLP, pro hac vice.
Charles Carte, Plaintiff, represented by Guido Saveri --
guido@saveri.com -- Saveri & Saveri, Inc., Brian P. Murray --
bmurray@glancylaw.com -- Glancy Prongay & Murray LLP, Cadio R.
Zirpoli -- cadio@saveri.com -- Saveri & Saveri, Inc., David Yau-
Tian Hwu -- dhwu@saveri.com -- Saveri and Saveri Inc., Geoffrey
Conrad Rushing -- mheaphy@saveri.com -- Saveri & Saveri Inc.,
Gregory Bradley Linkh -- glinkh@glancylaw.com -- Glancy Prongay &
Murray LLP, Lee Albert -- lalbert@glancylaw.com -- Glancy Prongay
& Murray LLP, Lisa Maria Saveri -- lisa@saveri.com -- Saveri &
Saveri Inc., Richard Alexander Saveri -- rick@saveri.com --
Saveri and Saveri Inc, Richard Alexander Saveri, Saveri & Saveri,
Inc., Susan Gilah Kupfer -- skupfer@glancylaw.com -- Glancy
Prongay & Murray LLP & Todd Anthony Seaver, Berman Tabacco.
Brian Hanlon, Plaintiff, represented by Brent W. Johnson --
bjohnson@cohenmilstein.com -- Cohen Milstein Sellers and Toll
PLLC, Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, Kit A.
Pierson -- kpierson@cohenmilstein.com -- Cohen Milstein Sellers
and Toll PLLC & Laura M. Alexander --
lalexander@cohenmilstein.com -- Cohen Milstein Sellers and Toll.
Nichole M. Gray, Plaintiff, represented by Guido Saveri, Saveri &
Saveri, Inc., Aaron James Broussard, Broussard and Hart LLC,
David Yau-Tian Hwu, Saveri and Saveri Inc., Douglas A. Millen --
dmillen@fklmlaw.com -- Freed Kanner London & Millen LLC, Lisa
Maria Saveri, Saveri & Saveri Inc., Richard Alexander Saveri,
Saveri and Saveri Inc, Richard Kirchner, Bonsignore & Brewer,
Richard Alexander Saveri, Saveri & Saveri, Inc., Robert J.
Bonsignore -- rbonsignore@class-actions.us -- Bonsignore Trial
Lawyers, PLLC & Todd Anthony Seaver -- tseaver@bermantabacco.com
-- Berman Tabacco.
Woodrow Clark, II, Plaintiff, represented by Brian Joseph Barry -
- bribarry1@yahoo.com -- Law Offices of Brian Barry, James E.
Cecchi, Carella Byrne, Lindsey H. Taylor --
LTaylor@carellabyrne.com -- Carella Byrne & Todd Anthony Seaver,
Berman Tabacco.
Rebecca Cervenak, Plaintiff, represented by William James Doyle,
II -- bill@doylelowther.com -- Doyle Lowther LLP.
John Russo, Plaintiff, represented by William James Doyle, II --
jim@doylelowther.com -- Doyle Lowther LLP, James Robert Hail,
Doyle Lowther & Katherine S. DiDonato, Shustak Reynolds &
Partners, P.C..
LG Chem Ltd., Defendant, represented by Benjamin Edward Waldin --
bwaldin@eimerstahl.com -- Eimer Stahl LLP, Brian Yanlang Chang --
bchang@eimerstahl.com -- Eimer Stahl LLP, Jungmin Lee --
jlee@eimerstahl.com -- Eimer Stahl LLP, Nathan P. Eimer --
neimer@eimerstahl.com -- Eimer Stahl LLP & Vanessa Greenwood
Jacobsen -- vjacobsen@eimerstahl.com -- Eimer Stahl LLP.
LG Chem America, Inc, Defendant, represented by Benjamin Edward
Waldin, Eimer Stahl LLP, Brian Yanlang Chang, Eimer Stahl LLP,
Jungmin Lee, Eimer Stahl LLP, Nathan P. Eimer, Eimer Stahl LLP &
Vanessa Greenwood Jacobsen, Eimer Stahl LLP.
Samsung SDI America Inc, Defendant, represented by John Roberti -
- john.roberti@allenovery.com -- Allen & Overy LLP, Bradley
Pensyl -- bradley.pensyl@allenovery.com -- Allen and Overy LLP,
Jacob S. Pultman -- jacob.pultman@allenovery.com -- Allen Overy
LLP, Matthew R. Boucher -- matthew.boucher@allenovery.com --
Allen and Overy LLP, Michael S. Feldberg --
michael.feldberg@allenovery.com -- Allen and Overy LLP & Nneka
Ukpai -- Nneka.Ukpai@AllenOvery.com -- Allen and Overy LLP.
Hitachi Ltd., Defendant, represented by Craig P. Seebald --
cseebald@velaw.com -- Vinson & Elkins LLP, Elliott J. Joh --
elliott.joh@squirepb.com -- Vinson and Elkins LLP & Matthew J.
Jacobs -- mjacobs@velaw.com -- Vinson & Elkins LLP.
Hitachi Maxell, Ltd, Defendant, represented by Christopher Walter
James -- cjames@velaw.com -- Vinson and Elkins LLP, Craig P.
Seebald, Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins
LLP, Jason Alan Levine -- jlevine@velaw.com -- Vinson Elkins LLP,
Jeremy C. Keeney -- jkeeney@velaw.com -- Vinson and Elkins
L.L.P., Lindsey Robinson Vaala -- lvaala@velaw.com -- Matthew J.
Jacobs, Vinson & Elkins LLP & Thomas William Bohnett --
tbohnett@velaw.com -- Vinson and Elkins L.L.P..
Maxell Corporation of America, Defendant, represented by
Christopher Walter James, Vinson and Elkins LLP, Craig P.
Seebald, Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins
LLP, Jason Alan Levine, Vinson Elkins LLP, Jeremy C. Keeney,
Vinson and Elkins L.L.P., Lindsey Robinson Vaala, Matthew J.
Jacobs, Vinson & Elkins LLP & Thomas William Bohnett, Vinson and
Elkins L.L.P..
Samsung SDI Co Ltd, Defendant, represented by John Roberti, Allen
& Overy LLP, Bradley Pensyl, Allen and Overy LLP, Jacob S.
Pultman, Allen Overy LLP, Matthew R. Boucher, Allen and Overy
LLP, Michael S. Feldberg, Allen and Overy LLP & Nneka Ukpai,
Allen and Overy LLP.
Maxwell Corporation of America, Defendant, represented by Thomas
William Bohnett, Vinson and Elkins L.L.P..
Hitachi Maxell Corporation of America, Defendant, represented by
Lindsey Robinson Vaala.
Toshiba America Electronic Components Inc, Defendant, represented
by Christopher M. Curran -- ccurran@whitecase.com -- White & Case
& J. Frank Hogue -- fhogue@whitecase.com -- White Case LLP.
MDL 2472: Court Grants in Part EPPs' Class Certification Bid
-------------------------------------------------------------
The Hon. William E. Smith granted in part and denied in part the
End-Payor Plaintiffs' Motion for Class Certification in the
multidistrict litigation titled IN RE LOESTRIN 24 FE ANTITRUST
LITIGATION, MDL No. 1:13-md-02472-WES-PAS (D.R.I.).
For reasons that will be fully explained in a forthcoming Opinion,
the Court granted in part and denied in part the Motion, insofar as
the Court certifies a Third-Party Payor ("TPP") Class, but does not
certify an EPP class inclusive of consumers.
In the forthcoming Opinion, the Court will rule on the Defendants'
Motion to Exclude the Opinion and Testimony of EPPs' Expert Gary L.
French; EPPs' Motion to Exclude the Testimony and Opinions of James
W. Hughes, Ph.D.; Defendants' Motion to Exclude the Opinions and
Testimony of Indirect Purchaser Plaintiffs' Experts Eric Miller,
Laura Craft, and Myron Winkelman; EPPs' Motion to Exclude the
Opinions and Testimony of Mr. Timothy Kosty and Dr. Bruce Strombom;
and Defendants' Renewed Motion to Dismiss and Motion for Judgment
on the Pleadings as to Claims in EPPs' Second Amended Consolidated
Class Action Complaint.
The Court certifies the following "TPP Class":
All Third-Party Payor entities in the United States and its
territories that indirectly purchased, paid and/or provided
reimbursement for some or all of the purchase price for
Loestrin 24 Fe and/or its AB-rated generic equivalents in
any form, and/or Minastrin 24 Fe and/or its AB-rated generic
equivalents in any form, for consumption by their members,
employees, insureds, participants, or beneficiaries, other
than for resale, during the period September 1, 2009 through
and until the anticompetitive effects of Defendants'
unlawful conduct cease. For purposes of the Class
definition, entities "purchased" Loestrin 24 Fe, Minastrin
24 Fe, or their generic equivalents if they indirectly
purchased, paid and/or reimbursed for some or all of the
purchase price.
Expressly excluded from the TPP Class are these entities:
a. Defendants and their subsidiaries, or affiliates;
b. All federal or state governmental entities, excluding
cities, towns or municipalities with self-funded
prescription drug plans;
c. All entities who purchased Loestrin 24 Fe or its AB-rated
generic equivalent, and/or Minastrin 24 Fe or its AB-rated
generic equivalent, for purposes of resale or directly from
Defendants or their affiliates;
d. Fully insured health plans (i.e., Plans that purchased
insurance from another third-party payor covering 100% of
the Plan's reimbursement obligations to its members); and
e. Pharmacy Benefit Managers.
The Court also designates the named TPPs (A.F. of L. - A.C.G.
Building Trades Welfare Plan, Allied Services Division Welfare
Fund, City of Providence, Rhode Island, Electrical Workers 242 and
294 Health & Welfare Fund, Fraternal Order of Police, Fort
Lauderdale Lodge 31, Insurance Trust Fund, Laborers International
Union of North America, Local 35 Health Care Fund, Painters
District Council No. 30 Health & Welfare Fund, Teamsters Local 237
Welfare Benefits Fund, United Food and Commercial Workers Local
1776 & Participating Employers Health and Welfare Fund) as Class
Representatives; appoints Motley Rice LLC, Miller Law LLC, Hilliard
& Shadowen LLP, and Cohen Milstein Sellers & Toll PLLC as Co-Lead
Class Counsel; and appoints Motley Rice LLC as Liaison Counsel.
Judge Smith also directs counsel for the TPP Class to file with the
Court, within three business days, a chart indicating which causes
of action in which states they continue to press at this juncture.
The Court asks counsel, in formulating this chart, to be
particularly mindful that they may be ineligible to bring certain
state-law claims because they are not natural persons, and that
facilitating the narrowing of claims where required by law will
help ensure that this case may commence trial on January 6, 2020,
as scheduled.[CC]
MERCK & CO: 3d Cir Reverses Dismissal of Securities Fraud Suit
--------------------------------------------------------------
The United States Court of Appeals, Third Circuit, issued an
Opinion reversing the District Court's judgment granting
Defendants' Motion to Dismiss in the case captioned NORTH SOUND
CAPITAL LLC; NORTH SOUND LEGACY INTERNATIONAL; NORTH SOUND LEGACY
INSTITUTIONAL; UNITED FOOD COMMERCIAL WORKERS LOCAL 500 PENSION
FUND; COLONIAL FIRST STATE INVESTMENTS LTD.; CFSIL-CFS WHOLESALE
INDEXED GLOBAL SHARE FUND; CFSIL-COMMONWEALTH GLOBAL SHARES FUND 4;
CFSIL-COMMONWEALTH SPECIALIST FUND 13; CFSIL WHOLESALE GEARED
GLOBAL SHARED FUND; CFSIL ATF CMLA INTERNATIONAL SHARE FUND;
CFSIL-COMMONWEALTH GLOBAL SHARES FUND 6; CFSIL COMMONWEALTH SHARES
FUND 2; CFSIL-CFS WHOLESALE ACADIAN GLOBAL EQUITY FUND; CFSIL-CFS
WHOLESALE GLOBAL HEALTH & BIOTECHNOLOGY FUND; CFSIL-CFS WHOLESALE
GLOBAL SHARE FUND, Appellants, v. MERCK & CO., INC. formerly known
as SCHERING-PLOUGH CORPORATION; MERCK SCHERING-PLOUGH
PHARMACEUTICALS; MSP DISTRIBUTION SERVICES (C) LLC.; MSP SINGAPORE
COMPANY LLC; FRED HASSAN; CARRIE S. COX GIC PRIVATE LIMITED,
Appellant, v. MERCK & CO., INC. formerly known as SCHERING-PLOUGH
CORPORATION; MERCK/SCHERING PLOUGH PHARMACEUTICALS; MSP
DISTRIBUTION SERVICES (C) LLC; MSP SINGAPORE COMPANY LLC; FRED
HASSAN; CARRIE S. COX GIC PRIVATE LIMITED, Appellant, v. MERCK &
CO., INC.; MERCK/SCHERING-PLOUGH PHARMACEUTICALS; MSP DISTRIBUTION
SERVICES (C) LLC; MSP SINGAPORE COMPANY LLC; RICHARD T. CLARK;
DEEPAK KHANNA NORTH SOUND CAPITAL LLC; NORTH SOUND LEGACY
INTERNATIONAL; NORTH SOUND LEGACY INSTITUTIONAL; UNITED FOOD
COMMERCIAL WORKERS LOCAL 1500 PENSION FUND, Appellants, v. MERCK &
CO., INC.; MERCK/SCHERING-PLOUGH PHARMACEUTICALS; MSP DISTRIBUTION
SERVICES (C) LLC; MSP SINGAPORE COMPANY LLC; RICHARD T. CLARK;
DEEPAK KHANNA. Nos. 18-2317, 18-2318, 18-2319, 18-2320. (3rd
Cir.)].
Faced with enormous losses, investors soon filed separate putative
class actions in the District of New Jersey against Merck and
Schering-Plough, alleging each made numerous material
misrepresentations about Vytorin and Zetia.
The sixteen plaintiffs in these consolidated appeals fell within
the class definition alleged and eventually certified in the class
actions against Merck and Schering-Plough. But they were not named
plaintiffs, and neither they nor their counsel participated in the
class-action proceedings. After the District Court certified the
class actions, they opted out on the last day and declined to opt
in to participate in the settlement agreements.
District Court entered the final judgments in the class-action
suits, these opt-out investors, Plaintiffs, brought their own
actions against Merck and Schering-Plough, which had since merged.
Their complaints track, sometimes verbatim, those filed in the
class actions, except they added a fraud claim under New Jersey
common law.
In their first motion to dismiss, Merck did not suggest that SLUSA
precluded Plaintiffs' claims, even though that posed a threshold
jurisdictional issue. Instead, Merck contended that their federal
claims were barred by the Securities Exchange Act's statute of
repose and that their state-law claims failed to plausibly allege
actual reliance.
The District Court rejected both arguments, but in an interlocutory
appeal, the Court reversed the District Court's allowance of
Plaintiffs' federal claims after the Supreme Court held that
American Pipe tolling does not extend to statutes of repose. The
Court’s decision left Plaintiffs with only their state-law fraud
claims.
On remand, Merck again moved for dismissal of Plaintiffs' state-law
claims, arguing for the first time that SLUSA precluded them
because the class actions and the opt-out suits were joined,
consolidated, or otherwise proceeding as a single action for any
purpose.
In its opinion, the District Court recognized that Merck's argument
tests the limits of SLUSA's preclusive scope and it does not appear
that any prior decision has addressed this issue.
Nevertheless, the District Court concluded that Plaintiffs' claims
were barred under SLUSA because the Individual Actions and the
Vytorin Class Actions have proceeded as a single action.
Considering the statutory text, the District Court inferred that
because Congress did not explicitly exempt opt-out suits from
SLUSA, it necessarily envisioned the aggregation of opt-out suits
with related class actions under SLUSA's mass-action provision.
The District Court also concluded that SLUSA's legislative history
required it to construe the definition of a covered class action'
broadly. And it relied on several district court decisions that,
building upon each other, have espoused increasingly capacious
interpretations of the mass-action provision.
SLUSA's definition of a covered class action comprises two parts.
The first part, which all agree does not apply here, encompasses
any lawsuit that seeks to recover damages for more than 50 persons
or on a representational basis.
The second part, which the Court shall dub the mass-action
provision, covers lawsuits that: (1) are filed in or pending in the
same court (2) involve common legal or factual questions (3) seek
damages for more than 50 persons and (4) joined, consolidated, or
otherwise proceed as a single action for any purpose.
Because the total number of investors in Plaintiffs' lawsuits does
not exceed fifty, SLUSA's mass-action provision does not apply
unless their individual opt-out lawsuits and the settled class
actions together satisfy the statutory definition.
On that front, Plaintiffs do not dispute that the class actions and
their individual lawsuits were both filed in the District of New
Jersey and involve substantially the same facts. Thus, this appeal
turns on the fourth prong of the mass-action provision: whether the
class actions and these subsequent opt-out suits were joined,
consolidated, or otherwise proceeded as a single action for any
purpose.
The opt-out plaintiffs insist that their individual actions do not
satisfy this single-action requirement because they have never
proceeded as a single action with the class actions. They argue
both that their suits postdated the resolution of the class actions
and that their suits were never coordinated with the class actions.
By contrast, Merck interprets the single-action requirement to
require a mere functional relationship between two suits, an
amorphous standard so broad and flexible that it would seemingly
embrace every suit that happens to share similar substantive
allegations.
The Court concludes Merck's strained reading contravenes both the
plain text and underlying constitutional principles. Instead, as
the Court explain below (A) some actual coordination is required to
constitute a single action and (B) there was no such coordination
between Plaintiffs' opt-out suits and the prior class actions.
The Single-Action Requirement Requires Some Actual Coordination
The Phrase Joinder, Consolidation, or Otherwise Proceeding as a
Single Action Plainly Demands Coordination
The Court begins, as the Court must, with the mass-action
provision's text. To qualify as a mass action, the lawsuits must
be joined, consolidated, or otherwise proceed as a single action
for any purpose. The Court first considers the meaning of joined
and consolidated before turning to the phrase otherwise proceed as
a single action.
In law, the verbs join and consolidate share very similar meanings.
Join means to combine or unite in time, effort, action, while
consolidate means to unite or unify into one mass or body. When
used to refer to the joinder or consolidation of lawsuits, these
words typically connote the uniting of several actions, sometimes
for all purposes, while other times just for pretrial purposes.
The Court finds these authorities instructive in ascertaining what
Congress meant by the phrase otherwise proceed as a single action
for any purpose. Merck scrounges up a couple of dictionary
definitions defining proceed as to come forth from a source or to
continue after pause or interruption.
But the Court is not persuaded that Congress meant the word proceed
in either sense: The come forth from a single source meaning does
not fit at all because the provision neither uses the preposition
from nor does it identify any source from which the lawsuits must
arise. The continue after pause or interruption definition comes
closer to the meaning here, but it too does not naturally relate to
a single action, much less joinder or consolidation. Instead, we
conclude Congress intended the legal definition of proceed, which
consistent with the meaning of joinder and consolidation in Black's
Law Dictionary and Rule 42(a) means to carry on a legal action or
process.
A corollary of our reading is that, as a general matter, cases
cannot proceed as a single action unless they coincide for some
period. If two cases never overlap, a court cannot combine them for
management of a common stage of the proceedings or for resolution
of a common question. Thus, while the Court cannot rule out some
extraordinary exception, the Court is hard-pressed to imagine any
scenario in which two cases that never overlap could function as a
single lawsuit on any dimension, as the mass-action provision
requires. To be clear, the Court do not read the single action
requirement to mean that cases must be coextensive with one another
but rather that they be at least partially coordinated, which would
seem invariably to require that they coincide for some period.
This common-sense interpretation draws further support from the
time-honored canon ejusdem generis, which teaches that where
general words follow an enumeration of two or more things, those
successive words refer only to persons or things of the same
general kind or class specifically mentioned. For the canon to
adhere, the preceding words in the list must share a common
attribute.
The mass-action provision presents a textbook case for applying
ejusdem generis. The preceding verbs joined and consolidated are
nearly synonymous when used to refer to the union of lawsuits, and
otherwise signals a commonality between those preceding words and
the phrase proceed as a single action. The meaning of join and
consolidate therefore illustrates what Congress meant by the phrase
otherwise proceed as a single action.
Merck equally misses the mark in contending that the single-action
requirement must receive a counter-textual construction to avoid
rendering the mass-action provision's first prong the separate
requirement that the suits be filed in or pending in the same
court, superfluous. By reaching suits filed in or pending in a
court, SLUSA's mass-action provision addresses both actions that
originate in a particular court and those that are transferred or
removed there. If anything, Merck disregards the canon against
superfluity by conflating the single-action requirement with
SLUSA's second prong the requirement that the suits share common
questions of law or fact.
At bottom, notwithstanding Merck's linguistic gymnastics, the
single-action requirement cannot be contorted enough to cover
functional coordination, as opposed to actual coordination and, as
a general matter, there is no occasion for actual coordination if
suits never overlap in time.
SLUSA's Broad-Construction Principle Is Unavailing
With so little in the text to support its interpretation, Merck
leans heavily on the premise that SLUSA should receive a broad
interpretation to ensure the uniform application of federal fraud
standards.
This argument is doubly flawed.
First, despite entreaties, Congress has repeatedly declined the
invitation in the Securities Act, the Exchange Act, the PSLRA, and
SLUSA itself to broadly pre-empt state-law securities claims. In
enacting SLUSA, Congress simply denied plaintiffs the right to use
the class-action device to vindicate certain claims, it chose not
to actually pre-empt any state cause of action. Merck's
interpretation would upend Congress's measured approach. Any
serious allegations of securities fraud will likely prompt the
filing of at least one putative class-action lawsuit. Under Merck's
reading, the mere existence of a class action would preclude
individual plaintiffs from bringing state-law claims, even if
individual plaintiffs do not participate at all in the class
proceedings and, when presented with the opportunity, opt out of
the class action. As a result, Merck's proposed construction would
foster the complete preemption of state-law securities claims
precisely what Congress chose not to do in adopting SLUSA.
Second, and more importantly, as the Supreme Court has recently
admonished lower courts, the broad-construction canon does not
render SLUSA somehow magically impervious to traditional tools of
statutory construction. Because no legislation pursues its purposes
at all costs, courts have no license to disregard clear language
based on an intuition that Congress must have intended something
broader. And consistent with that admonition, we will not read the
mass-action provision in a most improbable way just to make the
world of securities litigation more consistent or pure.
In short, Merck's insistence that SLUSA should be broadly
interpreted for policy reasons is unavailing in the face of the
statutory text.
Merck's Expansive Reading Raises Constitutional Concerns
Our reading of the statute also ensures that it comports with the
Constitution, for it would raise serious due process concerns if
Congress conditioned the extinguishment of opt-out investors'
state-law claims on whether an unaffiliated party had elected to
bring a putative class action. To comport with the Fifth and
Fourteenth Amendments, every absent class member must be provided
with an opportunity to remove himself from a class action seeking
predominantly damages.
That is, at least where damages are at stake, the class-action
device passes constitutional scrutiny only because putative class
members can easily extricate themselves from the proceedings. Thus,
to the extent that a policy burdens that opt-out right or, worse
yet, saps it of meaning, it would raise serious constitutional
concerns. Thankfully, at least in this case, the mass-action
provision evinces no intent to press these constitutional
boundaries.
In sum, we conclude that two suits are not joined, consolidated, or
otherwise proceeding as a single action for any purpose, unless the
actions are somehow combined, in whole or in part, for case
management or for resolution of at least one common issue.
Plaintiffs' Opt-Out Suits Never Proceeded as a Single Action with
the Prior Class Actions
Applying our view of the single-action provision presents no
difficulties. In finding the suits precluded, the District Court
relied on the mere fact that the opt-out investors happened to meet
a class definition, filed complaints resembling their class
counterparts, complied with certain local rules requiring them to
identify the class actions as related, and predicted that
defendants would not have to duplicate discovery. But Plaintiffs'
suits and the prior class actions never existed at the same time.
So it comes as no surprise that the purported indicia of
coordination, even taken together, do not suggest actual
coordination.
It is axiomatic that an unnamed class member is not a party to the
class-action litigation before the class is certified. For class
actions seeking predominantly damages, Rule 23 adds that putative
class members do not become party plaintiffs until the time to opt
out has elapsed. If an absent class member exercises this right,
she can litigate herself another time or choose to not litigate at
all. By guaranteeing putative class members an unqualified right to
exclude themselves, Rule 23 honors our deep-rooted historic
tradition that everyone should have his own day in court.
Thus, if a plaintiff has timely opted out of a class action, the
mere fact that he satisfies a class definition does not suggest
coordination.
Merck's intimation that any benefit satisfies the single-action
requirement, besides lacking a foothold in the statute proves too
much. Merck places great weight on parallels between Plaintiffs'
pleading and the class-action complaints, but Plaintiffs would have
received a benefit even if they had completely rewritten their
pleadings or just read the pleadings once before conducting their
own investigation. Only a hermetically sealed opt-out investor
could possibly escape the all-encompassing sweep of Merck's
proposed atextual rule.
Finally, neither Plaintiffs' identification of the class actions as
related nor their statements before the District Court give us
pause. Under the District of New Jersey's Local Rules, Plaintiffs
had to identify the class actions as related because their suits
involved the same subject matter as the class actions. While such a
filing could eventually result in coordination with another pending
action, merely identifying the other actions as related has no such
effect. And the Plaintiffs' statements before the District Court,
made to dissuade it from certifying its first dismissal order for
interlocutory review, simply played down the burden that their
suits would pose, they did not insinuate that the opt-out
plaintiffs had collaborated with the class-action plaintiffs.
The Court conclusion does not conflict with any circuit decision to
have considered the single-action requirement. Beyond these
authorities, the parties devote much of their briefing on appeal to
various district court decisions. The Court do not feel compelled
to dwell on them, because, as the District Court recognized, none
deemed the single-action requirement satisfied on such meager
facts. But we hasten to note our concern with one perceptible
trend: From a broad but plausible interpretation of the
single-action requirement, some reasoning in these decisions has
become increasingly unmoored from the statutory text. Today, the
Court steers this jurisprudence towards safer waters.
By its terms, SLUSA does not disturb the right to opt out, and the
Court refuses to abandon traditional tools of statutory
interpretation and common sense to give Merck what Congress has
not. The Court will therefore reverse the District Court's
dismissal order and remand for further proceedings consistent with
this opinion.
A full-text copy of the Third Circuit's September 12, 2019 Opinion
is available at https://tinyurl.com/yy6baqfx from Leagle.com.
Daniel Hume [ARGUED], Karina Kosharskyy , Ira M. Press , Meghan J.
Summers , Kirby McInerney , 250 Park Avenue Suite 820 New York, NY
10177, Counsel for Appellants.
Daniel J. Juceam , Daniel J. Kramer [ARGUED] Theodore V. Wells, Jr.
, Paul Weiss Rifkind Wharton & Garrison 1285 Avenue of the Americas
New York, NY 10019, Counsel for Appellees.
MIDWAY INDUSTRIES: $5.3K Settlement in Shepardson Suit Has Approval
-------------------------------------------------------------------
In the case, DALE SHEPARDSON, Individually and on Behalf of All
Others Similarly Situated Plaintiff, v. MIDWAY INDUSTRIES, INC.;
TOOL STEEL SERVICE, INC; and TOOL STEEL SERVICE OF CALIFORNIA,
INC., Defendants, Case No. 3:18-CV-3105 (W.D. Ark.), Judge Timothy
L. Brooks of the U.S. District Court for the Western District of
Arkansas, Harrison Division, granted the parties' Amended Joint
Motion for Stipulated Collective Action Settlement and Settlement
Approval.
The parties previously requested Court approval of a settlement
agreement on March 6, 2019. However, the Court found the parties'
proposed settlement deficient in a number of ways and denied the
motion in a Memorandum Opinion and Order issued on July 1, 2019.
In that Order, the Court explained its concerns regarding the
settlement in some detail, including the following: that the
proposed settlement agreement contained insufficient opt-in
procedures; that the proposed settlement agreement did not
adequately advise class members of their rights concerning Rule 23
claims made pursuant to the Arkansas Minimum Wage Act ("AMWA");
that the proposed settlement agreement's proposal for a common
recovery fund did not properly disaggregate Fair Labor Standards
Act ("FLSA") claims from AMWA claims; and that the Court could not
reasonably determine, given the information provided by the parties
at the time, whether the proposed settlement fully compensated all
of the settlement class members for their claims or whether the
settlement instead constituted a compromise of the class members'
claims.
It appears the parties took the Court's criticisms to heart and
have submitted a revised settlement agreement for approval. Upon
review of the revised agreement, Judge Brooks is satisfied that the
Court's previous concerns have now been addressed. First, the
revised settlement agreement no longer attempts to settle claims on
a class-wide basis for purported violations of the AMWA pursuant to
a Rule 23 "opt-out" class action procedure. Second, the parties
have revised the process by which the settlement class members may
opt into the class. Third, the parties have calculated the total
amount of unpaid overtime premiums to be paid to the 16 known class
members -- plus the Plaintiff -- and have included in that
calculation an amount of liquidated damages pursuant to the FLSA.
Accordingly, the Defendants have agreed to a class settlement fund
of $5,344.42, which represents a full, uncompromised settlement
amount. Finally, the parties have separately negotiated the amount
of the class counsel's attorney's fees, and the payment of class
counsel's fees will not impair or reduce the Plaintiff's or the
class's recovery.
Based on the foregoing, Judge Brooks granted the Amended Joint
Motion for Stipulated Collective Action Settlement and Settlement
Approval. He certified a collective action pursuant to the FLSA or
settlement purposes only, with the settlement class defined as all
current and former employees of Midway who received paid time off
in exchange for working overtime hours between Oct. 5, 2015, and
the date of execution of the Settlement Agreement.
The Judge appointed Josh Sanford of Sanford Law Firm, PLLC, to
serve as the class counsel. As per the parties' Settlement
Agreement, the Defendants are to pay the class counsel the total
sum of $9,900 for attorney's fees, costs, and expenses related to
the lawsuit. This payment of fees, costs, and expenses is separate
from the total amount of funds that Defendants agree to pay to the
class in settlement. Consequently, the parties aver that the
amount the class counsel will receive in fees and costs will not
undercut the Plaintiff's or the class' recovery.
The Defendants agree to pay the total sum of $5,344.42 to the class
members in settlement of their claims. They will deliver the
settlement checks to the class counsel after the 90-day opt-in
period specified in the Settlement Agreement has expired. The
Class counsel will then distribute the checks to the class
members.
The Defendants also agree to deliver to the class counsel a
separate check in the amount of $2,000 for Plaintiff Shepardson.
The Plaintiff agrees that this payment will fully resolve any and
all claims he has separately asserted in the lawsuit against the
Defendants, including his individual claims for wrongful
termination and denial of employment benefits. A separate
settlement agreement will be executed between the Plaintiff and the
Defendants concerning his non-wage-and-hour claims. Accordingly,
the Judge dismissed wit prejudice the Plaintiff's separate claims
due to settlement.
The case is closed, but the parties may move to reopen it if some
aspect of the settlement and/or distribution of funds to the
Plaintiff, the class, or the class counsel are not completed or if
Court intervention is otherwise required.
A full-text copy of the Court's Aug. 20, 2019 Opinion and Order is
available at https://is.gd/zgkUoO from Leagle.com.
Dale Shepardson, Individually and on Behalf of All Similarly
Situated, Plaintiff, represented by Josh Sanford --
josh@sanfordlawfirm.com -- Sanford Law Firm PLLC.
Midway Industries, Inc, Tool Steel Service, Inc. & Tool Steel
Service of California, Inc., Defendants, represented by Phil W.
Campbell -- pcampbell@fc-lawyers.com -- Fuqua Campbell, P.A..
MISSISSIPPI: Sec. Hosemann Appeals Decision in Hopkins Class Suit
-----------------------------------------------------------------
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. 19-60678, in the U.S. Court of Appeals
for the Fifth Circuit.
As reported by 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) 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 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.[BN]
Plaintiffs-Appellees - Cross-Appellants DENNIS HOPKINS,
individually and on behalf of a class of all others similarly
situated, et al., are represented by:
Jonathan K. Youngwood, Esq.
Janet A. Gochman, Esq.
SIMPSON, THACHER & BARTLETT, L.L.P.
425 Lexington Avenue
New York, NY 10017-3954
Telephone: (212) 455-2000
E-mail: jyoungwood@stblaw.com
jgochman@stblaw.com
- and -
Nancy Abudu, Esq.
SOUTHERN POVERTY LAW CENTER
150 E. Ponce de Leon Avenue
Decatur, GA 30030
Telephone: (404) 221-4062
E-mail: nancy.abudu@splcenter.org
- and -
Lisa S. Graybill, Esq.
SOUTHERN POVERTY LAW CENTER
201 Saint Charles Avenue
New Orleans, LA 70170
Telephone: (504) 486-8982
E-mail: lisa.graybill@splcenter.org
- 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 Cross-Appellee SECRETARY OF STATE DELBERT
HOSEMANN, in his official capacity, is represented by:
Krissy C. Nobile, Esq.
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 220
Jackson, MS 39205
Telephone: (601) 359-3825
E-mail: knobi@ago.state.ms.us
- and -
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
MITCHELL D BLUHM: Riley Files Class Suit Under FDCPA
----------------------------------------------------
A class action lawsuit has been filed against The Law Offices of
Mitchell D. Bluhm & Associates, LLC. The case is styled as Jocelyn
Riley, individually and on behalf of all others similarly situated,
Plaintiff v. The Law Offices of Mitchell D. Bluhm & Associates,
LLC, CF Medical LLC and John Does 1-25, Defendants, Case No.
1:19-cv-23986-XXXX (S.D. Fla., Sept. 25, 2019).
The docket of the case states the nature of suit as Consumer Credit
filed pursuant to the Fair Debt Collection Act.
The Law Offices of Mitchell D. Bluhm & Associates, LLC is a debt
collection law office in Sherman, Texas.[BN]
The Plaintiff is represented by:
Justin E. Zeig, Esq.
Zeig Law Firm, LLC
3595 Sheridan Street, Suite 103
Hollywood, FL 33021
Tel: (754) 217-3084
Email: justin@zeiglawfirm.com
MONSANTO CO: Final Approval of Settlement in Rawa Suit Affirmed
---------------------------------------------------------------
In the case, Joshua Rawa, on behalf of himself and all others
similarly situated; Elisabeth Martin; Robert Ravencamp; Amy Ward;
Cynthia Davies; Christopher Abbott; Owen Olson; Jeannie A.
Gilchrist; Zachary Sholar; Matthew Myers; John W. Beard, Jr.;
Michael Overstreet, Plaintiffs-Appellees, v. Monsanto Company,
Defendant-Appellee, v. James Migliaccio, Objector-Appellant,
Patrick Sweeney, Objector, Case No. 18-2346 (8th Cir.), Judge
Lavenski Smith of the U.S. Court of Appeals for the Eighth Circuit
affirmed the district court's judgment overruling James
Migliaccio's objection and granting final approval of the
nationwide settlement.
Monsanto manufactures and markets Roundup, a well-known herbicide,
in both concentrate and ready-to-use forms. The class counsel
originally filed the suit in the Central District of California on
behalf of a nationwide class. The court, however, eventually
certified only a California class.
Appellant-Objector Migliaccio was a member of a California class
action against Monsanto that alleged the company used misleading
labeling on its Roundup concentrate herbicide. Following
certification of the California class in the Central District of
California, the class counsel filed the present action in the
Eastern District of Missouri on behalf of a putative class of
consumers from the other 49 states.
The complaint alleged violations of both federal and Missouri laws.
The parties reached a nationwide settlement agreement. The
Central District of California transferred the California action to
Missouri, where Monsanto resides, in order to consolidate the cases
and seek preliminary approval of the nationwide settlement. The
federal district court in Missouri granted preliminary approval of
the settlement and its notice plan.
After the notice period ended, the Plaintiffs filed for final
approval of the settlement. Migliaccio objected to certification
of the nationwide class and to the fairness of the settlement on
several grounds. The district court overruled his objection and
granted final approval.
Migliaccio raises four issues on appeal. First, he challenges the
final approval, arguing that the district court based its fairness
analysis on erroneous facts. Second, he avers the court failed to
uncover ethical conflicts that made class certification
inappropriate. Third, he contends the award of attorneys' fees is
too high. Fourth, he argues the cy pres distribution of funds
remaining in the Common Fund once all expenses are deducted is
inappropriate and should instead be returned to class members.
In response, the class action Plaintiffs argue that Migliaccio
lacks standing to bring the appeal because he could not receive any
benefit from a favorable outcome.
Judge Smith holds the district court did not abuse its discretion
in granting final approval of the settlement. Migliaccio fails to
show that the "grossly inaccurate figures" are flawed and is
unconvincing that the court should have based its analysis on
pre-notice market research estimates rather than a simple,
evidence-based calculation.
Migliaccio has also failed to show how the California class members
have been disadvantaged by their inclusion as members of the
nationwide class. The Judge finds no abuse of discretion in the
district court's refusal to order production of the expert ethics
opinion.
Migliaccio presented his billing record disputes to the district
court at the fairness hearing. In its order, the district court
stated that it had taken both the parties' arguments and the
submitted billing records under "careful consideration" in
determining the fee award. The Judge finds that Migliaccio has
failed to show that the court's decision amounted to an abuse of
discretion. The district court adequately explained the reasons
for its decision, and the result is not obviously unreasonable in
light of the Court's prior case law.
Finally, the Judge holds that the district courts do not rewrite
settlement agreements. The power to approve or reject a settlement
negotiated by the parties before trial does not authorize the court
to require the parties to accept a settlement to which they have
not agreed. Contrary to Migliaccio's characterizations on appeal,
the court did not order the cy pres distribution of the difference
in fees—the terms of the settlement agreement did. While the
settlement agreement must gain the approval of the district judge,
once approved its terms must be followed by the court and the
parties alike. The terms of the settlement agreement are always to
be given controlling effect. Accordingly, the Judge finds no
error.
In light of the foregoing, Judge Smith affirmed the judgment of the
district court.
A full-text copy of the Court's Aug. 20, 2019 Order is available at
https://is.gd/ymIyr0 from Leagle.com.
Peter C. Woods -- petewoods@haar-woods.com -- for
Objector-Appellant.
Sidney W. Jackson, III -- sid@jacksonfosterlaw.com -- for
Plaintiff-Appellee.
Erik L. Hansell -- erik.hansell@huschblackwell.com -- for
Defendant-Appellee.
Kevin J. Dolley -- kevin@dolleylaw.com -- for Plaintiff-Appellee.
Matthew R. Grant -- matt.grant@husch.com -- for
Defendant-Appellee.
Robert William Clore, for Objector-Appellant.
John Joseph Fitzgerald, IV -- tom@jackfitzgeraldlaw.com -- for
Plaintiff-Appellee.
Thomas A. Canova -- tom@jackfitzgeraldlaw.com -- for
Plaintiff-Appellee.
John J. Rosenthal -- jrosenthal@winston.com -- for
Defendant-Appellee.
Scott R. Phillips, for Defendant-Appellee.
Melanie Rae Persinger, for Plaintiff-Appellee.
MONTGOMERY COUNTY, OH: Harrison Sues for Denial of Property Rights
------------------------------------------------------------------
ALANA HARRISON, individually and on behalf of all others similarly
situated v. MONTGOMERY COUNTY, OHIO, Case No. 3:19-cv-00288-TMR
(S.D. Ohio, Sept. 12, 2019), arises under the 5th and 14th
Amendments to the United States Constitution.
The case seeks relief relating to the alleged deprivation of the
Plaintiff's and Class members' property rights in real property
located within Montgomery County, Ohio. Specifically, the County,
acting within its governmental capacity and under color of state
law, terminated and seized the Plaintiff's ownership interest in
real estate under the auspices of tax foreclosure proceedings
authorized by O.R.C. Sections 323.65, et seq., but in doing so,
denied the Plaintiff and Class members their constitutional right
to just compensation, according to the complaint.
The County is a body politic and corporate organized pursuant to,
and possessed of such powers, rights, and privileges as are granted
by the general law of the State of Ohio.[BN]
The Plaintiff is represented by:
Andrew M. Engel, Esq.
ANDREW M. ENGEL CO., LPA
7925 Paragon Road
Dayton, OH 45459
Telephone: (937) 221-9819
Facsimile: (937) 433-1510
E-mail: aengel@amengellaw.com
- and -
Marc E. Dann, Esq.
Brian D. Flick, Esq.
Michael A. Smith, Jr., Esq.
DANNLAW
P.O. Box 6031040
Cleveland, OH 44103
Telephone: (216) 373-0539
Facsimile: (216) 373-0536
E-mail: mdann@dannlaw.com
bflick@dannlaw.com
msmith@dannlaw.com
- and -
Thomas A. Zimmerman, Jr., 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
matt@attorneyzim.com
MRI INTERNATIONAL: Settlement in Takiguchi Has Prelim Approval
--------------------------------------------------------------
In the case, SHIGE TAKIGUCHI, FUMI NONAKA, MITSUAKI TAKITA, TATSURO
SAKAI, SHIZUKO ISHIMORI, YUKO NAKAMURA, MASAAKI MORIYA, HATSUNE
HATANO, and HIDENAO TAKAMA, Individually and On Behalf of All
Others Similarity Situated, Plaintiff, v. MRI INTERNATIONAL, INC.,
EDWIN J. FUJINAGA, JUNZO SUZUKI, PAUL MUSASHI SUZUKI, LVT, INC.,
dba STERLING ESCROW, and DOES 1-500, Defendants, Case No.
2:13-cv-01183-HDM-VCF (D. Nev.), Judge Howard D. McKibben of the
U.S. District Court for the District of Nevada granted the
Plaintiff's motion for preliminary approval of the proposed class
action settlement.
Having considered the Motion, the Settlement Agreement, the
proposed form of notice to the Class, the pleadings and other
papers filed in these Actions, and for good cause shown, Judge
McKibben finds that the proposed Settlement with MRI and Fujinaga
is sufficiently fair, reasonable and adequate such that it is
preliminarily approved.
The Judge approved the Settlement Notice, and finds that the
dissemination of the Settlement Notice substantially in the manner
and form set forth in the Settlement Agreements complies fully with
the requirements of Federal Rule of Civil Procedure 23 and due
process of law, and is the best notice practicable under the
circumstances.
The Judge appointed Heffler Claims Group as the Notice
Administrator. Pursuant to the Settlement Agreement, the costs of
the Notice Administrator's costs will be paid out of the Settlement
Fund, subject to Court review and approval.
The Notice Administrator will cause the Settlement Notice to all
the Class Members on Sept. 9, 2019. The Notice Administrator will
also cause the Settlement Notice to be published on the National
Consumer Affairs of Japan's website. At least 30 days prior to the
Final Approval Hearing, the Claims Administrator will file with the
Court an Affidavit of Compliance with Notice Requirements.
The Class Members will have 45 days from the date the Notice of
Settlement is mailed to request to be excluded from the Proposed
Settlement.
The Final Approval Hearing will be held before the Court at 10:00
a.m. on Nov. 26, 2019 in Courtroom 4 of United States District
Court of Nevada, 400 South Virginia Street, Reno, Nevada 89501.
Objections, along with any statements of intent to appear, must be
postmarked no later than 45 days from the Notice date, and mailed
to the addresses provided in the Notice.
The schedule by which the events referenced above will occur as
follows:
a. Notice of Class Action Settlement to Be Mailed and Posted
on Internet - Sept. 9, 2019
b. Opt-Out and Objection Deadline - Oct. 24, 2019
c. Notice Administrator Affidavit of Compliance with Notice
Requirements - Oct. 27, 2019
d. Motion for Final Approval - Nov. 5, 2019
e. Opposition to the Motion for Final Approval - Nov. 12, 2019
f. Provide List of Persons Who Have Made Requests for
Exclusions - Nov. 12, 2019
g. Replies in Support of Motions for Final Approval - Nov. 19,
2019
h. Final Approval Hearing - Nov. 26, 2019 at 10:00 a.m.
All further proceedings as to MRI and Fujinaga are stayed and all
deadlines are vacated, except for any actions required to
effectuate or enforce the Settlement Agreement.
A full-text copy of the Court's Aug. 16, 2019 Order is available at
https://is.gd/Aa0AiZ from Leagle.com.
Shige Takiguchi, Fumi Nonaka, Kaoruko Koizumi, Tatsuro Sakai &
Mitsuaki Takita, Plaintiffs, represented by James Edwin Gibbons --
jeg@manningllp.com -- Manning & Kass Ellrod, Ramirez, Trester LLP,
James R. Olson, Olson, Cannon, Gormley, Angulo & Stoberski, Mariko
Taenaka, Law Offices of Robert W. Cohen, Robert W. Cohen, Law
Offices of Robert W. Cohen, APC & Steven Jeff Renick --
sjrnull@nullmanningllp.com -- Manning & Kass, Ellrod, Ramirez,
Trester LLP.
Shizuuko Ishimori, Yoko Hatano, Yuko Nakamura, Hidehito Miura,
Yoshiko Tazaki, Masaaki Moriya, Hatsune Hatano, Satoru Moriya,
Hidenao Takama, Shigeru Kurisu, Saka Ono, Kazuhiro Matsumoto, Kaya
Hatanaka, Hiroka Yamajiri, Kiyoharu Yamamoto, Junko Yamamoto,
Koichi Inoue, Akiko Naruse, Toshimasa Nomura & Ritsu Yurikusa,
Plaintiffs, represented by James Edwin Gibbons, Manning & Kass
Ellrod, Ramirez, Trester LLP, James R. Olson, Olson, Cannon,
Gormley, Angulo & Stoberski, Mariko Taenaka, Law Offices of Robert
W. Cohen, Robert W. Cohen, Law Offices of Robert W. Cohen, APC &
Steven Jeff Renick, Manning & Kass, Ellrod, Ramirez, Trester LLP,
pro hac vice.
MRI International, Inc. & Edwin J Fujinaga, Defendants,
represented
by Daniel L. Hitzke, Hitzke & Associates & Erick M. Ferran.
Junzo Suzuki, Defendant, represented by Jeffrey A. Silvestri --
jsilvestri@mcdonaldcarano.com -- McDonald Carano Wilson, Nicolas
Morgan -- nicolasmorgan@paulhastings.com -- Paul Hastings LLP, pro
hac vice & Paul J. Georgeson -- pgeorgeson@mcdonaldcarano.com --
McDonald Carano Wilson LLP.
ICAG, INC., Defendant, represented by Jacob A. Reynolds --
jreynolds@hutchlegal.com -- Hutchison & Steffen, Mark A. Hutchison
-- mhutchison@hutchlegal.com -- Hutchison & Steffen, LLC & Robert
T. Stewart -- rstewart@hutchlegal.com -- Hutchison & Steffen, LLC.
First Hawaiian Bank, Defendant, represented by Christopher R.
Ramos
-- cramos@vedderprice.com -- Vedder Price (CA), LLP, pro hac vice,
Rex Garner -- rex.garner@akerman.com -- Akerman LLP, Ariel E.
Stern
-- ariel.stern@akerman.com -- Akerman LLP, Lisa M. Simonetti --
lsimonetti@vedderprice.com -- Vedder Price, LLP.
Suzuki Enterprises, Inc. Profit Sharing Plan, Defendant,
represented by Gregg D. Zucker -- gregg@foundationlaw.com --
Foundation Law Group & Robert A. Rabbat --
rrabbat@enensteinlaw.com
-- Enenstein Ribakoff LaVina & Pham.
Damon Key Leong Kupchak Hastert, Interested Party, represented by
Paul D. Alston -- PAlston@ahfi.com -- Alston Hunt Floyd & Ing,
Albert G. Marquis -- amarquis@maclaw.com -- Marquis & Aurbach,
Candice Renka -- crenka@maclaw.com -- Marquis & Aurbach & Nickolas
A. Kacprowski -- NKacprowski@ahfi.com -- Alston Hunt Floyd & Ing.
Mary Luszczyk, Material Witness, represented by Mark S. Dzarnoski,
Gordan & Silver, Ltd.
MYDERMRECRUITER: Advanced Dermatology Sues over Unsolicited Calls
-----------------------------------------------------------------
ADVANCED DERMATOLOGY, individually and on behalf of all others
similarly situated, Plaintiff v. MYDERMRECRUITER; and MICHELLE
SULLENTRUP, Defendants, Case No. 1:19-cv-02029 (N.D. Ohio, Sept. 4,
2019) seeks to stop the Defendants' practice of making unsolicited
calls.
Mydermrecruiter offers medical staffing solutions for
dermatologists as well as physicians looking for dermatology
positions. [BN]
The Plaintiffs are represented by:
Ronald I. Frederick, Esq.
Michael L. Berler, Esq.
Michael L. Fine, Esq.
FREDERICK & BERLER, LLC
767 East 185th Street
Cleveland, OH 44119
Telephone: (216) 502-1055
Facsimile: (216) 566-9400
E-mail: ronf@clevelandconsumerlaw.com
mikeb@clevelandconsumerlaw.com
michaelf@clevelandconsumerlaw.com
NATROL LLC: Certification of Classes Sought in Vitello Suit
-----------------------------------------------------------
The Plaintiff moves the Court to certify her action styled
CHRISTINE VITELLO, on behalf of herself and others similarly
situated v. NATROL, LLC, a Delaware corporation, Case No.
4:18-cv-00915-RWS (E.D. Mo.), as a class action against the
Defendant and enter an order certifying the classes defined in her
memorandum.
Ms. Vitello also asks the Court to appoint her as class
representative, and to appoint her counsel as class counsel.[CC]
The Plaintiff is represented by:
Jonathan E. Fortman, Esq.
LAW OFFICE OF JONATHAN E. FORTMAN, LLC
250 St. Catherine Street
Florissant, MO 63031
Telephone: (314) 522-2312
Facsimile: (314) 524-1519
E-mail: jef@fortmanlaw.com
- and -
Steve A. Miller, Esq.
STEVE A. MILLER, PC
1625 Larimer Street, No. 2905
Denver, CO 80202
Telephone: (303) 892-9933
Facsimile: (303) 892-8925
E-mail: sampc01@gmail.com
- and -
John C. Kress, Esq.
THE KRESS LAW FIRM, LLC
P.O. Box 6525
St. Louis, MO 63125
Telephone: (314) 631-3883
Facsimile: (314) 332-1534
E-mail: jckress@thekresslawfirm.com
NEWFIELD EXPLORATION: Swafford Trust Files Class Suit in Colorado
-----------------------------------------------------------------
A class action lawsuit has been filed against Newfield Exploration
Company. The case is styled as Mary Lansden Swafford, as trustee
for the Mary Lansden Swafford GST Exemption Residuary Trust, on
behalf of itself and on all others similarly situated, Plaintiff v.
Newfield Exploration Company and Newfield Exploration Mid-Continent
Inc., Defendants, Case No. 1:19-cv-02746 (D. Colo., Sept. 25,
2019).
The docket of the case states the nature of suit as Contract: Other
filed pursuant to the Class Action Fairness Act.
Newfield Exploration Company was a petroleum, natural gas, and
natural gas liquids exploration and production company organized in
Delaware and headquartered in Houston, Texas. In February 2019, the
company was acquired by Encana.[BN]
The Plaintiff is represented by:
Reagan Edward Bradford, Esq.
Lanier Law Firm, P.C.
431 West Main Street, Suite D
Oklahoma City, OK 73102
Tel: (405) 698-2770
Fax: (405) 234-5506
Email: Reagan.Bradford@LanierLawFirm.com
NEWPORT BEACH AUTOMOTIVE: Guerra Sues Over Unsolicited Marketing
----------------------------------------------------------------
MARIO GUERRA, individually and on behalf of all others similarly
situated, Plaintiff, v. NEWPORT BEACH AUTOMOTIVE GROUP LLC,
Defendant, Case No. 0:19-cv-62343-XXXX (S.D. Fla., Sept. 19, 2019)
is a putative class action under the Telephone Consumer Protection
Act, arising from Defendant's violations of the TCPA.
To solicit new clients, Defendant engages in unsolicited marketing
with no regard for privacy rights of the recipients of those
messages, asserts the complaint. The Defendant caused thousands of
unsolicited text messages to be sent to the cellular telephones of
Plaintiff and Class Members, causing them injuries, including
invasion of their privacy, aggravation, annoyance, intrusion on
seclusion, trespass, and conversion. Through this action, Plaintiff
seeks injunctive relief to halt Defendant's illegal conduct.
Plaintiff also seeks statutory damages on behalf of himself and
Class Members, and any other available legal or equitable remedies
resulting from the illegal actions of Defendant.
Plaintiff is a natural person and is a resident of Broward County,
Florida.
Defendant is an automobile dealership group.[BN]
The Plaintiff is represented by:
JIBRAEL S. HINDI, ESQ.
THOMAS J. PATTI, ESQ.
The Law Offices of Jibrael S. Hindi
110 SE 6th Street, Suite 1744
Fort Lauderdale, FL 33301
Phone: 954-907-1136
Fax: 855-529-9540
Email: jibrael@jibraellaw.com
tom@jibraellaw.com
NORMANDY, MO: Bid to Dismiss Davis Civil Rights Act Suit Denied
---------------------------------------------------------------
In the case, ANGELA DAVIS, et al., Plaintiffs, v. CITY OF NORMANDY,
Defendant, Case No. 4:18CV1514 RLW (E.D. Mo.), Judge Ronnie L.
White of the U.S. District Court for the Eastern District of
Missouri, Eastern Division, denied Normandy's Rule 12(b)(7) Motion
to Dismiss for Failure to Join an Indispensable Party.
Plaintiffs Davis, Quinton M. Thomas, Roelif Earl Carter, and
Meredith Walker filed the putative class action on behalf of
themselves and all others similarly situated against the City of
Normandy. Their Class Action Complaint asserts five counts
pursuant to 42 U.S.C. Section 1983, alleging that the
municipality's policies and practices violated their rights under
the Fourth, Sixth, and Fourteenth Amendments to the United States
Constitution.
Specifically, Count I alleges that the City imprisoned Plaintiffs
and/or threatened to imprison them for their inability to pay
fines; Count II alleges that the City failed to provide adequate
counsel; Count III alleges that the City detained Plaintiffs for
indefinite periods of time until they made arbitrarily and
inconsistently established cash payments; Count IV alleges that the
City issued invalid arrest warrants related to unpaid fines; and
Count V alleges that the City imprisoned the Plaintiffs and/or
threatened to imprison them in an effort to collect debts.
The City moved to dismiss the Class Action Compliant pursuant to
Federal Rule of Civil Procedure 12(b)(7) for failure to join an
indispensable party under Rule 19. In the motion, the City argued
the Plaintiffs' claims arise out of the judicial and quasi-judicial
actions of the municipal court division in Normandy and,
consequently, the municipal court division is an indispensable
party. The municipal court division, however, is part of
Missouri's unified court system and would be considered an arm of
state government, which is entitled to sovereign immunity. The
City concluded that Rule 19(b) compels the Court to dismiss the
case because the Normandy municipal court division is a required
party but such joinder would bar jurisdiction.
The Plaintiffs argued the municipal court division is not a
required party because their Class Action Complaint challenges the
policies and practices of the City itself rather than the actions
of the municipal court division.
Judge White opined that Normandy's municipal court division 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. The Court is able to accord meaningful relief
to the Plaintiffs without joinder of the municipal court division.
The Plaintiffs is seeking 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. The Court may provide
such relief to the extent that the Plaintiffs' claims prove to be
viable and meritorious. The City's argument that the municipal
court division, and not the City, caused the alleged constitutional
violations may be a reason to deny relief on the 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 division has an interest relating to the subject of the
action, disposition of the action in the municipal court division's
absence will not as a practical matter impair or impede the
municipal court division's ability to protect its interest.
Nor would the municipal court division's absence subject the City
to a substantial risk of incurring double or otherwise inconsistent
obligations. Because the municipal court division is not a
required party under Rule 19(a), the Judge need not address whether
dismissal is required under Rule 19(b). The City's motion must be
denied. In light of the thorough briefing on these issues, oral
argument is unnecessary.
Based on the foregoing, Judge White denied Normandy's Rule 12(b)(7)
Motion to Dismiss for Failure to Join an Indispensable Party and
Request for Oral Argument on Its Rule 12(b)(7) Motion to Dismiss
for Failure to Join an Indispensable Party. The City of Normandy
is reminded of its obligation to answer or otherwise respond to the
First Amended Complaint within the time set by the rules.
A full-text copy of the Court's Aug. 23, 2019 Memorandum and Order
is available at https://is.gd/Tik2rV from Leagle.com.
Angela Davis, Quinton M. Thomas, Roelif Earl Carter & Meredith
Walker, Plaintiffs, represented by John Robinson --
john.robinson@arnoldporter.com -- ARNOLD AND PORTER, LLP, pro hac
vice, John McCann Waldron -- mail@archcitydefenders.org -- ARCHCITY
DEFENDERS, Michael-John Voss, ARCHCITY DEFENDERS, Samuel Zachary
Fayne --zachary.fayne@arnoldporter.com -- ARNOLD AND PORTER, LLP,
Sima Atri, ARCHCITY DEFENDERS & Blake Alexander Strode, ARCHCITY
DEFENDERS.
City of Normandy, Defendant, represented by John Michael Reeves,
Jr., HELLMICH HILL LLC, Blake Daniel Hill, HELLMICH HILL LLC &
William A. Hellmich, HELLMICH HILL LLC.
NORWALK, CT: Wage Theft Suit vs. Public Schools Moves to Dist. Ct.
------------------------------------------------------------------
Justin Papp, writing for The Hour, reports that days after a civil
case alleging wage theft against the city's public schools was
withdrawn from state court, two new related suits have been filed
in federal court.
On September 12, documents were filed on behalf of two Norwalk
school employees -- Barbara Riley, a para-educator, and Hope Coles,
an administrative secretary -- alleging the district failed to
fully pay them for their work, in breach of the federal Fair Labor
Standards Act (FLSA).
"Both named representatives have different FLSA allegations," said
Ryan Daugherty, Esq. the New York-based attorney representing the
school employees. "One (Coles) is alleging her hours were manually
reduced by the district and the other (Riley) is alleging that she
wasn't paid her overtime premium for the hours worked over 40."
According to Riley's suit, she worked full-time in the district as
a para-educator but picked up extra hours through the district's
After the School program. During weeks in which she worked more
than 40 hours, she should have been eligible for time-and-a-half.
But over the course of several months in 2017, the suit alleges,
Riley was denied more than $1,000 in time-and-a-half pay that she
was owed. Over a broader period, Daugherty said he believed the
amount could be larger.
The second suit, involving Coles, a Ponus Ridge Middle School
employee, more closely mirrors the class action suit filed in state
court in July. The suit alleges that administrative secretaries,
Coles included, were instructed to alter the time cards of
non-exempt employees who logged more than 37.5 hours a week, so
that overtime would not be owed.
According to Deputy Corporation Counsel Jeff Spahr, a directive was
issued by Ponus Ridge Principal Damon Lewis in winter 2016 advising
that employees should not work overtime. The instructions came as
the result of a budget overrun.
"They were informed that they must make sure that they punched out
(and in) in a timely fashion," Spahr wrote in an email September
10. "They were never instructed to work past their deadline and to
fix the books to remove any overtime work justly earned."
The suit, however, alleges that administrative secretaries, who
input staff timecards, were ordered to adjust the hours of as many
as 10 to 15 employees a week. According to Daugherty, nearly 100
Norwalk Public School employees have opted in to the collective
action suits, which allow employees to jointly sue an employer.
Moving the suits from state to federal court was a tactical
decision, Daugherty said.
"Federal statutes provide more protection to employees and the
federal court process has streamlined these FLSA complaints and
have experience dealing with complicated FLSA matters," Daugherty
said.
According to Spahr, filing a lawsuit at all was inappropriate. He
has argued Coles and Riley should have filed an internal grievance
as outlined in the collective bargaining agreement ratified by the
Norwalk Federation of Educational Personnel, the union representing
non-exempt staff, of which Coles is president.
"If they believe that there have been errors in their pay, we would
be happy to sit down with them and discuss this as provided for in
the contract," Spahr said. "You have to ask if this is about proper
pay or profiteering." [GN]
NRT WEST INC: Chinitz Files Suit in Puerto Rico
-----------------------------------------------
A class action lawsuit has been filed against NRT West, Inc. The
case is styled as Ronald Chinitz on behalf of himself and all
others similarly situated, Plaintiff v. NRT West, Inc. doing
business as: Coldwell Banker Residential Brokerage Company,
Defendant, Case No. 3:19-mc-00352-FAB (D. P.R., Sept. 26, 2019).
Coldwell Banker Real Estate LLC is an American real estate
franchise owned by Realogy with headquarters in Madison, New
Jersey.[BN]
The Plaintiff is represented by:
Hector Sueiro-Alvarez, Esq.
Gallo LLC
1311 Ponce de Leon Ave., Suite 400
San Juan, PR 00907
Phone: (415) 257-8800
Fax: (415) 257-8844
Email: hsueiro@gallo.law
ODYSSEY HEALTHCARE: Mallory Files Suit for Wrongful Termination
---------------------------------------------------------------
A class action lawsuit has been filed against Odyssey Healthcare
Operating A, L.P. The case is styled as Rebecca Mallory, on behalf
of herself, and as an "aggrieved employee" on behalf of other
similarly situated "aggrieved employees" under the Labor Code
Private Attorney General Act of 2004, Plaintiff v. Odyssey
Healthcare Operating, L.P., a Delaware limited partnership, Kindred
Healthcare Operating, LLC, a Delaware limited liability company,
Humana Inc., a Delaware corporation, Gentiva Health Services (USA)
LLC, a Delaware limited liability company and Gentiva Certified
Healthcare Corp., a Delaware corporation, Defendants, Case No.
BCV-19-102735 (Cal. Super. Ct., Kern County, Sept. 25, 2019).
The case asserts wrongful termination.
Show cause order of the said case is set for January 9, 2020, at
8:30 a.m.
Case management conference is also set for March 24, 2020, at 8:15
a.m.
Odyssey Healthcare Operating A, L.P. is a healthcare provider.[BN]
The Plaintiff is represented by:
David G. Spivak, Esq.
The Spivak Law Firm
16530 Ventura Blvd #312
Encino, CA
Tel: +1 818-582-3086
OLLIE'S BARGAIN: Nov. 18 Lead Plaintiff Bid Deadline
----------------------------------------------------
Hagens Berman notifies OLLI investors of a securities fraud lawsuit
filed against Ollie's Bargain Outlet Holdings (OLLI).
CLASS PERIOD: June 6, 2019 - Aug. 28, 2019
LEAD PLAINTIFF DEADLINE: Nov. 18, 2019
Email: OLLI@hbsslaw.com
Visit: https://www.hbsslaw.com/investor-fraud/OLLI
Call: Reed Kathrein, who is leading the firm's investigation:
510-725-3000
OLLI Securities Class Action:
According to the Complaint, Defendants concealed Ollie's: (1)
supply chain problems that adversely affected initial inventory at
new stores; (2) inability to meet customer demand; and (3) the
likely comparable store sales decrease quarter-over-quarter. On
August 28, 2019, the market learned the truth when Defendants
announced disappointing 2Q 2019 financial results, including
declining comparable store sales. Senior management blamed the poor
performance on supply chain issues preventing delivery of
sufficient inventory from distribution centers into Ollie's stores.
In response, the price of OLLI shares crashed over 27% the next
day.
If you invested in Ollie's Bargain Outlet Holdings between June 6,
2019 and Aug. 28, 2019 and suffered significant losses (in excess
of $50,000) you may qualify to be a lead plaintiff -- one who
selects and oversees the attorneys prosecuting the case. Contact
Hagens Berman immediately to obtain additional information about
this case or being a lead plaintiff.
"We are focused on investors' losses, when senior executives knew
of supply chain problems, and the extent to which they may have
misled investors," said Hagens Berman partner Reed Kathrein.
Whistleblowers: Persons with non-public information regarding
Ollie's should consider their options to help in the investigation
or take advantage of the SEC whistleblower program. Under the new
program, whistleblowers who provide original information may
receive rewards totaling up to 30 percent of any successful
recovery made by the SEC. For more information, call Reed Kathrein
at 510-725-3000 or email OLLI@hbsslaw.com
About Hagens Berman
Hagens Berman is a national law firm with nine offices in eight
cities around the country and eighty attorneys. The firm represents
investors, whistleblowers, workers and consumers in complex
litigation. More about the firm and its successes is located at
hbsslaw.com. For the latest news visit our newsroom or follow us on
Twitter at @classactionlaw
Contact:
Reed Kathrein, Esq.
Tel: 510-725-3000
Email: reed@hbsslaw.com [GN]
P-D VALMIERA: Sale of Up to 200K Bobbins for $2.15 Per Bobbin OK'd
------------------------------------------------------------------
Judge Paul W. Bonapfel of the U.S. Bankruptcy Court for the
Northern District of Georgia authorized P-D Valmiera Glass USA
Corp.'s sale of up to 200,000 bobbins to Saint Gobain for $2.15 per
bobbin, with the Purchaser paying all shipping and freight charges
related to delivery of the bobbins.
The sale is free and clear of all liens, claims and encumbrances,
and any such liens, claims and encumbrances will attach to the net
sale proceeds.
Pursuant to Bankruptcy Rule 6004(h), the Order will not be stayed
for any reason, including the filing of a notice of appeal, and the
Order will be effective immediately upon entry, and the Debtor and
Purchaser are authorized to close on the contemplated sales
immediately upon entry of the Order.
About P-D Valmiera Glass USA Corp.
P-D Valmiera Glass USA Corp. -- http://www.valmiera-glass.com/--
manufactures fiberglass and fiberglass products. P-D Valmiera
Glass USA sought protection under Chapter 11 of the Bankruptcy Code
(Bankr. N.D. Ga. Case No. 19-59440) on June 17, 2019. At the time
of the filing, the Debtor estimated assets of between $100 million
and $500 million and liabilities of the same range. The is
assigned to Judge Paul W. Bonapfel. The Debtor is represented by
Scroggins & Williamson, P.C.
The U.S. Trustee for Region 21 on July 8, 2019, appointed three
creditors to serve on the official committee of unsecured creditors
in the Chapter 11 case. The Committee retained Kilpatrick Townsend
& Stockton LLP, as attorney, and Dundon Advisers LLC, as financial
advisor.
PPG INDUSTRIES: Final OK of $7.65MM Deal in Amos Suit Endorsed
--------------------------------------------------------------
In the case, Patricia L. Amos, et al., on behalf of themselves and
others similarly situated, Plaintiffs, v. PPG Industries, Inc., et
al., Defendants, Case No. 2:05-cv-70 (S.D. Ohio), Magistrate Judge
Elizabeth A. Preston Deavers of the U.S. District Court for the
Southern District of Ohio, Eastern Division, recommended that the
Court grants final approval of the Settlement Agreement and Plan of
Allocation, award attorney's fees, costs, and expenses in the
amount of $2.35 million, and enters final judgment in the case.
On Jan. 21, 2005, the Plaintiffs sued PPG under the Labor
Management Relations Act, and the Employee Retirement Income
Security Act ("ERISA"). Their amended their complaint several
times, primarily to include or omit the named Plaintiffs and the
Defendants, and the operative version -- the Supplemental Seventh
Amended Complaint -- was filed on April 19, 2017.
The Plaintiffs bring claims on behalf of themselves and a class of
retirees (and their spouses, surviving spouses, and dependents)
from 13 PPG facilities who had been represented as employees by
five labor unions and who receive PPG medical benefits in
retirement. The Plaintiffs allege that PPG unilaterally reduced
and/or modified retiree medical benefits and shifted costs onto the
retirees starting in 2001, and continued to further reduce benefits
and impose higher premium costs since then.
The Plaintiffs further allege that on Jan. 1, 2017, PPG eliminated
its ERISA governed health plan for Medicare-eligible retirees,
replacing it with a Health Reimbursement Arrangement ("HRA")
through which it contributed $125 a month for retirees to use to
purchase individual coverage. In doing so, the Plaintiffs claim,
PPG violated a series of collective bargaining agreements ("CBAs")
that allegedly granted them vested medical benefits throughout
retirement.
PPG denies that the retirees' benefits vested and denies that it
breached the CBAs by implementing the changes because the
underlying CBAs had expired.
The parties have entered into a settlement agreement to resolve the
class action lawsuit. Inder the Agreement, the "General Class" is
defined in the Settlement Agreement as follows: All collectively
bargained past, present, and future retirees of PPG (as well as the
spouses, surviving spouses, and eligible dependents of these
retirees) who: (1) while employed by PPG, were represented by the
Unions; (2) were eligible for retiree medical coverage pursuant to
the terms of collectively bargained agreements and provisions
between any Union and PPG; and (3) retired from, or before final
judgment in the litigation will retire from, the following PPG
facilities, on or after the dates indicated: Barberton (3/1/90);
Circleville (10/1/86); Creighton (2/16/84); Crystal City (2/16/84);
Cumberland (2/16/84); Delaware (2/16/86); Ford City (2/16/84);
Fresno (5/16/84); Greensburg (3/25/84); Lake Charles (5/15/87); Mt.
Zion (6/15/84); Natrium (3/1/87); and Springdale (11/1/84).
In addition, the General Class includes, when eligible for retiree
health coverage pursuant to the terms of collectively bargained
agreements and provisions between any Union and PPG, the surviving
spouses of active employees who have died before final judgment in
this litigation and who at the time of such employees' death worked
at one of the listed facilities (on or after the dates indicated),
and were represented by a Union.
The "Delaware Subclass" means the following: Members of the general
class who are retirees, spouses, surviving spouses and eligible
dependents of persons who were employed by PPG at its Delaware,
Ohio facility and retired on or after Feb. 16, 1986 but before Feb.
3, 2014, who were represented by the UAW during their employment,
and who are eligible for retiree health coverage under the terms of
collectively bargained agreements and provisions between UAW and
PPG. In addition, the Subclass includes, when eligible for retiree
health coverage under the terms of collectively bargained
agreements and provisions between UAW and PPG, the surviving
spouses of active employees who have died before final judgment in
this litigation and who at the time of their death worked at the
Delaware facility on or after Feb. 19, 1995, and were represented
by the UAW.
PPG will provide future medical benefits through Dec. 31, 2025 to
members of the General Class (including the Delaware Subclass) who
were not covered by the earlier settlement that the Plaintiffs
negotiated with Axiall Corporation and Georgia Gulf Corp., approved
by the Court on Aug. 13, 2015. Those General Class members who
were covered by the earlier settlement with Axiall will not receive
the future benefits described in this section, but they will
receive a share of the Lump Sum Payment along with all other
members of the General Class.
If eligible for Medicare, PPG will continue to fund an HRA through
Dec. 31, 2025 for such General Class members to access for
reimbursement of qualified medical expenses. If not eligible for
Medicare, PPG will provide the same benefit plan that it provides
to other non-Medicare-eligible PPG retirees through Dec. 31, 2025.
For those covered by a health plan for active employees that is set
forth in a CBA when the settlement is finally approved, PPG will
continue to provide such coverage until the expiration date set
forth in the CBA, or any mutually agreed upon extension of the
expiration date. At that time, such General Class members will get
the benefits described in the sections above based on whether they
are eligible for Medicare.
PPG will pay a lump sum of $7.65 million to resolve the lawsuit,
which will be distributed in a manner that will partially reimburse
General Class members and Delaware Subclass members for the medical
expenses and costs of medical coverage they incurred as a result of
the benefit changes that were challenged in the lawsuit. This lump
sum will be distributed to all living General Class members
(including those covered by the Axiall settlement) except those who
are still covered by a health plan for active employees as set
forth in a current CBA. Onehalf ($3,825,000) will be allocated to
Delaware Subclass members, and the other half ($3,825,000) will be
allocated to General Class members not in the Delaware Subclass.
The proposed Plan of Allocation provides that, should any portion
of the lump sum of $7.65 million remain unclaimed by class members
after it is distributed according to the Plan, one half of the
remainder will be paid to the Patient Advocate Foundation, and the
other half to the Greater Pittsburgh Community Food Bank.
All living General Class members who are not in the Delaware
Subclass, except for those still covered by a health plan for
active employees as set forth in a current CBA, will receive an
equal share of the $3,825,000 allocated to this group. Based on
the most recent class census information provided in the
litigation, the Plaintiffs currently estimate such payments to be
approximately $1,000. Those who have a PPG HRA will receive their
share through a one-time contribution to their HRA. Those who do
not have a PPG HRA will be paid by check.
The $3,825,000 allocated to the Delaware Subclass will be
distributed proportionally to the living Subclass members based on
the length of time for each between (i) the date PPG first
implemented the changes at issue in the lawsuit or, if later, the
date he/she began participating in a PPG retiree medical plan other
than the Plan negotiated by PPG and the UAW, and (ii) the date of
final approval or, if earlier, the date his/her coverage through
PPG terminated due to death, remarriage, re-employment, or reaching
the age limit in the case of a child. Additionally, living
Subclass members who are the surviving spouse of a deceased
Subclass member will receive the share of the lump sum payment that
their deceased spouse would have otherwise received if he/she was
still living. Delaware Subclass members will be paid by check.
The Plaintiffs have retained a third-party settlement administrator
to set up a settlement fund in order to receive and distribute the
portions of the lump sum not to be disbursed through an HRA. The
Defendants have agreed to pay up to $50,000 towards the costs of
settlement administration, but any costs above that amount will be
deducted from the settlement fund prior to distribution to the
members of the General Class and Delaware Subclass. They also
agreed to mail notice of the Settlement Agreement to the class and
pay the cost of doing so. Finally, the Defendants have also agreed
not to oppose the Plaintiffs' Motion for Attorneys' Fees, Costs and
Expenses in the amount of $2.35 million.
On Jan. 17, 2019, the Plaintiffs moved for preliminary approval of
the Settlement Agreement and the proposed Plan of Allocation. On
Feb. 4, 2019, the Court amended its Jan. 5, 2018 class
certification order to adopt the modified definitions of the
General Class and Delaware Subclass, granted preliminary approval
of the Settlement Agreement and proposed Plan of Allocation, and
set the Final Fairness Hearing for June 11, 2019. The Court
preliminarily approved the settlement on Feb. 4, 2019. Notice was
thereafter given to the class.
On April 29, 2019, the Plaintiffs filed their Motion for Attorneys'
Fees, Costs and Expenses in the amount of $2.35 million, and
provided supporting declarations and fee and expense records from
Class Counsel, Joel R. Hurt, Timothy F. Cogan, and Barry A. Macey.
On June 3, 2019, the Plaintiffs moved for an order finally
approving the Settlement Agreement and Plan of Allocation.
On May 31, 2019, PPG filed a brief in support of the settlement.
The Fairness Hearing held on June 11, 2019, was referred to the
Magistrate Judge to preside over and issue a Report and
Recommendation.
Magistrate Judge Deavers recommended that the Plaintiffs' Motion
for Final Approval of the Settlement Agreement and Plan of
Allocation and the Plaintiffs' Motion for Attorney's Fees, Costs,
and Expenses be granted.
She also recommended that the Court adopts or approves (i) the Plan
of Allocation; (ii) the appointment of KCC Class Action Services,
LLC as the Settlement Administrator; and (iii) the Plaintiffs'
motion for attorneys' fees in the amount of $2,047,064.24 and costs
and expenses in the amount of $302,935.76.
The Judge further recommemded that the Court approves the
dismisssal of the case with prejudice. All Released Claims should
be extinguished, discharged, and released against any and all
Released Parties, without costs except as provided.
If any party seeks review by the District Judge of the Report and
Recommendation, that party may, within 14 days, file and serve on
all parties objections to the Report and Recommendation.
A full-text copy of the Court's Aug. 16, 2019 Report and
Recommendation is available at https://is.gd/cvzxsN from
Leagle.com.
Patricia L Amos, James S. Hutchison, Sally Jones, George Owens,
Terry Taylor & John Foster, Plaintiffs, represented by Pamina Ewing
-- pewing@fdpklaw.com -- Feinstein Doyle Payne & Kravec, LLC,
Timothy Francis Cogan -- tfc@walslaw.com -- Cassidy Myers Cogan
Voegelin, William T. Payne -- wpayne@fdpklaw.com -- Feinstein Doyle
Payne & Kravec, LLC, Barry A. Macey -- bmacey@maceylaw.com -- Macey
Swanson and Allman, pro hac vice, Ellen M. Doyle --
edoyle@fdpklaw.com -- Feinstein Doyle Payne & Kravec, LLC, pro hac
vice, Joel R. Hurt -- jhurt@fdpklaw.com -- Feinstein Doyle Payne &
Kravec, LLC, pro hac vice & Ruairi McDonnell --
rmcdonnell@fdpklaw.com -- Feinstein Doyle Payne & Kravec, LLC, pro
hac vice.
Robert Ratleff, Plaintiff, represented by Barry A. Macey, Macey
Swanson and Allman, Ellen M. Doyle, Feinstein Doyle Payne & Kravec,
LLC, pro hac vice, Joel R. Hurt, Feinstein Doyle Payne & Kravec,
LLC, pro hac vice, Ruairi McDonnell, Feinstein Doyle Payne &
Kravec, LLC, pro hac vice & William T. Payne, Feinstein Doyle Payne
& Kravec, LLC.
Arthur Ramoz, Alex Olszyk, John R. Zuzik & John P. Detty,
Plaintiffs, represented by Ellen M. Doyle, Feinstein Doyle Payne &
Kravec, LLC, pro hac vice, Joel R. Hurt, Feinstein Doyle Payne &
Kravec, LLC, pro hac vice, Ruairi McDonnell, Feinstein Doyle Payne
& Kravec, LLC, pro hac vice & William T. Payne, Feinstein Doyle
Payne & Kravec, LLC.
Mark Bryan, Shirley M. Bryan, Virginia Bakeman, William Brison,
Richard Fischer, Richard Ross & Lindsay T. Granger, Plaintiffs,
represented by Ellen M. Doyle, Feinstein Doyle Payne & Kravec, LLC,
pro hac vice, Joel R. Hurt, Feinstein Doyle Payne & Kravec, LLC,
pro hac vice, Ruairi McDonnell, Feinstein Doyle Payne & Kravec,
LLC, pro hac vice & William T. Payne, Feinstein Doyle Payne &
Kravec, LLC.
PPG Industries Inc & PPG Industries Ohio, Inc, Defendants,
represented by Charles Collins Warner -- cwarner@porterwright.com
-- Porter Wright Morris & Arthur, John A. McCreary, Jr. --
jmccreary@babstcalland.com -- Babst Calland, pro hac vice, Joseph
J. Torres -- jtorres@winston.com -- Jenner & Block LLP, Molly E.
Meacham -- mmeacham@babstcalland.com -- Babst, Calland, Clements
and Zomnir, P.C., pro hac vice, Rebecca Dick-Hurwitz, Babst,
Calland, Clements & Zomnir, PC, Richard J. Antonelli --
rantonelli@babstcalland.com -- Babst Calland Clements & Zomnir,
pro hac vice & Stephen A. Antonelli -- santonelli@babstcalland.com
-- Babst, Calland, Clements and Zomnir, P.C., pro hac vice.
Does 1-20, Defendant, represented by Charles Collins Warner, Porter
Wright Morris & Arthur, Rebecca Dick-Hurwitz, Babst, Calland,
Clements & Zomnir, PC & Richard J. Antonelli, Babst Calland
Clements & Zomnir, pro hac vice.
PPG Retirement Plans, Defendant, represented by Richard J.
Antonelli, Babst Calland Clements & Zomnir & Rebecca Dick-Hurwitz,
Babst, Calland, Clements & Zomnir, PC.
United Steel, Paper and Forestry, Rubber Manufacturing, Energy,
Allied Industrial and Service Workers International Union,
AFL-CIO/CLC, Movant, represented by Ellen M. Doyle, Feinstein Doyle
Payne & Kravec, LLC, pro hac vice & William T. Payne, Feinstein
Doyle Payne & Kravec, LLC.
PRAXAIR INC: Court Wants Class Notice in Garcia Suit Amended
------------------------------------------------------------
The Hon. John A. Kronstadt seeks more information, including
submission of amended class notice, in connection with the
Plaintiffs' Motion for Preliminary Approval of Class Action
Settlement and PAGA Action Settlement and Certification of
Settlement Class in the lawsuit captioned Rita Garcia v. Praxair,
Inc., et al., Case No. 2:18-cv-08170-JAK-AFM (C.D. Cal.).
According to the Court's Civil Minutes, the motion hearing was held
and the Court stated its tentative views that it is inclined to
grant the Plaintiffs' Motion. However, the Court directed the
class representative to file a declaration regarding what work she
completed with respect to this case, and how many hours she spent
on different tasks, as well as an amended class notice that
includes the language in the settlement agreement as to the right
of each class member to dispute the information in his or her
notice packet, including the number of work weeks for which he or
she has been credited and the amount of his or her individual
settlement payment.
Upon receipt of these submissions, the Motion will be taken under
submission and a written ruling will be issued, according to the
Civil Minutes.[CC]
The Plaintiff is represented by:
Howard S. Leviant, Esq.
MOON AND YANG APC
1055 West 7th St., Suite 1880
Los Angeles, CA 90017
Telephone: (213) 232-3128
Facsimile: (213) 232-3125
E-mail: scott.leviant@moonyanglaw.com
The Defendants are represented by:
Kimberli A. Williams, Esq.
Carlos Jimenez, Esq.
LITTLER MENDELSON PC
633 West Fifth St., 63rd Floor
Los Angeles, CA 90071
Telephone: (213) 443-4246
Facsimile: (213) 443-4299
E-mail: kawilliams@littler.com
cajimenez@littler.com
PROFILE DEVELOPMENT: Jones Files ADA Suit in E.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Profile Development,
LLC. The case is styled as Kahlimah Jones, Individually and as the
representative of a class of similarly situated persons, Plaintiff
v. Profile Development, LLC, Defendants, Case No. 1:19-cv-05468
(E.D. N.Y., Sept. 26, 2019).
The Plaintiff filed the case under the Americans with Disabilities
Act.
Profile Development LLC is a privately held company in Sioux Falls,
SD and is a Single Location business categorized under Management
Services.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
Shaked Law Group, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
PROPETRO HOLDING: Rigrodsky & Long Files Class Action Lawsuit
-------------------------------------------------------------
Rigrodsky & Long, P.A., announces that a complaint has been filed
in the United States District Court for the Western District of
Texas on behalf of all persons or entities that purchased the
common stock of ProPetro Holding Corp. ("ProPetro" or the
"Company") (NYSE:PUMP) between March 17, 2017 and August 8, 2019,
inclusive, including those investors who acquired ProPetro shares
pursuant or traceable to its initial public offering ("IPO") in
March 2017 (collectively, the "Class Period), alleging violations
of the Securities Exchange Act of 1933 and the Securities Exchange
Act of 1934 against the Company and certain of its officers (the
"Complaint").
If you purchased shares of ProPetro in the March 2017 offering, or
during the period March 17, 2017 and August 8, 2019, inclusive, and
wish to discuss this action or have any questions concerning this
notice or your rights or interests, please contact Seth D.
Rigrodsky or Timothy J. MacFall at Rigrodsky & Long, P.A., 300
Delaware Avenue, Suite 1220, Wilmington, DE 19801, by telephone at
(888) 969-4242, by e-mail at info@rl-legal.com, or at
http://rigrodskylong.com/contact-us/
The Complaint alleges that throughout the Class Period, defendants
made materially false and misleading statements, and omitted
materially adverse facts, about the Company's business, operations
and prospects. Specifically, the Complaint alleges that the
defendants concealed from the investing public: (1) that the
Company's executive officers were improperly reimbursed for certain
expenses; (2) that the Company had engaged in certain undisclosed
transactions with related parties; (3) that the Company lacked
adequate disclosure controls and procedures; (4) that the Company
lacked effective internal control over financial reporting; 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' alleged false and misleading statements, the
Company's stock traded at artificially inflated prices during the
Class Period.
According to the Complaint, on March 20, 2017, the Company filed
its prospectus on Form 424B4 with the SEC, which forms part of the
Registration Statement. In the IPO, the Company sold 25 million
shares of common stock at a price of $14.00 per share.
Then, on August 8, 2019, after the market closed, the Company
issued a press release delaying its second quarter earnings
conference call and quarterly report, citing an ongoing review by
its audit committee. In a Form 8-K filed with the SEC on the same
day, the Company stated that the review concerned, among other
things, expense reimbursements and certain transactions involving
related parties or potential conflicts of interest. The Form 8-K
also stated that approximately $370,000 had been improperly
reimbursed to members of senior management. Moreover, the Company
expected to report a material weakness in its internal control over
disclosure.
On this news, shares of ProPetro fell over 26%, closing at $12.75
per share on August 9, 2019, on heavy trading volume.
If you wish to serve as lead plaintiff, you must move the Court no
later than November 15, 2019. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Any member of the proposed class may move the court to
serve as lead plaintiff through counsel of their choice, or may
choose to do nothing and remain an absent class member.
Rigrodsky & Long, P.A., with offices in Delaware, New York, and
California, has recovered hundreds of millions of dollars on behalf
of investors and achieved substantial corporate governance reforms
in numerous cases nationwide, including federal securities fraud
actions, shareholder class actions, and shareholder derivative
actions.
CONTACT:
Seth D. Rigrodsky, Esq.
Timothy J. MacFall, Esq.
Rigrodsky & Long, P.A.
Tel: (888) 969-4242
(516) 683-3516
Fax: (302) 654-7530
Email: info@rl-legal.com,
Website: http://www.rigrodskylong.com[GN]
PRUCO LIFE: Behfarin's Class Cert. Bid Denied Without Prejudice
---------------------------------------------------------------
The Hon. Michael W. Fitzgerald denies without prejudice the
Plaintiff's motion for class certification in the lawsuit titled
RICHARD BEHFARIN, individually and on behalf of a class of
similarly situated individuals v. PRUCO LIFE INSURANCE COMPANY,
Case No. 2:17-cv-05290-MWF-FFM (C.D. Cal.).
Judge Fitzgerald also extended from September 20, 2019, until
September 27, 2019, the Plaintiff's Motion for Preliminary Approval
of Class Action Settlement.
In light of the parties' representation that a Motion for
Preliminary Approval will be filed, the Court vacated the hearing
on the Motion for Class Certification, and denied the Motion
without prejudice.[CC]
PURDUE PHARMA: Court Stays Culperer & Charlotte Opiate Suits
------------------------------------------------------------
Judge Elizabeth K. Dillon of the U.S. District Court for the
Western District of Virginia, Charlottesville Division, granted the
Defendants' motions to stay the cases, CULPEPER COUNTY, VIRGINIA,
Plaintiff, v. PURDUE PHARMA, L.P., et al., Defendants. CHARLOTTE
COUNTY, VIRGINIA, Plaintiff, v. PURDUE PHARMA, L.P., et al.,
Defendants, Civil Action Nos. 3:19-cv-00037, 4:19-cv-00029 (W.D.
Va.), temporarily pending a decision by the Judicial Panel on
Multidistrict Litigation ("JPML") as to whether they'll be
transferred to a pending multi-district litigation action, In re:
National Prescription Opiate Litigation, MDL No. 2804 ("Opiate
MDL").
The two cases, which are substantially similar to other cases
pending before the Court, were both filed in state court and
removed by one group of the Defendants. Then, a supplemental
notice of removal was filed in each case by other Defendants.
Considering both notices of removal jointly, each case has been
removed on the same jurisdictional bases: federal question
jurisdiction, diversity jurisdiction, and jurisdiction under the
Class Action Fairness Act.
The Plaintiff in each case -- a locality in the Commonwealth of
Virginia --asserts claims against four groups of Defendants: (1)
manufacturers of various opioid pain medications; (2) distributors
of those medications; (3) pharmacy benefit manager ("PBM")
Defendants; and (4) Doe defendants. The Plaintiffs allege that
some or all the Defendants misrepresented the safety and the
addictive properties of prescription opioids and engaged in conduct
that resulted in prescription opioids being over-distributed and
over-prescribed, such as failing to report or halt suspicious
orders and encouraging doctors to over-prescribe.
Pending before the Court are three motions in each case: (1) the
Plaintiff's motion to remand (responding to the original notice of
removal); (2) the Plaintiff's supplemental motion to remand
(responding to the jurisdictional grounds asserted in the
supplemental notice of removal); and (3) the Defendants' motion to
stay. The motions to stay ask the Court to stay the cases and
delay consideration of the remand motions pending a decision by the
JPML on whether the cases will be transferred to the Opiate MDL.
These cases are part of a series of opioid cases filed by
localities in the Western District of Virginia. Both are currently
subject to a conditional transfer order ("CTO") entered by the JPML
on May 7, 2019. Timely objection was made to the CTO, and these
matters are set for a Sept. 26, 2019 hearing on the oppositions of
the Plaintiffs to transfer of their actions to the U.S. District
Court for the Northern District of Ohio. If a final transfer is
ordered, it is likely that it will occur after that hearing.
Judge Dillon explainst that in an opinion in the "first wave" of
like cases, the Court addressed the same overarching issues that
are raised in these cases. As the Court noted there and as the
parties agree, the existence of a CTO does not deprive the Court of
authority to address the jurisdictional issues raised by the
motions to remand and supplemental motions to remand. Nonetheless,
for the same reasons set forth in its prior memorandum opinion, the
Court concludes that a stay of these actions is appropriate. In
particular, the Court concludes that the issue of whether there is
diversity jurisdiction in the case is factually and legally
complicated and that the purposes underlying the stay are served by
granting one in the instant cases. Upon the likely transfer of
these cases to the Opiate MDL, the MDL court can address the remand
motions.
The Plaintiffs identify several factual developments that they seem
to suggest should change the Court's prior analysis. First, they
note that the remand motions in the cases transferred to the Opiate
MDL (both by the Court and by other courts) still have not been
addressed by that Court and remain pending, some of them for more
than a year. Second, the Plaintiffs point out that some of the
Defendants have made public statements regarding the possibility of
their filing for bankruptcy.
The Judge has considered these additional circumstances, but they
do not alter the Court's prior conclusion. Even assuming that
those facts increase the possible prejudice to the Plaintiffs
resulting from a stay, the Court must assess those facts in
conjunction with the other relevant factors: the length of the
stay, the hardship to the Defendants if a stay were denied, and,
most importantly, whether the stay would promote judicial economy
by avoiding duplicative litigation. A consideration of all the
factors leads the Judge to conclude that staying these cases
remains an appropriate course of action for all the reasons set
forth in the Court's prior order and in the exercise of its
discretion.
It is also worth noting that, subsequent to the Court's decision in
City of Galax, most judges presiding over "second wave" cases in
the Western and Eastern Districts of Virginia have stayed the cases
pending the transfer decision rather than ruling on motions to
remand. Overall, then, many similar Virginia cases raising the
same jurisdictional issues likely will be before the Opiate MDL.
Accordingly, the factor of judicial economy and efficiency supports
a stay, perhaps even more strongly than when the Court ruled in
City of Galax.
For these reasons, JUdge Dillon granted the Defendants' motions to
stay. These cases are stayed temporarily pending a decision by the
JPML as to whether they'll be transferred to the Opiate MDL.
A full-text copy of the Court's Aug. 16, 2019 Order is available at
https://is.gd/PnZDme from Leagle.com.
Culpeper County, Virginia, Plaintiff, represented by Bobbi Jo
Alexis, County of Culpeper Office of the County Attorney, Richard
Johan Conrod, Jr. -- rjconrod@kaufcan.com -- Kaufman & Canoles,
P.C. & William Edgar Spivey -- wespivey@kaufcan.com -- Kaufman &
Canoles, P.C.
Purdue Pharma L.P., Purdue Pharma Inc. & The Purdue Frederick
Company, Inc., Defendants, represented by Wade W. Massie --
wmassie@pennstuart.com -- Penn Stuart & Eskridge.
CVS Pharmacy, Inc., CVS TN Distribution, L.L.C., Caremark RX,
L.L.C., CaremarkPCS Health, L.L.C. & Caremark, L.L.C., Defendants,
represented by Samuel Perry Coburn -- pcoburn@cblaw.com --
Christian and Barton, LLP & Shannon Marie Fitzgerald , Christian
and Barton, LLP.
UnitedHealth Group Incorporated, Optum, Inc. & OptumRx, Inc.,
Defendants, represented by Turner Anderson Broughton --
tbroughton@williamsmullen.com -- Williams Mullen.
QUINCY BIOSCIENCE: Collins Moves to Certify Two FDUTPA Classes
--------------------------------------------------------------
The Plaintiffs in the lawsuit entitled JUAN COLLINS and JOHN
FOWLER, on behalf of themselves and all others similarly situated
v. QUINCY BIOSCIENCE, LLC, a Wisconsin limited liability company,
Case No. 1:19-cv-22864-MGC (S.D. Fla.), move for certification of
Florida-only statewide classes asserting claims against the
Defendant pursuant to Florida's Deceptive and Unfair Trade
Practices Act.
The Plaintiffs seek class certification under Rules 23(a), (b)(2)
and (b)(3), and (c)(4) of the Federal Rules of Civil Procedure of
these Florida-only FDUTPA Classes:
* Pursuant to Rule 23(a) and (b)(3), during the fullest period
allowable by law, all Florida consumers who purchased
Prevagen; and
* Pursuant to Rule 23(a) and (b)(2), during the fullest period
allowable by law, all Florida consumers who purchased
Prevagen.
Excluded from the Classes are Quincy and its officers, directors,
affiliates, legal representatives, and employees, any governmental
entities, any judge, justice, or judicial officer presiding over
this matter and the members of their immediate families and
judicial staff, and those who purchased Prevagen for resale.
Juan Collins and John Fowler also ask the Court to appoint them as
Class Representatives, and appoint the law firms of The Moskowitz
Law Firm PLLC and Searcy Denney Scarola Barnhart & Shipley PA as
Class Counsel.
The Plaintiffs contend that their claims, which seek redress for
Quincy's uniform deceptive marketing and sales throughout the State
of Florida of Prevagen, are well-suited for class treatment.[CC]
The Plaintiffs are represented by:
Adam Moskowitz, Esq.
Howard M. Bushman, Esq.
Joseph M. Kaye, Esq.
Curtis E. Osceola, Esq.
THE MOSKOWITZ LAW FIRM, PLLC
2 Alhambra Plaza, Suite 601
Coral Gables, FL 33134
Telephone: (305) 740-1423
E-mail: adam@moskowitz-law.com
howard@moskowitz-law.com
joseph@moskowitz-law.com
curtis@moskowitz-law.com
- and -
Jack Scarola, Esq.
SEARCY DENNEY SCAROLA BARNHART & SHIPLEY PA
2139 Palm Beach Lakes Blvd.
West Palm Beach, FL 33409
Telephone: (561) 686-6300
Facsimile: (561) 383-9451
E-mail: jsx@searcylaw.com
RC HOLDINGS: Traylor Asserts Breach of Disabilities Act
-------------------------------------------------------
RC Holdings, Inc. is facing a class action lawsuit filed pursuant
to the Americans with Disabilities Act. The case is styled as
Yaseen Traynor also known as: Yaseen Traylor other, on behalf of
himself and all others similarly situated, Plaintiff v. RC
Holdings, Inc., Defendant, Case No. 1:19-cv-08891 (S.D. N.Y., Sept.
25, 2019).
RC Holding Inc. provides a range of services to clients in
government and industry.[BN]
The Plaintiff is represented by:
Russel Craig Weinrib, Esq.
Stein Saks PLLC
285 Passaic St., Suite 5
Hakensack, NJ 07601
Tel: (201) 282-6500
Email: rweinrib@steinsakslegal.com
SAN JOSE, CA: Trump Rally Violence Case Won't Be Class Action
-------------------------------------------------------------
Tish Kraft, writing for Courthouse News Service, reports that a
federal judge has declined to certify a class of people injured at
a June 2016 Donald Trump rally in San Jose, California, in which
those suing the city claim police officers directed them into a mob
of angry anti-Trump protesters.
After attending a rally for then-presidential candidate Trump at
the McEnery Convention Center, Trump supporters claim they faced
threats and intimidation, and some were beaten and assaulted when
San Jose Police would not allow them to exit except through the
anti-Trump protesters.
The action, originally filed on behalf of the plaintiffs by
attorney HarmeetDhillon of San Francisco in July 2016 has been
substantially narrowed since by U.S. District Judge Lucy Koh.
Specifically, Koh has severed and dismissed state law claims
against individual private citizens, allowing them to be refiled in
state court.
This left claims against city defendants, including police
officers.
Police chief Eddie Garcia, who helped devise the incident action
plan for the rally -- but who was not on duty the night of the
rally -- saw all claims against him dismissed. San Jose Mayor Sam
Liccardo has also been dismissed.
In late May, the plaintiffs moved for class certification seeking
injunctive relief for civil rights violations committed "under the
color of state law." They also sought to certify a subclass of
those who were injured or whose property was damaged because of
"state-created danger and negligence," according to Koh's order
issued September 17.
However, Koh found neither the required predominance nor
commonality within the proposed subclass and denied certification
of it.
"Common issues cannot predominate where 'individualized inquiries'
are necessary that 'go to key elements of the class's claims,' Koh
wrote, citing Andrews v. Plains All Am. Pipeline.
The subclass falls, primarily due to the fourteen individual
altercations alleged, where "individualized inquiries [are]
necessary to establish defendants' liability," and "the
impossibility of calculating damage on a classwide basis," both of
which defeat predominance.
Also, "plaintiffs' failure to identify a classwide course of
conduct" defeats commonality, Koh wrote.
"The on-duty officers are not a monolith, they are individual
officers making independent judgments and decisions," Koh wrote.
"Their individual actions thus do not automatically constitute a
classwide course of conduct.
"Plaintiffs fail to specify how or even whether the on-duty
officers acted in concert, such as through some sort of centralized
decision-making. Nor do plaintiffs indicate at what point
plaintiffs believe the danger became 'known or obvious' to each of
the individual on-duty officers, such that following the incident
action plan was no longer appropriate," she continued.
Finally, Koh found the putative class lacks standing for injunctive
relief because they can't definitively show the defendant officers
will repeat the supposedly harmful conduct and that the plaintiffs
will suffer from future supposedly harmful conduct.
"We respect Judge Koh and the effort she has put into looking at
all the evidence and applying the law," plaintiffs' attorney
HarmeetDhillon, Esq. wrote in an email after the ruling. "We
disagree with aspects of these rulings on class and subclass
certification, and are considering our options with our clients, at
this time. Importantly, the individual victims' claims still exist
and may proceed. For Juan Hernandez, Rachel Casey, and the other
plaintiffs assaulted and injured that day, we intend to continue to
pursue justice," Dhillon continued.
SAREPTA THERAPEUTICS: Bronstein Gewirtz Files Securities Class Suit
-------------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC, notifies investors that a class
action lawsuit has been filed against Sarepta Therapeutics, Inc.
("Sarepta" or the "Company") (SRPT) and certain of its officers, on
behalf of shareholders who purchased or otherwise acquired Sarepta
securities between September 6, 2017 and August 19, 2019, both
dates inclusive. Such investors are encouraged to join this case by
visiting the firm's site: www.bgandg.com/srpt
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws under the
Securities Exchange Act of 1934.
The complaint alleges that throughout the Class Period, defendants
made false and/or misleading statements and/or failed to disclose
that: (1) golodirsen posed significant safety risks to patients;
(2) consequently, the NDA package for golodirsen's accelerated
approval was unlikely to receive FDA approval; and (3) as a result,
Sarepta's public statements were materially false and misleading at
all relevant times.
On August 19, 2019, post-market, Sarepta announced receipt of a
Complete Response Letter ("CRL") from the FDA regarding the
Company's NDA seeking accelerated approval of golodirsen for the
treatment of DMD. Sarepta disclosed that "[t]he CRL generally cites
two concerns: the risk of infections related to intravenous
infusion ports and renal toxicity seen in pre-clinical models of
golodirsen and observed following administration of other antisense
oligonucleotides." Following this news, Sarepta's stock price fell
$18.24 per share, or 15.16%, to close at $102.07 per share on
August 20, 2019.
If you wish to review a copy of the Complaint you can visit the
firm's site: www.bgandg.com/srpt or you may contact Peretz
Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of
Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered
a loss in Sarepta you have until October 29, 2019 to request that
the Court appoint you as lead plaintiff. A lead plaintiff acts on
behalf of all other class members in directing the litigation. The
lead plaintiff can select a law firm of its choice. Your ability to
share in any recovery doesn't require that you serve as a lead
plaintiff.
Bronstein, Gewirtz & Grossman, LLC is a corporate litigation
boutique. Our primary expertise is the aggressive pursuit of
litigation claims on behalf of our clients. In addition to
representing institutions and other investor plaintiffs in class
action security litigation, the firm's expertise includes general
corporate and commercial litigation, as well as securities
arbitration.
Contact:
Peretz Bronstein, Esq.
Yael Hurwitz, Esq.
Bronstein, Gewirtz & Grossman, LLC
Tel: 212-697-6484
Email: info@bgandg.com
peretz@bgandg.com [GN]
SCHERING-PLOUGH: 3d Cir. Revives Opt-Out Securities Claims
----------------------------------------------------------
Charles Toutant, writing for New Jersey Law Journal, reports that
federal securities law does not preclude Merck and Schering-Plough
investors from bringing individual suits against the drugmakers
under state law after opting out of a securities class action
settlement, the U.S Court of Appeals for the Third Circuit ruled.
By a 2-1 margin, the appeals court reversed the order of a federal
trial judge who dismissed state-law fraud claims against the
drugmakers under the preclusion provision of the Securities
Litigation Uniform Standards Act. But SLUSA does not disturb the
right to opt out of a class action, and U.S. District Judge Freda
Wolfson of the District of New Jersey, who dismissed the 16
plaintiffs' opt-out suits, was wrong to deride their lawsuits as
"gamesmanship," the Third Circuit ruled.
The case concerns shareholder litigation against Merck and
Schering-Plough over their attempts to conceal unfavorable clinical
trial results about effectiveness of two of the drugmakers'
blockbuster cholesterol drugs, Vytorin and Zetia. Plaintiffs
alleged that the companies postponed release of the reports while
it conducted a $4 billion stock offering to the public. When the
results for the two drugs became public in 2007, Merck's stock
price declined 38% and Schering's fell 52%.
A series of securities class actions followed. In 2013, Merck,
which by that time had merged with Schering, settled the litigation
for $688 million.
Merck argued before Wolfson that the state-law claims were
precluded under SLUSA because the class actions and opt-out suits
were "joined, consolidated, or otherwise proceeding as a single
action for any purpose."
Wolfson concluded that the plaintiffs' claims were barred under
SLUSA because the individual suits and class actions have proceeded
as a single action. She inferred that because Congress did not
explicitly exempt opt-out suits from SLUSA, it necessarily
"envisioned the aggregation of opt-out suits with related class
actions" under SLUSA's mass-action provision. She also concluded
that SLUSA's legislative history required it to "construe the
definition of a ‘covered class action' broadly," the appeals
court said. Wolfson also drew upon several district court decisions
that, "building upon each other, have espoused increasingly
capacious interpretations of the mass-action provision," the
appeals court said.
On appeal, Judge Cheryl Ann Krause of the U.S. Court of Appeals for
the Third Circuit wrote for the court that Merck gave a "strained
reading" of the single action requirement that demanded a mere
"functional relationship" between two suits. Judge Stephanos Bibas
joined Krause in the opinion.
Merck's reading is "an amorphous standard so broad and flexible"
that it would "seemingly embrace every suit that happens to share
similar substantive allegations," and thus "contravenes both the
plain text and underlying constitutional principles," Krause
wrote.
Krause wrote that since Congress adopted the Securities Act of
1933, it has embraced a dual system of remedies for aggrieved
investors under federal and state law. But Congress enacted SLUSA
in 1998 to curtail a shift of securities litigation class actions
to state courts. That law still permitted individual plaintiffs or
groups of fewer than 50 plaintiffs to enforce any state-law cause
of action, but precludes investors from litigating their state-law
claims alleging securities fraud through a "covered class action."
Under SLUSA, a covered class action includes lawsuits that are
"filed in or pending in the same court"; involve common legal or
factual questions; seek damages for more than 50 persons; and "are
joined, consolidated, or otherwise proceed as a single action for
any purpose."
Merck contended that the "joined, consolidated, or otherwise
proceeded as a single action for any purpose" condition applied to
the present litigation and interpreted the single action
requirement to consist of a "functional relationship" between the
suits. But the appeals court called that standard "amorphous" and
said it was "so broad and flexible that it would seemingly embrace
every suit that happens to share similar substantive allegations."
Merck's "strained reading contravenes both the plain text and
underlying constitutional principles," Krauss wrote. Some
coordination is required to constitute a single action and there
was no such coordination between the opt-out plaintiffs and the
prior class actions, the court said.
Judge Patty Shwartz dissented, saying the opt-out plaintiffs, as
members of the class, benefited in numerous pretrial proceedings in
the Vytorin and Zetia litigation. Therefore, their opt-out actions
functionally proceeded as a single action with the class suits,
Shwartz said. Therefore, the opt-out suits were correctly dismissed
by Wolfson under SLUSA's preclusion provision.
Merck and attorney at Daniel Kramer, Esq. -- dkramer@paulweiss.com
-- of Paul, Weiss, Rifkind, Wharton & Garrison in New York, who
argued for the drugmaker, did not respond to a request for comment.
Daniel Juceam, Esq. -- djuceam@paulweiss.com -- and Theodore Wells
Jr., Esq. -- twells@paulweiss.com -- were also part of the Paul
Weiss team representing Merck.
Daniel Hume, Esq. -- dhume@kmllp.com -- of Kirby McInerney in New
York, who argued for the opt-out plaintiffs, did not respond to a
request for comment. Hume was also joined by colleagues Karina
Kosharskyy, Esq. -- kkosharskyy@kmllp.com --, Ira Press, Esq. --
ipress@kmllp.com -- and Meghan Summers, Esq. -- msummers@kmllp.com
[GN]
SEAFOOD SHANTY: Hristozov Sues Over Routine Nonpayment of Wages
---------------------------------------------------------------
Grigor B. Hristozov and Karolina M. Hristova individually and on
behalf of all others similarly situated, Plaintiffs, v. SEAFOOD
SHANTY RESTAURANT MANAGEMENT, INC., FRANK J. PELLEGRINO, and DENISE
PAGE, Defendants, Case No. 1:19-cv-11985-PBS (Commonwealth of
Mass., Sept. 19, 2019) is a class action arising from Defendants'
routine nonpayment of wages and failure to pay minimum wage, and
further violation of multiple state and federal employee-rights
statutes.
Plaintiffs seeks damages under various bases including the
Massachusetts Wage Act, the Fair Labor Standards Act, and contract
law theories.
The complaint asserts that the Defendants have routinely and
consistently taken hours off Plaintiffs' paycheck, without
explanation or justification; paid Plaintiffs less than minimum
wage, by misclassifying them as tipped employees and illegally
applying a tip credit; failed to give appropriate breaks, and
threatened to retaliate against Plaintiffs for taking breaks;
failed to post required workplace notices apprising Plaintiffs of
their rights; breached their contract with Plaintiffs; an violated
other rights of Plaintiffs under state and federal law.
Plaintiffs were employed by Defendants in various positions
including such positions as security, hostess, busser, and runner.
SSRMI operates a restaurant complex in Edgartown, Massachusetts,
located at #29 and #31 Dock St., Edgartown, Massachusetts.[BN]
The Plaintiff is represented by:
Erik Hammarlund, Esq.
Hammarlund Law Office
PO Box 2487
10 State Rd., Unit B-3
Vineyard Haven, MA 02568
Phone: (508) 696-7700
Fax: (508) 696-7705
Email: eh@hammarlundlaw.com
SEAWORLD: Former VP Deposed as Part of Investors' Class Action
--------------------------------------------------------------
A former SeaWorld executive admitted under oath that he did not
tell the public the truth about how the documentary "Blackfish" was
impacting the company, newly released court records show.
Fred Jacobs, SeaWorld's former vice president of communications,
was deposed as part of a class action lawsuit filed against the
company by some shareholders.
The investors claim SeaWorld executives misled them about how the
film was hurting theme park attendance and revenue.
"Blackfish," a documentary critical of keeping killer whales in
captivity, was released to theaters in July 2013.
The following month, after the company reported a drop in theme
park visitation, Jacobs told the financial publication Bloomberg,
"We can attribute no attendance impact at all to the movie."
In a newly released deposition transcript, Jacobs acknowledged he
was not truthful with the reporter.
"Was that a true statement when you made it?" an attorney
representing the plaintiffs asked.
"No," replied Jacobs.
The attorney later asked the former SeaWorld executive if he knew
whether the statement was untrue when he made it.
"I didn't believe it to be true," Jacobs said.
About a year after Jacobs denied "Blackfish" was hurting SeaWorld,
the company acknowledged negative publicity related to the
documentary was, in fact, negatively impacting the company.
In August 2014, SeaWorld's stock price plunged more than 33
percent. It has since recovered.
Two of the plaintiffs in the class action lawsuit, the Arkansas
Public Employees Retirement System and a teacher's pension fund
based in Denmark, said they suffered more than $4 million in losses
as a result of SeaWorld's misleading statements.
"Jacobs confessed that he lied on behalf of SeaWorld," the
plaintiffs wrote in a recent court filing. "The factual record in
securities fraud cases rarely contains the types of explosive and
compelling evidence that Plaintiffs have developed here."
SeaWorld has denied any wrongdoing as is attempting to get the
class action lawsuit dismissed.
SeaWorld did not immediately respond to an email from News 6
offering an opportunity to comment.
Jacobs, who left the company in 2015, could not immediately be
reached for comment.
Last year Jacobs agreed to settle a fraud charge with the
Securities and Exchange Commission for $100,000.
SeaWorld and its former chief executive officer, James Atchison,
agreed to settle the SEC's charges for $5 million without admitting
or denying the allegations.
Transcripts from Jacobs' deposition is among thousands of pages of
previously confidential court records that were made public
September 13. [GN]
SEQUOIA FUND: Ropes & Gray Secures Dismissal of Class Suit
----------------------------------------------------------
Ropes & Gray litigation team secured the dismissal of a shareholder
lawsuit against the Sequoia Fund, addressing the issue of industry
concentration in mutual funds under SEC guidance.
In a decision ratifying the mutual fund industry's long-standing
treatment of portfolio concentration, the U.S. Court of Appeals for
the Second Circuit affirmed the trial court's earlier rejection of
a putative class action against the Fund.
In Edwards v. Sequoia Fund, Inc., the shareholder-plaintiffs
alleged that the Fund violated its industry concentration policy
when healthcare stocks grew to comprise more than 25% of the Fund's
assets in 2015, due to strong growth in the value of its holdings
in Valeant Pharmaceuticals, Inc. The Fund's healthcare position
grew to more than 25% due solely to increases in Valeant's share
price, not because of any additional share purchases.
Applying SEC guidance from 1983, the Second Circuit affirmed the
trial court's holding that such "passive" increases in
concentration cannot constitute a policy violation, rejecting the
plaintiffs' claim that the SEC guidance had been rescinded.
The Ropes & Gray litigation team representing the Sequoia Fund is
led by Boston-based litigation and enforcement partners Robert A.
Skinner (Picture) and Amy D. Roy, and New York-based litigation and
enforcement counsel Lee Gayer.
Involved fees earner: Lee Gayer, Esq., at Ropes & Gray; Amy Roy,
Esq., Ropes & Gray; Robert Skinner, Esq., Ropes & Gray; Law Firms:
Ropes & Gray;
Clients: Sequoia Fund, Inc. [GN]
THINK FINANCE: Sequoia, TCV File Certiorari Petition in "Gingras"
-----------------------------------------------------------------
Defendants Sequoia Capital Operations, LLC, and TCV V, L.P., filed
with the Supreme Court of United States a petition for a writ of
certiorari in the matter styled SEQUOIA CAPITAL OPERATIONS, LLC;
TCV V, L.P.; Petitioners v. JESSICA GINGRAS, ON BEHALF OF HERSELF
AND OTHERS SIMILARLY SITUATED; ANGELA C. GIVEN, ON BEHALF OF
HERSELF AND OTHERS SIMILARLY SITUATED, Respondents, Case No.
19-331.
Response is due on October 11, 2019.
Petitioners Sequoia and TCV petition for a writ of certiorari to
review the judgment of the United States Court of Appeals for the
Second Circuit in the case titled JESSICA GINGRAS, ON BEHALF OF
HERSELF AND OTHERS SIMILARLY SITUATED, ANGELA C. GIVEN, ON BEHALF
OF HERSELF AND OTHERS SIMILARLY SITUATED, Plaintiffs-Appellees v.
THINK FINANCE, INC., TC LOAN SERVICE, LLC, KENNETH E. REES, FORMER
PRESIDENT AND CHIEF EXECUTIVE OFFICER AND CHAIRMAN OF THE BOARD OF
THINK FINANCE, TC DECISION SCIENCES, LLC, TAILWIND MARKETING, LLC,
SEQUOIA CAPITAL OPERATIONS, LLC, TECHNOLOGY CROSSOVER VENTURES,
JOEL ROSETTE, OFFICIAL CAPACITY AS CHIEF EXECUTIVE OFFICER OF PLAIN
GREEN, TED WHITFORD, OFFICIAL CAPACITY AS A MEMBER OF PLAIN GREEN'S
BOARD OF DIRECTORS, TIM MCINERNEY, Defendants-Appellants, Case Nos.
16-2019, 16-2132, 16-2135, 16-2138, 16-2140, in the United States
Court of Appeals for the Second Circuit. The Court of Appeals
affirmed the District Court's order denying the motions to compel
arbitration on April 24, 2019.
The question presented is: Where an arbitration agreement contains
a separate "delegation provision" that reserves for an arbitrator
the authority to decide any disputes concerning arbitrability, does
Section 2 of the Federal Arbitration Act require a court to decide
any challenge to that provision's validity before the court may
proceed to address whether the parties' underlying dispute is
arbitrable?
As previously reported in the Class Action Reporter, Judge Peter W.
Hall of the Second Circuit affirmed the judgment of the District
Court denying (i) the Tribal Defendants' motion to dismiss, and
(ii) all the Defendants' motion to compel arbitration.
The suit involves payday loans made by Plain Green, LLC, an online
lending operation, which holds itself out as a "tribal lending
entity wholly owned by the Chippewa Cree Tribe of the Rocky Boy's
Indian Reservation, Montana. The borrowers are
Plaintiffs-Appellees Jessica Gingras and Angela Given, who are
Vermont residents. In July 2011, Gingras borrowed $1,050 at an
interest rate of 198.17% per annum. She repaid that loan and
borrowed an additional $2,900 a year later, this time with an
interest rate of 371.82%. She has not repaid the second loan. Also
in July 2011, Given borrowed $1,250 at a rate of 198.45%. Given
paid off that loan in July 2012 and, within a few days of
repayment, took out another loan for $2,000 at a rate of 159.46%.
She also borrowed $250 in May 2013 at a rate of 376.13%, which she
repaid quickly, and in July 2013 borrowed $3,000 at a rate of
59.83%. Given has not repaid the most recent loan.
To receive their loans, Gingras and Given were required to sign
loan agreements. Those loan agreements provide for arbitration in
the event of a dispute between the borrower and Plain Green. They
also provide that Chippewa Cree tribal law governs the loan
agreement and any dispute arising under it. The agreements'
command to apply tribal law also includes provisions stating
neither the Agreement nor the Lender is subject to the laws of any
state of the United States, and the agreements are subject solely
to the exclusive laws and jurisdiction of the Chippewa Cree Tribe
of the Rocky Boy Indian Reservation such that no other state or
federal law or regulation will apply. To the extent that AAA or
JAMS policies and procedures conflict with tribal law, tribal law
prevails. The loan agreements allow borrowers to opt out of
arbitration, but only if they exercise that option within 60 days
of receiving the loan. If a borrower opts out, the agreements
provide that their only recourse is to sue under tribal law in
tribal courts. Neither Gingras nor Given opted out.
Gingras and Given allege that the loan agreements violate Vermont
and federal law. The loans originated from Plain Green, LLC.
Plain Green's CEO is Defendant Joel Rosette; two members of Plain
Green's Board of Directors, Ted Whitford and Tim McInerney, are
also Defendants. Gingras and Given sued all three ("Tribal
Defendants"), in their official capacities for prospective
declaratory and injunctive relief.
The suit also names as Defendants Think Finance, Inc. and its
former President, CEO, and Chairman of the Board, Kenneth Rees.
Plain Green employs Think Finance and its subsidiaries, Defendants
TC Decision Sciences, LLC, Tailwind Marketing, LLC, and TC Loan
Service, LLC, to service Plain Green loans. Defendants Sequoia
Capital Operations, LLC and Technology Crossover Ventures provide
funding for the lending operation.
The Plaintiffs allege that Think Finance and the Tribe agreed on
various terms for the loans, including charging annual interest
rates between 60% and 360% and establishing a maximum loan amount
of $2,500. They allege that this arrangement was created to
"circumvent" the stringent laws that have been enacted to prescribe
how loans can be made and to prevent lenders from preying on
indigent people, and to take advantage of legal doctrines, such as
tribal immunity, to avoid liability for their actions in violating
various federal and state lending laws.
Gingras and Given brought the class action in the District of
Vermont, seeking, among other relief, an order barring the
Defendants from continuing their current lending practices.
Relevant to the appeal, the Tribal Defendants moved to dismiss,
arguing that they are entitled to tribal sovereign immunity. The
district court disagreed and denied their motion. It concluded
that tribal sovereign immunity does not bar suit against the Tribal
Defendants in their official capacities for prospective, injunctive
relief under a theory analogous to Ex parte Young. Specifically,
the district court read the Supreme Court's decision in Michigan v.
Bay Mills Indian Community, to condone that form of action to
vindicate violations of state law.
All the Defendants also moved to compel arbitration pursuant to the
loan agreements. The district court denied those motions. It
concluded that the arbitration agreements are unconscionable and
unenforceable because they insulate Defendants from claims that
they have violated state and federal laws. In particular, it held
that because the agreements apply tribal law exclusively and
restrict all arbitral awards review solely by a tribal court, the
neutral arbitral forum is illusory. All the Defendants timely
appealed.
The Tribal Defendants argue that because Plain Green is an "arm of
the Tribe," they are entitled to immunity from all state law claims
as well as the Plaintiffs' federal RICO claim. Judge Hall
disagrees and holds that under a theory analogous to Ex parte
Young, tribal sovereign immunity does not bar state and substantive
federal law claims for prospective, injunctive relief against
tribal officials in their official capacities for conduct occurring
off of the reservation.[BN]
Plaintiffs-Petitioners SEQUOIA CAPITAL OPERATIONS, LLC; and TCV V,
L.P., are represented by:
Stephen D. Hibbard, Esq.
JONES DAY
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone: (415) 626-3939
Facsimile: (415) 875-5700
E-mail: sdhibbard@jonesday.com
- and -
Todd R. Geremia, Esq.
James M. Gross, Esq.
Shirley M. Chan, Esq.
JONES DAY
250 Vesey Street
New York, NY 10281
Telephone: (212) 326-3939
E-mail: trgeremia@jonesday.com
jgross@jonesday.com
smchan@jonesday.com
TL & CG: SHI Seeks Minimum & OT Wages for Delivery Men
------------------------------------------------------
YUEFENG SHI, on his own behalf and on behalf of others similarly
situated, the Plaintiff, v. TL & CG INC. d/b/a Han; GUOYONG CHEN
a/k/a Guo Yong Chen, "JOHN 01 DOE", "PETER DOE", and "JOHN 02 DOE",
the Defendants, Case No. 1:19-cv-08502 (S.D.N.Y., Sept. 12, 2019),
alleges Defendants violated the Fair Labor Standards Act and New
York Labor Law by engaging in pattern and practice of failing to
pay its employees, including Plaintiff, minimum wage for each hour
worked and overtime compensation for all hours worked over 40 each
workweek.
From February 20, 2018 to July 30, 2019, the Plaintiff was employed
by Defendants to work as a Deliveryman at Defendant's facility at
854 10th Ave, New York, NY 10019.[BN]
Attorney for the Plaintiff, proposed FLSA Collective and
potential Rule 23 Class, are:
John Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard Suite 119
Flushing, NY 11355
Telephone: (718) 762-1324
TOYOTA MOTOR: Stockinger Files Class Certification Bid
------------------------------------------------------
In the lawsuit captioned PAUL STOCKINGER, ELIZABETH STOCKINGER,
GAILYN KENNEDY, BASUDEB DEY, ELIEZER CASPER, YVETTE ALLEY, and
NORMAN BEIL on behalf of themselves and all others similarly
situated v. TOYOTA MOTOR SALES, U.S.A., INC., a California
corporation, Case No. 2:17-cv-00035-VAP-KS (C.D. Cal.), the
Plaintiffs seek certification of these Classes and Sub-Classes and
appointment of class representatives:
* Nationwide AC2 Class:
All persons or entities who purchased, leased, or own an
"AC2 Class Vehicle" equipped with a DENSO AC2 HVAC module.
The Nationwide AC2 Class is represented by Plaintiffs
Elizabeth Stockinger, Paul Stockinger, Gailyn Kennedy,
Eliezer Casper and Norman Beil.
"AC2 Class Vehicle" means the 2009-2015 Sienna, 2007-2015
Lexus ES 350, 2007-2015 Avalon, 2013-2015 Avalon HV,
2009-2015 Venza, 2008-2015 Highlander, 2013-2014 Lexus ES
300h, 2008-2014 Lexus RX 350 and 2010-2014 Lexus RX 450;
* Nationwide AC3 Class:
All persons or entities who purchased, leased, or own an
"AC3 Class Vehicle" equipped with a DENSO AC3 HVAC module.
The Nationwide AC3 Class is represented by Plaintiffs
Basudeb Dey and Yvette Alley.
"AC3 Class Vehicle" means the 2009-2015 Corolla, 2010-2015
Prius, 2012-2015 Prius V and 2006-2015 RAV4. Collectively,
"AC2 Class Vehicle" and "AC3 Class Vehicle" are referred to
herein as "Class Vehicles";
* California AC2 Sub-Class:
All persons or entities who purchased or leased an AC2 Class
Vehicle in the State of California and all persons or
entities in the State of California who purchased, leased or
own an AC2 Class Vehicle. The California AC2 Class is
represented by Plaintiff Norman Beil;
* California AC3 Sub-Class:
All persons or entities who purchased or leased an AC3 Class
Vehicle in the State of California and all persons or
entities in the State of California who purchased, leased or
own an AC3 Class Vehicle. The California AC3 Sub-Class is
represented by Plaintiff Basudeb Dey;
* Song-Beverly AC2 Sub-Class:
All persons or entities who purchased or leased an AC2 Class
Vehicle in the State of California. The Song-Beverly AC2
Sub-Class is represented by Plaintiff Norman Beil;
* Song-Beverly AC3 Sub-Class:
All persons or entities who purchased or leased an AC3 Class
Vehicle in the State of California. The Song-Beverly AC3
Sub-Class is represented by Plaintiff Basudeb Dey;
* Oklahoma AC3 Sub-Class:
All persons or entities who purchased or leased an AC3 Class
Vehicle in the State of Oklahoma and all persons or entities
in the State of Oklahoma who purchased, leased or own an AC3
Class Vehicle. The Oklahoma AC3 Sub-Class is represented by
Plaintiff Yvette Alley;
* Florida AC2 Sub-Class:
All persons or entities who purchased or leased an AC2 Class
Vehicle in the State of Florida and all persons or entities
in the State of Florida who purchased, leased or own an AC2
Class Vehicle. The Florida AC2 Sub-Class is represented by
Plaintiff Eliezer Casper;
* Virginia AC2 Sub-Class:
All persons or entities who purchased or leased an AC2 Class
Vehicle in the Commonwealth of Virginia and all persons or
entities in the Commonwealth of Virginia who purchased,
leased or own an AC2 Class Vehicle. The Virginia AC2
Sub-Class is represented by Plaintiff Gailyn Kennedy; and
* Washington AC2 Sub-Class:
All persons or entities who purchased or leased an AC2 Class
Vehicle in the State of Washington and all persons or
entities in the State of Washington who purchased, leased or
own an AC2 Class Vehicle. The Washington AC2 Sub-Class is
represented by Plaintiffs Elizabeth Stockinger and Paul
Stockinger.
In the alternative, the Plaintiffs seek an order certifying this
class under Rules 23(a) and 23(b)(2) of the Federal Rules of Civil
Procedure and appointing these class representatives:
All persons or entities who currently own or lease a Class
Vehicle (the "Nationwide 23(b)(2) Class"). The Nationwide
23(b)(2) Class is represented by Plaintiffs Paul Stockinger,
Elizabeth Stockinger, Gailyn Kennedy, Basudeb Dey, Eliezer
Casper, Yvette Alley, and Norman Beil.
Excluded from the Classes are: (a) all Judges who have presided
over the Action and their spouses; (b) all current employees,
officers, directors, agents, and representatives of the Defendant,
and their family members; (c) any affiliate, parent or subsidiary
of the Defendant and any entity in which the Defendant has a
controlling interest; (d) issuers of extended vehicle warranties
and service contracts; (e) any person or entity who settled with
and released the Defendant from any causes of action asserted in
the Plaintiffs' Amended Class Action Complaint; (f) any person or
entity who files a timely and proper request for exclusion, and (g)
any person or entity who purchased a Class Vehicle in the state of
Hawaii.
The Plaintiffs also ask the Court to appoint Kessler Topaz Meltzer
& Check, LLP as Lead Class Counsel and Capstone Law, APC as Class
Counsel under Rule 23(g).
The Court will commence a hearing on December 16, 2019, at 2:00
p.m., to consider the Motion.[CC]
The Plaintiffs are represented by:
Paul R. Kiesel, Esq.
Jeffrey A. Koncius, Esq.
Nicole Ramirez, Esq.
KIESEL LAW LLP
8648 Wilshire Boulevard
Beverly Hills, CA 90211-2910
Telephone: (310) 854-4444
Facsimile: (310) 854-0812
E-mail: kiesel@kiesel.law
koncius@kiesel.law
ramirez@kiesel.law
- and -
Joseph H. Meltzer, Esq.
Melissa L. Troutner, Esq.
Tyler S. Graden, 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
E-mail: jmeltzer@ktmc.com
mtroutner@ktmc.com
tgraden@ktmc.com
nlesser@ktmc.com
Plaintiff Norman Beil is represented by:
Tarek H. Zohdy, Esq.
Cody R. Padgett, Esq.
CAPSTONE LAW APC
1875 Century Park East, Suite 1000
Los Angeles, CA 90067
Telephone: (310) 556-4811
Facsimile: (310) 943-0396
E-mail: Tarek.Zohdy@capstonelawyers.com
Cody.Padgett@capstonelawyers.com
TTEC HEALTHCARE: Seeks Stay of Class Cert. Order in Beattie Suit
----------------------------------------------------------------
Defendants TTEC Healthcare Solutions, Inc. and TTEC Holdings, Inc.,
filed with the United States Court of Appeals for the Tenth Circuit
a petition for writ of mandamus in the matter titled In re: TTEC
Healthcare, et al., Case No. 19-1339.
The Defendants-Appellants move the Appeals Court for stay of Judge
Raymond P. Moore's July 3, 2019 ruling issued in the lawsuit
entitled SONDRA BEATTIE, individually and on behalf of all other
similarly situated individuals, and FRANCIS HOUSTON, JR.,
individually and on behalf of all other similarly situated
individuals v. TTEC HEALTHCARE SOLUTIONS, INC., and TTEC HOLDINGS,
INC., Case No. 1:18-CV-03098-RM-NRN, in the United States District
Court for the District of Colorado - Denver.
As reported in the Class Action Reporter on Aug. 13, 2019, Judge
Moore on July 3 (i) granted the Plaintiffs' motion for conditional
certification; (ii) denied as moot the Defendants' motion to stay;
and (iii) granted in part and denied in part without prejudice the
Defendants' motion to compel arbitration.
Plaintiffs Beattie and Houston filed the lawsuit as a collective
and class action, alleging, among other things, violations of the
Fair Labor Standards Act. Numerous other Plaintiffs have opted in
to the lawsuit by filing consents to join.
On May 21, 2019, the Court granted the Defendants' motion to compel
arbitration with respect to Plaintiffs Beattie and Houston, while
allowing the case to proceed with respect to the other Plaintiffs.
The Plaintiffs' motion for conditional certification was filed
before that order.
After the order, the Defendants filed a motion to stay briefing on
the issue of conditional certification. There was no ruling on the
motion to stay, and the Defendants later filed a response to the
motion for conditional certification. The Plaintiffs filed a
response to the Defendants' motion to stay. In addition, the
Defendants filed a motion to compel arbitration with respect to the
78 opt-in Plaintiffs, and the Plaintiffs filed a response.
The Plaintiffs seeks conditional certification of a proposed class
consisting of all current and former Customer Service
Representatives who worked for the Defendants at any of their call
center facilities at any time on or after Dec. 3, 2015, up through
and including, judgment. The proposed notice and consent forms are
attached to their motion.[BN]
Plaintiffs-Respondents FRANCIS HOUSTON, JR., individually and on
behalf of all others similarly situated, and SONDRA BEATTIE,
individually and on behalf of all others similarly situated, are
represented by:
Rod M. Johnston, Esq.
Kevin Jay Stoops, Esq.
Matthew L. Turner, Esq.
SOMMERS SCHWARTZ, PC
One Town Center, Suite 1700
Southfield, MI 48076
Telephone: (248) 335-0300
E-mail: rjohnston@sommerspc.com
kstoops@sommerspc.com
mturner@sommerspc.com
Defendants-Petitioners TTEC HEALTHCARE SOLUTIONS, INC. and TTEC
HOLDINGS, INC. are represented by:
Marcy Geoffrey Glenn, Esq.
HOLLAND & HART LLP
555 17th Street, Suite 3200
Denver, CO 80202
Telephone: (303) 295-8000
E-mail: mglenn@hollandhart.com
- and -
Jessica E. Whelan, Esq.
HOLLAND & HART LLP
9555 Hillwood Drive, 2nd Floor
Las Vegas, NV 89134
Telephone: (702) 669-4600
E-mail: jewhelan@hollandhart.com
- and -
Arthur J. Rooney, Esq.
BAKER MCKENZIE LLP
300 East Randolph Street, Suite 5000
Chicago, IL 60601
Telephone: (312) 861-8000
E-mail: Arthur.Rooney@bakermckenzie.com
ULTA BEAUTY: Smith-Brown's Bid to Certify Class Under Advisement
----------------------------------------------------------------
The Hon. Jorge L. Alonso issued an order in the lawsuit captioned
KIMBERLY LAURA SMITH-BROWN, et al. v. ULTA BEAUTY, INC. and ULTA
SALON, COSMETICS & FRAGRANCE, INC., Case No. 1:18-cv-00610 (N.D.
Ill.), ruling that:
-- the Plaintiffs' motion to certify class is taken under
advisement;
-- the Plaintiffs' renewed motion to seal is taken under
advisement;
-- the parties' joint motion for a briefing schedule is
granted;
-- the Defendants' response to the motion to certify class
shall be filed by January 15, 2020;
-- the Plaintiffs' reply shall be filed by March 18, 2020; and
-- the motion hearing set for September 17, 2019, is stricken.
The Plaintiffs previously moved to seal certain materials submitted
in support of their motion for class certification. The Court
denied the motion because the Plaintiffs merely stated that the
Defendants had designated the documents as confidential in
discovery and the Plaintiffs presented no substantive argument as
to why the materials should be sealed, according to the Order.
The Plaintiffs' renewed motion to seal is narrower than its
predecessor, but it still seeks to seal numerous documents and
portions of documents containing information that the Defendants
claim to preserve as confidential, Judge Alonso notes. "Secrecy is
fine at the discovery stage, before the material enters the
judicial record. But those documents, usually a small subset of
all discovery, that influence or underpin the judicial decision are
open to public inspection unless they meet the definition of trade
secrets or other categories of bona fide long-term
confidentiality," Judge Alonso adds, citing Baxter Int'l, Inc. v.
Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002).
The Court will have a better opportunity to substantively evaluate
the content of the documents when it considers the
class-certification motion, Judge Alonso says. Accordingly, the
Court takes the renewed motion to seal under advisement and will
decide it along with the class-certification motion. Until further
order of Court, the materials will remain provisionally under
seal.[CC]
UNIVERSITY OF KENTUCKY: Niblock Files Class Suit in Kentucky
------------------------------------------------------------
A class action lawsuit has been filed against University of
Kentucky. The case is styled as Elizabeth Niblock and Meredith
Newman, individually and on behalf of all those similarly situated,
Plaintiffs v. University of Kentucky, Board of Trustees, Mitch
Barnhart and Eli Capilouto, Defendants, Case No. 5:19-cv-00394-KKC
(E.D. Ky., Sept. 25, 2019).
The docket of the case states the nature of suit as Civil Rights:
Education filed pursuant to the Educational Amendments 1992 - Sex
Discrimination.
The University of Kentucky (UK) is a public co-educational
university in Lexington, Kentucky, founded in 1865 by John Bryan
Bowman as the Agricultural and Mechanical College of Kentucky.[BN]
The Plaintiffs are represented by:
Barbara D. Bonar, Esq.
Bonar, Bucher & Rankin, PSC
3611 Decoursey Avenue
Covington, KY 41015
Tel: (859) 431-3333
Fax: (859) 392-3900
Email: bdbonar@lawatbdb.com
- and -
Beatriz Mate-Kodjo, Esq.
Newkirk Zwagerman, P.L.C.
521 E. Locust Street, Suite 300
Des Moines, IA 50309
Tel: (515) 883-2000
VIEWRAY INC: Nov. 12 Lead Plaintiff Bid Deadline
------------------------------------------------
Kahn Swick & Foti, LLC ("KSF") and KSF partner, former Attorney
General of Louisiana, Charles C. Foti, Jr., remind investors that
they have until November 12, 2019 to file lead plaintiff
applications in a securities class action lawsuit against ViewRay,
Inc. (VRAY), if they purchased the Company's shares between March
15, 2019 and August 8, 2019, inclusive (the "Class Period"). This
action is pending in the United States District Court for the
Northern District of Ohio.
What You May Do
If you purchased shares of ViewRay and would like to discuss your
legal rights and how this case might affect you and your right to
recover for your economic loss, you may, without obligation or cost
to you, contact KSF Managing Partner Lewis Kahn toll-free at
1-877-515-1850 or via email (lewis.kahn@ksfcounsel.com), or visit
https://www.ksfcounsel.com/cases/nasdaqgs-vray/ to learn more. If
you wish to serve as a lead plaintiff in this class action, you
must petition the Court by November 12, 2019.
About the Lawsuit
ViewRay and certain of its executives are charged with failing to
disclose material information during the Class Period, violating
federal securities laws.
On August 8, 2019, post-market, ViewRay disclosed disappointing
2Q2019 results including a net loss of $30.8 million, declining
levels of orders and backlog and other operational issues and also
announced significant cuts to full fiscal year 2019 guidance.
On this news, the price of ViewRay's shares plummeted by more than
50% on unusually high trading volume.
The case is Corwin v. ViewRay, Inc., 19-cv-2115.
About Kahn Swick & Foti, LLC
KSF, whose partners include the former Louisiana Attorney General
Charles C. Foti, Jr., is a law firm focused on securities,
antitrust and consumer class actions, along with merger &
acquisition and breach of fiduciary litigation against publicly
traded companies on behalf of shareholders. The firm has offices in
New York, California and Louisiana. [GN]
WARREN COUNTY, OH: Dismissal of Adoptive Family Suit Sought
-----------------------------------------------------------
In the case, Adoptive Family #1 and Their Daughter A., et al,
Plaintiffs, v. Warren County, Ohio/Warren County Board of
Commissioners Defendants, Case No. 1:18-cv-179 (S.D. Ohio), the
parties jointly asked Magistrate Judge Karen L. Litkovitz of the
U.S. District Court for the Southern District of Ohio, Western
Division, to dismiss the matter with prejudice.
The Court approved the class action settlement on June 10, 2019.
The effective date of the Agreement will be the date of the Court
order approving the Settlement Agreement after a fairness hearing.
Pursuant to the terms of the settlement agreement which has now
been approved by the Court, the parties jointly move to dismiss the
case with prejudice, subject to the continuing jurisdiction of the
Court for a limited period of 24 months.
A full-text copy of the Joint Motion to Dismiss, filed Aug. 16,
2019, is available at https://is.gd/A9eCzB from Leagle.com.
Adoptive Family #1 and Their Daughter A., Individually and on
behalf of class of similarly situated children and parents,
Adoptive Family #2 and Their Children B. and C., Individually and
on behalf of class of similarly situated children and parents &
Adoptive Family #3 and Their Children D. and E., Plaintiffs,
represented by Barbara Thornell Ginn -- Barbara@GinnLLC.com --
Jennifer Lynn Branch -- jbranch@gbfirm.com -- Gerhardstein &
Branch
Co. LPA, Mary Caroline Hyatt -- chyatt@gbfirm.com -- Gerhardstein
&
Branch Co LPA & Alphonse Adam Gerhardstein --
agerhardstein@gbfirm.com -- Gerhardstein & Branch Co. LPA.
Warren County, Ohio/Warren County Board Of Commissioners,
Defendant, represented by John Stephen Teetor --
steetor@isaacwiles.com -- Isaac Wiles Burkholder & Teetor, LLC,
Kathryn M. Horvath, Warren County Prosecutor's Office & Aaron
Michael Glasgow -- aglasgow@isaacwiles.com -- Isaac, Wiles,
Burkholder & Teetor, LLC.
XEROX CORP: Judge Nixed Settlement, $7.5MM Atty. Fees Over Tie-Up
-----------------------------------------------------------------
Tom McParland, writing for the New York Law Journal, reports that a
Manhattan Supreme Court judge has rejected class certification and
a proposed settlement in a shareholder lawsuit over Xerox Corp.'s
planned tie-up with Japanese multinational photography firm
Fujifilm Holdings Corp., saying the deal was unfair to Xerox
investors.
The proposed settlement, announced last May, came as a win for
activist investors Carl Icahn and Darwin Deason, who agreed to drop
claims in a consolidated class action in exchange for the
resignation of Xerox's CEO and five other board members.
The deal, which scrapped the $6.1 billion merger to give Fuji a
majority stake in Xerox, included $7.5 million in attorney fees for
class counsel, gave Icahn and Deason control of the Xerox board.
Fuji has since filed its own lawsuit, seeking $1 billion are a
result of the scuttled transaction.
A class of Xerox shareholders, however, had not been certified by
the time the settlement was announced, and a group of 34 investors
opposed the agreement on the grounds that it did not adequately
compensate the class.
In a 15-page ruling, Justice Barry R. Ostrager said that Deason and
Icahn did not adequately represent represent the class and found
the deal not to be in the best interests of the shareholders. The
settlement, he said, sought to bind a class that had not been
certified to major corporate actions, without providing any
monetary relief in exchange for broad releases of derivative
claims against Xerox directors.
The ruling also knocked out the proposed $7.5 million award of
attorney fees to class counsel from Bernstein Litowitz Berger &
Grossmann, Kessler Topaz Meltzer & Check and Grant & Eisenhofer.
"There were not exigent circumstances requiring purported class
counsel to enter into the [settlement] other than the desire of
Deason and Icahn to achieve control of the Xerox board, which
purported class counsel facilitated," Ostrager said in an opinion
published dated Sept. 10.
"The net result of the actions of the purported class
representatives and purported class counsel was to transfer control
of a public corporation to Messrs. Deason and Icahn via a private
agreement that offered no tangible benefits to the interests of the
class," he said.
The ruling was filed September 12, according to an online docket.
An attorney for the proposed class did not immediately return a
call September 13 seeking comment on the ruling.
Eduard Korsinsky, Esq. -- ek@zlk.com -- founding partner of Levi &
Korsinsky who represented objecting shareholder Carmen Ribbe, said
his team would continue to press claims on behalf of Xerox
shareholders who were harmed in the deal.
"We're gratified that Justice Ostrager saw our point of view, and
we look forward to litigating the case on behalf of shareholders of
Xerox, who have been damaged considerably," he said.
Counsel for Xerox could not immediately be reached for comment, and
an attorney for Fuji declined to comment on the ruling.
The objecting shareholders were represented by attorneys from Levi
& Korsinsky and Wolf Haldenstein Adler Freeman & Herz in New York.
Xerox was represented by Paul, Weiss, Rifkind, Wharton & Garrison
in New York, and Fuji was represented by attorneys from Morrison &
Foerster.
The case was captioned In re Xerox Corporation Consolidated
Shareholder Litigation. [GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2019. All rights reserved. ISSN 1525-2272.
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